Common use of Indemnification Limitations Clause in Contracts

Indemnification Limitations. If the indemnification under Section 6 is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then the Company shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Company and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this Section 7, neither Buyer nor any holder of Registrable Securities shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.

Indemnification Limitations. If Without limiting any of the indemnification under provisions of Section 6 is unavailable 9 of the Purchase Agreement, Licensor agrees to an Indemnified Party or insufficient indemnify and to hold an Indemnified Party VIE harmless from and against and in respect of, and VIE agrees to indemnify and to hold Licensor harmless from and against and in respect of, any losses, damages, claims, liabilities, costs and expenses (including without limitation any reasonable legal, accounting or other expenses for investigating or defending any Lossesactions or threatened actions) incurred by the indemnified party in connection with: (a) any damage or deficiency resulting from any misrepresentation, then breach of warranty or nonfulfillment of any agreement or covenant on the Company shall contribute part of the indemnifying party under this Agreement; (b) any and all claims made against the indemnified party in respect of liabilities or obligations of the indemnifying party (including liabilities for taxes) relating to the amount paid or payable by Programs, the Intellectual Property Rights, Additional Methods, and related rights and assets to the extent such Indemnified Party, in such proportion as is appropriate to reflect the relative fault liabilities and obligations of the Company and Indemnified Party in connection with indemnifying party are not to be assumed by the actions, statements indemnified party or are not attributable to acts or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the Company indemnified party; (c) any and Indemnified Party shall be determined all loss, liability, damage, cost or expense suffered or incurred by reference to, among other things, whether any action in question, including any untrue VIE based on or arising out of the infringement or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result infringement of any Losses shall be deemed to include of the Programs as they exist on the date hereof of the proprietary rights of any third party; and (d) all reasonable costs and expenses (including attorneys’ or other fees or expenses ' fees) incurred by such the indemnified party in connection with any proceeding claim, action, suit, proceeding, demand, assessment or judgment incident to any of the matters the indemnified party is indemnified against by the indemnifying party in this Agreement. 12. CONFIDENTIALITY (a) Information is the essence of this Agreement. Accordingly, VIE, on behalf of itself and its employees, agrees that all of said Information shall be held in confidence by VIE and that VIE shall not disclose the same to others, nor (directly or indirectly) assist others to use the same for itself or others except in furtherance of the transactions contemplated in Section 3 above or as otherwise required by law. Notwithstanding anything to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 6 was available contrary contained above, VIE shall obtain Licensor's express prior written consent to such party in accordance with its terms. It is agreed that it would each disclosure of Source Code to third parties, which consent shall not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this Section 7, neither Buyer nor any holder of Registrable Securities shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionunreasonably withheld.

Indemnification Limitations. If (a) Notwithstanding anything in this Agreement to the contrary, (i) neither the Purchaser Indemnified Parties nor the Seller Indemnified Parties shall be entitled to indemnification for any Losses claimed under Sections 8.2(a) or 8.3(a), as applicable, unless and until the aggregate amount of all Losses incurred by the Purchaser Indemnified Parties or Seller Indemnified Parties, as applicable, exceeds $200,000.00 (the “Basket Amount”), in which event the Purchaser Indemnified Parties or Seller Indemnified Parties, as applicable, may claim indemnification for all Losses, including all such Losses less than or equal to the Basket Amount, (ii) the aggregate amount of Losses claimed under Section 6 is unavailable to an 8.2(a) by the Purchaser Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then the Company shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Company and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made byParties, or relates to information supplied byunder Section 8.3(a) by the Seller Indemnified Parties, shall in each case not exceed $1,100,000.00 and (iii) the Company aggregate amount of Losses claimed under Section 8.2(b) by the Purchaser Indemnified Parties, or under Section 8.3(b) by the Seller Indemnified PartyParties, and shall in each case not exceed the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentenceFinal Purchase Price. Notwithstanding the provisions of foregoing, the limitations set forth in this Section 78.4 shall not apply to any Losses arising out of or related to fraud, neither Buyer nor willful misconduct or criminal acts committed by or on behalf of an Indemnifying Party. (b) All Losses for which any holder of Registrable Securities Indemnified Party would otherwise be entitled to indemnification under this Article VIII shall be required to contribute, in the aggregate, any amount in excess of reduced by the amount by which the net of insurance proceeds actually received by such Indemnified Party in respect of any Losses incurred by such Indemnified Party (net of any fees, costs and expenses of collection or increased premiums, if applicable). In the event any Indemnified Party is entitled to any insurance proceeds in respect of any Losses for which such Indemnified Party is entitled to indemnification pursuant to this Article VIII, such Indemnified Party shall use commercially reasonable efforts to obtain or receive such proceeds; provided, however, that such Indemnified Party shall have no obligation to litigate against the applicable third party, including any insurance company, to obtain any such proceeds. In the event that any such insurance proceeds are actually received by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, an appropriate refund shall be made promptly by the relevant Indemnified Parties to the Indemnifying Party in an amount not to exceed the lesser of (i) the amount by which (A) the amount received by the Indemnified Party, net of any fees, costs and expenses or increased premiums incurred by such Indemnified Party in collecting such amount, plus the payment received from the sale Indemnifying Party, exceeds (B) the total Losses suffered or incurred by the Indemnified Party with respect to the applicable claim for indemnification; (ii) the amount received by the Indemnified Party, net of all of their Registrable Securities any fees, costs and expenses or increased premiums incurred by such Indemnified Party in collecting such amount; and (iii) the amount paid by the Indemnifying Party pursuant to this Article VIII. (c) No Indemnified Party shall be entitled to indemnification for any punitive or exemplary Losses except, in each case, to the extent such Registration Statement or related prospectus exceeds Losses are finally awarded in connection with a Third Party Claim against the amount of Indemnified Party. (d) Each Indemnified Party shall use its commercially reasonable efforts to mitigate any damages that such party has otherwise been Losses for which it is entitled to indemnification pursuant to this Article VIII to the extent required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionApplicable Law.

Indemnification Limitations. If the indemnification under Section 6 is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then the Company shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Company and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this Section 7, neither each Buyer nor any holder of Registrable Securities shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.

Indemnification Limitations. If (a) The maximum aggregate amount of Purchaser Indemnifiable Damages in respect of all claims made under this Article X shall not exceed ** ** the indemnification under “Cap”); provided, however, that this Section 6 is unavailable 10.3(a) shall not apply to an Indemnified Party or insufficient to hold an Indemnified Party harmless any claim for Purchaser Indemnifiable Damages arising out of any Losses, then Fraud. Any amount of Purchaser Indemnifiable Damages that would have been payable by the Company at a given time but for the application of the Cap as in effect at such time shall contribute become immediately due and payable on the date of any subsequent increase in the Cap ** **. If, at any time prior to the amount paid or date on which any Earnout Payment payable by such is actually made pursuant to this Agreement, any Purchaser Indemnified Party, in such proportion as is appropriate Person delivers to reflect the relative fault Company written notice pursuant to this Article X of the Company existence of a claim for Purchaser Indemnifiable Damages, the Purchaser may defer payment of such Earnout Payment then payable in an aggregate amount equal to the estimated amount of Purchaser Indemnifiable Damages incurred or reasonably expected to be incurred by the Purchaser Indemnified Persons in respect of any such claim until such time as such claim is fully and finally resolved. (b) Except in the case of any Fraud or as explicitly set forth in the Registration Rights Agreement, the right of indemnification by the Purchaser Indemnified Party in connection with Persons ** **, pursuant to and subject to the actionsterms, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault conditions and limitations of this Article X, shall be the sole and exclusive remedy of the Company and Purchaser Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, Persons against the Company with respect to this Agreement, any Ancillary Agreement to which the Company is party or the Indemnified Partyany certificate or agreement referenced herein, and the parties’ relative intentPurchaser (on behalf of itself and the other Purchaser Indemnified Persons) hereby irrevocably waives any and all other rights such Persons may have to make claims against the Company, knowledgeincluding under statute, access to information and opportunity to correct common law, tort or prevent such actionequity, statement or omission. The amount paid or payable by a party as a result of Purchaser Indemnifiable Damages or any Losses shall be deemed to include any reasonable attorneys’ or and all other fees or expenses damages incurred by such party in connection any Purchaser Indemnified Person with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant respect to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this Section 7, neither Buyer nor any holder of Registrable Securities shall be required to contribute, in the aggregateAgreement, any amount Ancillary Agreement to which the Company is a party or any certificate or agreement referenced herein, whether or not such damages are in excess of the amount Cap; provided, however, that this sentence shall not be deemed a waiver by which any Purchaser Indemnified Person to seek specific performance or injunctive relief in the net proceeds actually received case of the Company’s failure to perform or comply with its covenants or agreements made in this Agreement, any Ancillary Agreement executed by such party from the sale of all of their Registrable Company or any certificate or agreement executed by the Company in relation hereto or thereto. ** ** Text Omitted and Filed Separately with the Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.and Exchange Commission. Confidential Treatment Requested Under 17 C.F.R. Sections 200.80(b)(4) and 240.24b-2

Indemnification Limitations. (a) Damages that may be recovered shall take account of and be reduced by (i) any amounts recovered by the Indemnified Persons pursuant to any indemnification by or indemnification agreement with any third party, (ii) the amount of any insurance proceeds, contribution payments or reimbursements actually received or receivable by the Indemnified Person in respect thereof and (iii) an amount equal to the amount of any Tax benefit (including for the avoidance of doubt any available net operating loss carry forwards) that is or can be actually realized by the Indemnified Persons in connection with such Damages or any of the circumstances giving rise thereto (each Person named and source identified in clauses (i), (ii) and (iii), a “Collateral Source”). The Indemnified Persons shall use commercially reasonable efforts to seek recovery from all Collateral Sources. If the indemnification amount to be netted hereunder from any payment required under Section 6 9.2 or Section 9.3 is unavailable determined after payment by the Escrow Participants or Acquiror, as applicable, of any amount otherwise required to be paid to an Indemnified Party Person under this Article IX, the Indemnified Persons shall repay to the Indemnifying Person, promptly after such determination, any amount that Indemnifying Person would not have had to pay pursuant to this Section (a) had such determination been made at the time of such payment. The Indemnified Persons will conduct themselves in a reasonable and prudent manner in seeking such indemnification consistent with the manner in which it would conduct itself in the absence of this Article IX. (b) Any indemnification obligations of Acquiror or insufficient Merger Sub pursuant to hold Section 9.3 shall be paid to the Paying Agent for distribution to the Escrow Participants based on their Escrow Participant Indemnity Escrow Amount Pro Rata Share as set forth on the Spreadsheet, by wire transfer of immediately available funds to the Paying Agent within two (2) Business Days after the determination thereof. (c) Any indemnification obligations of the Escrow Participants pursuant to Section 9.2 shall first be paid to Acquiror, by wire transfer of immediately available funds by the Escrow Agent from the Indemnity Escrow Account pursuant to the terms of the Escrow Agreement, and for Section 9.2(b) through 9.2(e) that exceed the Escrow Amount, second, from each Escrow Participant’s Escrow Participant Pro Rata Share, but in no event shall an Escrow Participant be responsible for Damages under Section 9.2(b) through 9.2(e) in excess of such Escrow Participant’s Escrow Participant Pro Rata Share of the Merger Consideration actually received by such Escrow Participant. (d) Notwithstanding anything contained in this Agreement to the contrary, no indemnification shall be available under Section 9.2(a) or Section 9.3(a) unless and until all Damages exceed $375,000 (the “Basket”) after which time the Indemnified Party harmless Persons shall be entitled to be indemnified against and compensated and reimbursed for any Losses, then amounts of Damages in excess of the Company Basket. (e) Amounts indemnifiable hereunder to Acquiror Indemnified Persons on account of Damages shall contribute be reduced on a dollar-for-dollar basis to the extent any such amount paid or payable by such Indemnified Party, was reflected in such proportion as is appropriate to reflect the relative fault Current Liabilities in the calculation of the Company and Indemnified Party in connection Net Working Capital on the Final Adjustment Statement (with the actionsintent of this provision to merely be to avoid “double counting”). (f) The parties hereto agree that, statements or omissions that resulted except in such Losses as well as any other relevant equitable considerations. The relative fault the case of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied byclaims based on Fraud, the Company or provisions of this Article IX are intended to and shall provide the sole and exclusive remedy for the Indemnified Party, Persons following the Closing as to all money damages arising under this Agreement (it being understood that nothing in this Article IX or elsewhere in this Agreement shall affect the Securityholders’ Representative’s indemnification rights in Section 10.10(c) and the parties’ relative intent, knowledge, access rights to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any reasonable attorneys’ specific performance or other fees or expenses incurred by such party in connection with any proceeding equitable remedies to enforce the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to parties’ obligations under this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this Section 7, neither Buyer nor any holder of Registrable Securities shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionAgreement).

Indemnification Limitations. If the The indemnification obligations of Tyson under Section 6 Paragraph 1 shall not apply to Losses: (a) for which payment is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then the Company shall contribute actually made to the amount paid Indemnitee under a valid and collectible insurance policy or payable by such Indemnified Partybond, except in such proportion as is appropriate to reflect the relative fault of the Company and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result respect of any Losses shall be deemed excess beyond the amount of payment under such insurance policy or bond; (b) for which the Indemnitee is entitled to include indemnity and/or payment by reason of having given timely notice of any reasonable attorneys’ circumstance which might give rise to a claim under any insurance policy or other fees or expenses incurred by such party in connection with any proceeding bond, although the terms of which expired prior to the extent such party would have been date of this Agreement; (c) for which the Indemnitee is indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution by Tyson otherwise than pursuant to this Agreement; (d) based upon or attributable to the Indemnitee gaining in fact any remuneration, personal profit or advantage to which she or he was not legally entitled; (e) for an accounting or disgorgement of profits made from the purchase or sale by the Indemnitee of securities of Tyson within the meaning of Section 7 were determined by pro rata allocation 16 (b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the similar provisions of this Section 7, neither Buyer nor any holder state statutory or common law; (f) for the Indemnitee’s reimbursement to Tyson of Registrable Securities shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually bonus or other incentive-based or equity-based compensation previously received by such party the Indemnitee from the sale of all securities of their Registrable Securities pursuant Tyson, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 in connection with an accounting restatement of Tyson or the payment to such Registration Statement Tyson of profits arising from the purchase or related prospectus exceeds sale by the amount Indemnitee of securities in violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act) or under any damages that such party has otherwise been required similar compensation clawback policy of Tyson; (g) brought about or contributed to pay by the dishonesty of Indemnitee; however, notwithstanding the foregoing, Indemnitee shall be protected under this Agreement as to any claims upon which suit may be brought against her or him by reason of any alleged dishonesty on her or his part, unless a judgment or other final adjudication thereof adverse to Indemnitee shall establish that she or he committed acts of active and deliberate dishonesty with actual dishonest purpose and intent which were material to the cause of action so adjudicated; (h) if a final decision by a court having jurisdiction in the matter shall determine that such untrue payment is not lawful; or (i) for which the Indemnitee is finally judicially determined on the merits to have caused through the bad faith or alleged untrue statement dishonesty of the Indemnitee; provided such bad faith or omission or alleged omissiondishonesty was material to the cause of action so adjudicated.

Indemnification Limitations. If the The indemnification obligations of Tyson under Section 6 Paragraph 1 shall not apply to Losses: (a) for which payment is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then the Company shall contribute actually made to the amount paid Indemnitee under a valid and collectible insurance policy or payable by such Indemnified Partybond, except in such proportion as is appropriate to reflect the relative fault of the Company and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result respect of any Losses shall be deemed excess beyond the amount of payment under such insurance policy or bond; (b) for which the Indemnitee is entitled to include indemnity and/or payment by reason of having given timely notice of any reasonable attorneys’ circumstance which might give rise to a claim under any insurance policy or other fees or expenses incurred by such party in connection with any proceeding bond, although the terms of which expired prior to the extent such party would have been date of this Agreement; (c) for which the Indemnitee is indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution by Tyson otherwise than pursuant to this Agreement; (d) based upon or attributable to the Indemnitee gaining in fact any remuneration, personal profit or advantage to which he was not legally entitled; (e) for an accounting of profits made from the purchase or sale by the Indemnitee of securities of Tyson within the meaning of Section 7 were determined by pro rata allocation 16 (b) of the Securities Exchange Act of 1934 and amendments thereto or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the similar provisions of this Section 7any state statutory law or common law; (f) brought about or contributed to by the dishonesty of Indemnitee; however, neither Buyer nor any holder of Registrable Securities notwithstanding the foregoing, Indemnitee shall be required protected under this Agreement as to contribute, in the aggregate, any amount in excess of the amount by claims upon which the net proceeds actually received by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay suit may be brought against him by reason of any alleged dishonesty on his part, unless a judgment or other final adjudication thereof adverse to Indemnitee shall establish that he committed acts of active and deliberate dishonesty with actual dishonest purpose and intent which were material to the cause of action so adjudicated; (g) if a final decision by a court having jurisdiction in the matter shall determine that such untrue payment is not lawful; or (h) for which the Indemnitee is finally judicially determined on the merits to have caused through the bad faith or alleged untrue statement dishonest of the Indemnitee; provided such bad faith or omission or alleged omissiondishonesty was material to the cause of action so adjudicated.

Indemnification Limitations. (i) If the indemnification amount with respect to which any claim is made under this Section 6 is unavailable 4.3 (an “Indemnity Claim”) gives rise to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then the Company shall contribute a currently realizable Tax Benefit to the party making the claim (or would give rise to such a benefit if the party making the claim were a taxable entity), the indemnity payment shall be reduced by the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Company Tax Benefit available to the party making the claim. To the extent such Indemnity Claim does not give rise to a currently realizable Tax Benefit, if the amount with respect to which any Indemnity Claim is made gives rise to a subsequently realized Tax Benefit to the party that made the claim, such party shall refund to the indemnifying party the amount of such Tax Benefit when, as and Indemnified Party if realized. For the purposes of this Agreement, any subsequently realized Tax Benefit shall be treated as though it were a reduction in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault amount of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Partyinitial Indemnity Claim, and the parties’ relative intentliabilities of the parties shall be redetermined as though both occurred at or prior to the time of the indemnity payment. For purposes of this paragraph, knowledgea “Tax Benefit” means an amount by which the Tax liability of the party (or group of corporations including the party) is reduced (including, access without limitation, by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to information and opportunity to correct refund, credit or prevent such action, statement or omissionotherwise) plus any related interest received from the relevant taxing authority. The amount paid or payable by Where a party as a result of has other losses, deductions, credits or items available to it, the Tax Benefit from any Losses losses, deductions, credits or items relating to the Indemnity Claims shall be deemed to include any reasonable attorneys’ be realized only after the utilization of such other losses, deductions, credits or other fees or expenses incurred by such party in connection with any proceeding items. For the purposes of this paragraph, a Tax Benefit is “currently realizable” to the extent it can be reasonably anticipated that such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not Tax Benefit will be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to realized in the immediately preceding sentence. Notwithstanding current taxable period or year or in any tax return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the provisions of this Section 7, neither Buyer nor any holder of Registrable Securities shall be required to contribute, in the aggregate, any amount in excess date of the amount by which the net proceeds actually received by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionIndemnity Claim.

Indemnification Limitations. If the indemnification under Section 6 is unavailable Notwithstanding any other provisions of this Agreement, with regard to an Indemnified Party or insufficient to hold an Indemnified Party harmless for claims by any Losses, then the Company shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect except for claims arising out of or relating to: (i) Section 1.3, 2.1, 2.2, 3.1, 3.2, 4.1 or 4.2 hereof, (ii) fraud by Timeline, WorkWise or the relative fault UK Subsidiary or any of the Company and Indemnified Party their employees, agents or officers in connection with the actionsentering into of this Agreement or the consummation of a Closing hereunder, statements (iii) fraud by the Buyer or omissions that resulted Global or any of their employees, agents or officers in connection with the entering into of this Agreement or the consummation of a Closing hereunder and (iv) payment obligations with respect to the First Acquisition Cash Consideration, Second Acquisition Cash Consideration, payments under the Buyer Notes, the Assumed Liabilities or the Royalty Payments, such Losses as well as any other relevant equitable considerations. The relative fault claims shall be subject to the following limitations and conditions: (a) Claims for indemnification made under this Agreement shall be required to be made by delivering notice to the Party from whom indemnification is sought no later than the expiration of twelve months from the Company and applicable Closing Date. (b) No claim for indemnification may be made until the aggregate amount of all Damages incurred by such Indemnified Party exceeds an amount equal to twenty thousand dollars ($20,000) (the “Indemnification Threshold”), thereafter such Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates entitled to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this Section 7, neither Buyer nor any holder of Registrable Securities shall be required to contribute, in the aggregate, any amount hereunder in excess of the Indemnification Threshold. (c) The maximum aggregate amount by which that the net proceeds Timeline Indemnified Parties may be entitled to receive under the indemnification provisions hereof shall be amount equal to all amounts actually received by such party from paid hereunder as First Acquisition Cash Consideration or Second Acquisition Cash Consideration and under the sale Buyer Notes or the Global Guaranty. (d) The maximum aggregate amount that the Buyer Indemnified Parties may be entitled to receive under the indemnification provisions hereof shall be amount equal to all amounts actually paid hereunder as First Acquisition Cash Consideration or Second Acquisition Cash Consideration and under the Buyer Notes or the Global Guaranty. (e) The indemnification rights provided in this Section 8 shall constitute the exclusive remedy with respect to breach of all representations, warranties, covenants and agreements contained in this Agreement, or based directly or indirectly on any rights or obligations established in this Agreement, whether any claims or causes of their Registrable Securities pursuant action asserted with respect to such Registration Statement matters are brought in contract, tort or related prospectus exceeds any other legal theory whatsoever; provided, that, the amount foregoing notwithstanding, in the event of any damages that such party has otherwise been required a breach of a covenant contained in Section 5, the Parties shall be entitled to pay by reason injunctive relief or specific performance in accordance with applicable law; and the foregoing notwithstanding, this provision shall not be the exclusive remedy with respect to breaches of, or causes of such untrue action arising out of or alleged untrue statement with respect to, the Source Code License, or omission or alleged omissionthe Patent License.

Indemnification Limitations. (a) Seller shall not be liable for any Losses (i) unless the Claim for such Losses is brought prior to the Claim Release Date, and (ii) unless and until the aggregate amount of Losses incurred by Buyer with respect to all such Claims exceeds $100,000 (the “Deductible”), in which case Seller shall be liable only for the amount of such indemnifiable Losses in excess of the Deductible amount. (b) Buyer shall not be entitled to indemnification pursuant to Section 9.2(a)(i) for breaches of representations in Article V, and Seller shall not be liable for Losses in respect thereof, in excess of $500,000 (the “Cap”). Buyer shall not be entitled to indemnification pursuant to Section 9.2(a)(i) for breaches of representations in Article IV, and Seller shall not be liable for Losses in respect thereof, in excess of an amount equal to the Purchase Price plus the amount of the Contingent Payment actually paid to Seller or that is due and payable to Seller (it being understood that if no Contingent Payment has actually been paid to Seller, Buyer’s ability to recover amounts in excess of the Purchase Price will be limited only to setoff of amounts due and payable in respect of the Contingent Payment). Notwithstanding the foregoing, the Cap shall not apply to any indemnification obligations for any breach of any of the Fundamental Representations; provided, however, in no event shall Seller be obligated to indemnify Buyer under this Article IX in excess of an amount equal to the Purchase Price plus the amount of the Contingent Payment actually paid to Seller or that is due and payable to Seller (it being understood that if no Contingent Payment has actually been paid to Seller, Buyer’s ability to recover amounts in excess of the Purchase Price will be limited only to setoff of amounts due and payable in respect of the Contingent Payment), except in the case of fraud by Seller. (c) Furthermore, no claim for indemnification may be made or pursued (and each Party, as applicable, expressly waives any right to indemnification) (i) for any matters expressly referred to in the Disclosure Schedule, (ii) for any consequential damages that are not reasonably foreseeable, special or punitive damages, economic loss or loss of profits, except to the extent such damages or loss are payable to a third party, (iii) for any matters attributable to the acts of, or on behalf of or consented to by, such Party, (iv) by Buyer or any of its successors or assigns, after the Purchased Shares, Assets, or business to which the claim relates cease to be owned by or controlled by Buyer, (v) by Buyer for any environmental matter, unless and until a Third Party Claim has been made against Buyer by any third party (other than Affiliates of Buyer), including any Governmental Entity, (vi) by Buyer for any matter under Section 9.2(a)(i) for misrepresentations of Article V (other than Fundamental Reps) to the extent such Buyer has Buyer Knowledge of such claim as of the date hereof or the Closing, or for misrepresentations of the Fundamental Representations of Article V to the extent Buyer has actual knowledge (i.e., no reasonable inquiry obligation or constructive knowledge) of such claim as of the date hereof, or (vii) by Buyer for the effect of any multiple or multiplier that may have been used by Buyer in its projections or computation of the Total Purchase Price. (d) Each Indemnitee must mitigate in accordance with applicable Law any Losses for which such Indemnitee seeks indemnification hereunder. If the Indemnitee mitigates its Losses after the Indemnitor has paid the Indemnitee under any indemnification under Section 6 is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any provision of this Agreement in respect of such Losses, then the Company shall contribute Indemnitee must notify the Indemnitor and pay to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate Indemnitor to reflect the relative fault extent of the Company and Indemnified Party value of the benefit to the Indemnitee of that mitigation (less the Indemnitee’s reasonable costs of mitigation) within five Business Days after the benefit is received. Notwithstanding the foregoing, nothing in this Section 9.3(d) shall apply to Buyer in connection with the actions, statements preparation or omissions that resulted in such Losses as well as filing of any other relevant equitable considerations. The relative fault of Tax Returns. (e) Notwithstanding anything herein to the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied bycontrary, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses for which indemnification is provided under this Article IX shall be deemed net of (i) any amounts recovered by the Indemnitee pursuant to include any reasonable attorneys’ indemnification by or indemnification agreement with any third party, and (ii) any insurance proceeds or other fees cash receipts or expenses incurred sources of reimbursement received that reduce the amount of such Losses (and no right of subrogation shall accrue to any insurer or third party indemnitor hereunder) (each such Person named in clauses (i) and (ii), a “Collateral Source”); provided that Buyer shall be under no obligation to bring a lawsuit against any insurer to obtain such recovery. If the amount to be netted hereunder from any payment required under this Article IX is determined after payment by the Indemnitor of any amount otherwise required to be paid to an Indemnitee pursuant to this Article IX, the Indemnitee shall repay to the Indemnitor, promptly after such party determination, any amount that the Indemnitor would not have had to pay pursuant to this Section 9.3(e) had such determination been made at the time of such payment. Any Indemnitor may, in its sole discretion, require any Indemnitee to grant an assignment of the right of such Indemnitee to assert a claim against any Collateral Source. In the event of such assignment, the Indemnitor will pursue such claim at its own expense. (f) Neither Seller nor any Person claiming by or through Seller shall have any right of contribution, right of indemnity or other right or remedy against the Company in connection with any proceeding indemnification obligation or other liability to which it may be subject under or in connection with this Agreement or the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this Section 7, neither Buyer nor any holder of Registrable Securities shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissiontransactions contemplated hereby.

Indemnification Limitations. If (a) Notwithstanding anything to the contrary in this Agreement (except as set forth in Section 8.3(c)), the sole recourse of the Indemnified Parties for indemnification pursuant to this Article VIII shall be to make claims against the Escrow Amount deposited with the Escrow Agent and the indemnification under Section 6 obligation of each Effective Time Company Stockholder shall not exceed its respective Escrow Pro Rata Portion. (b) Except in the case of actual fraud or any willful breach of any representation, warranty or covenant set forth in this Agreement, in the Volume Restriction Agreements or in any Related Agreement to which the Company is unavailable to an a party, from and after the Effective Time, no indemnification claim may be made by any Indemnified Party against the Escrow Amount until the Indemnified Parties have claims that individually or insufficient to hold an in the aggregate equal or exceed $100,000 (the “Threshold Amount”), after which the Indemnified Party harmless for any Losses, then the Company shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Company and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the Company and Indemnified Party Parties shall be determined by reference to, among other things, whether any action in questionentitled to exercise all claims against the Escrow Amount, including any untrue claim that comprises all or alleged untrue statement part of a material fact or omission or alleged omission of a material factthe Threshold Amount. (c) Notwithstanding anything to the contrary in this Agreement, has been taken or made by, or relates with respect to information supplied by, the Company or any Losses suffered by the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party Parties as a result of any Losses breach of the agreements and obligations of any Effective Time Company Stockholder set forth in the Volume Restriction Agreements, the Indemnified Parties shall be deemed entitled to include any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any proceeding exercise all claims against the Escrow Amount; provided, however, that the indemnification obligation shall be limited to the extent Escrow Pro Rata Portion attributable to the Effective Time Company Stockholder responsible for the acts resulting in the Losses for which indemnification is sought. (d) The limitations set forth in this Article VIII shall not apply with respect to intentional misrepresentation or actual fraud by any Person; provided, however, that in the event of such party would have been indemnified for such fees intentional misrepresentation or expenses if actual fraud by any Person, the indemnification provided for in Section 6 was available obligations of the Effective Time Company Stockholders shall continue to such party in accordance with its terms. It is agreed that it would be several and not be just joint and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this Section 7, neither Buyer nor any holder of Registrable Securities shall be required limited to contribute, in the aggregate, any amount in excess one hundred percent (100%) of each such Effective Time Company Stockholder’s Pro Rata Portion of the amount by which the net proceeds actually received by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionInitial Merger Consideration.

Indemnification Limitations. If (i) The Party making any indemnification pursuant to this Agreement will be referred to as the “Indemnifying Party” and the Blade Indemnitees or the Air Carriers Indemnitees, as the case may be, receiving such indemnification will be referred to as the “Indemnified Party”. (ii) The representations and warranties contained in Article 11 and the covenants contained in Article 12 shall survive and continue in full force and effect during the Term. For the avoidance of doubt, it is the intention of the Parties that the foregoing respective survival periods and termination dates supersede any applicable statutes of limitations that would otherwise apply to such representations and warranties and covenants. (iii) The amount of any Losses for which indemnification is provided under Section 6 is unavailable Article 14.1 and Article 14.2 shall be net of (a) any amounts actually recovered by the Indemnified Party (net of any costs of investigation of the underlying claim and of collection) pursuant to any indemnification by or indemnification agreement with any Person (other than this Agreement) and (b) any insurance proceeds (net of any costs of investigation of the underlying claim and of collection) actually received as an offset against such Losses (each such source of recovery, a “Collateral Source”). If, after payment by the Indemnifying Party of an amount under this Article 14, the Indemnified Party actually recovers from any Collateral Source an amount which would have been netted pursuant to this Article 14.3, then the Indemnified Party must promptly repay the Indemnifying Party the difference between the amount paid by the Indemnifying Party and the amount recovered from a Collateral Source. (iv) The Indemnified Party shall take commercially reasonable steps to mitigate any Losses as soon as reasonably practicable after such Indemnified Party becomes aware of any event which does, or could reasonably be expected to, give rise to any such Losses. (v) In the event an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Lossesshall recover Losses in respect of a claim of indemnification under this Article 14, then the Company shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Company and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any no other relevant equitable considerations. The relative fault of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action entitled to recover the same Losses in question, including any untrue or alleged untrue statement respect of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any proceeding separate claim for indemnification related to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this Section 7, neither Buyer nor any holder of Registrable Securities shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionsame subject matter.

Indemnification Limitations. If (a) Except in the indemnification under Section 6 is unavailable to an Indemnified Party case of fraud or insufficient to hold an Indemnified Party harmless for any Losses, then willful misrepresentation on the Company shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault part of the Company (a “Fraud Loss”), the Effective Time Company Stockholders shall not be obligated to indemnify the Indemnified Parties (a) pursuant to Section 8.2 or otherwise under this Agreement for any amounts in excess of the amount of the Escrow Fund at the time any such indemnification or any other obligation is paid to the Indemnified Parties, (b) with respect to indemnification claims pursuant to Section 8.2(a)(1), until the aggregate amount of Losses under all claims of all Indemnified Parties exceed Two Hundred Fifty Thousand Dollars ($250,000.00) (the “Basket Amount”) after which all Losses (including the Basket Amount) shall be recoverable pursuant to the terms, and subject to the limitations, of this Article VIII or (c) for Taxes attributable to periods (or portions of periods) following the Closing (other than interest, penalties and additions to Tax imposed with respect to Taxes attributable to periods prior to the Closing). (b) Notwithstanding anything to the contrary set forth in this Agreement, the aggregate maximum indemnification obligation of the Effective Time Company Stockholders for any Fraud Losses, together with any obligations of the Effective Time Company Stockholders for Losses that are not Fraud Losses, shall not exceed, in the aggregate, the Merger Consideration (and, with respect to each Effective Time Company Stockholder, shall be limited to such Effective Time Company Stockholder’s Pro Rata Portion of the Loss on a several and not joint basis, not to exceed the amount of the Merger Consideration actually received by or held in the Escrow Fund on behalf of, such Stockholder). It is further acknowledged and agreed that, subject to Sections 8.4(a) and (c), (A) except with respect to Fraud Losses, claims made pursuant to this Article VIII shall constitute the sole and exclusive recourse of any Indemnified Party in connection with the actionsany claim or Loss paid, statements suffered, incurred or omissions that resulted in such Losses as well as sustained by any other relevant equitable considerations. The relative fault of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of or arising out of this Agreement or any Losses of the Related Agreements (to the extent arising from a breach thereof by the Company), (B) except with respect to Fraud Losses, the Escrow Fund shall be deemed the sole source of recovery by and exclusive remedy of any Indemnified Party for any claim made pursuant to include this Article VIII or otherwise under or arising out of this Agreement or any reasonable attorneysof the Related Agreements (to the extent arising from a breach thereof by the Company), and (C) in the case of any Fraud Losses, the Indemnified Parties shall first seek recovery out of the Escrow Fund before seeking recovery directly from the Effective Time Company Stockholders. (c) No indemnified Party shall be entitled to indemnification pursuant to this Agreement with respect to a Loss (i) to the extent Parent has agreed in writing to waive the Indemnified Parties’ right to indemnification with respect to such Loss or other fees or expenses incurred by such party in connection with any proceeding (ii) to the extent such party would have been indemnified for such fees Loss is already included or expenses if the indemnification provided for in Section 6 was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take taken into account the equitable considerations referred to in the immediately preceding sentencecalculation of Shortfall Amount, the Final Closing Working Capital or the Closing Adjusted Merger Consideration. Notwithstanding The Effective Time Company Stockholders shall not under any circumstances be liable for any Taxes relating to the provisions of this Section 7, neither Buyer nor Company for any holder of Registrable Securities shall be required to contribute, in Taxable period commencing on or after the aggregate, any amount in excess of the amount by which the net proceeds actually received by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionClosing Date.