Common use of Damage Threshold Clause in Contracts

Damage Threshold. (a) Notwithstanding the foregoing, the Former RTI Stockholders shall have no liability under Section 10.1 and Mpath may not receive any shares from the Escrow Fund unless and until an Officer's Certificate or Certificates (as defined in Section 10.5 below) for an aggregate amount of Mpath's Regular Damages and Special IP Damages in excess of $100,000 has been delivered to the Stockholders' Agents and to the Escrow Agent; provided, however, that after an -------- ------- Officer's Certificate or Certificates for an aggregate of $100,000 in Regular Damages and Special IP Damages has been delivered Mpath shall be entitled, subject to the provisions of this Article X (including, without limitation, the provisions of Section 10.2), to receive Escrow Shares equal in value to the full amount of Regular Damages and/or Special IP Damages identified in such Officer's Certificate or Certificates. (b) Notwithstanding anything to the contrary in this Agreement, the amount of any Regular Damages and/or Special IP Damages as applicable otherwise due and/or payable to Mpath in connection with any claim for indemnification under this Agreement shall be reduced (i) to the extent that Mpath actually realizes, by reason of such Regular Damages and/or Special IP Damages (as applicable), any tax benefit, and (ii) by any insurance proceeds actually received by Mpath in respect thereof. Mpath shall use reasonable efforts to make a claim for Regular Damages or Special IP Damages, as applicable, from any available insurers prior to attempting to collect from the Escrow Fund. If Mpath recovers any amount from any insurer after payment to Mpath out of the Escrow Fund, of any Regular Damages and/or Special IP Damages suffered or incurred by Mpath in respect of the matters to which such insurance payment relates, then Mpath will promptly pay over to the Escrow Agent the amount so recovered, to the extent not in excess of the amount previously paid to Mpath in respect of such matter.