Common use of Indemnification Cap Clause in Contracts

Indemnification Cap. Notwithstanding any provision hereof to the contrary, after the Closing, the aggregate amount of Damages for which Buyer Indemnified Parties shall be entitled to indemnification pursuant to this Section IX for breaches of representations and warranties will not exceed the Escrow Amount minus any amounts paid as a Deficit Amount pursuant to Section 2.5(d); provided, however, that 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 serve as the sole and exclusive source of payment of any 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 Buyer Claims pursuant to Sections 9.2(a)(i) prior to the time a claim is properly asserted for a breach of Section 9.10.

Indemnification Cap. Notwithstanding any provision hereof to the contrary, after the Closing, the aggregate amount (a) The indemnification obligations of Damages for which Buyer Indemnified Parties shall each Seller under Article 7 will be entitled to indemnification pursuant to this Section IX for breaches of representations and warranties will not exceed the Escrow Amount minus any amounts paid as a Deficit Amount pursuant to Section 2.5(d); provided, however, that 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 serve as the sole and exclusive source of payment of any 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 attributable to such Seller as set forth on Exhibit A; provided however, that (i) in the first sentence case of this Section 9.4(aintentional misrepresentation by such Seller, or (ii) as long as Escrow Funds are held by Seller Warranty Breaches involving Article 3, the Escrow Agent. For the avoidance indemnification obligations of doubt, claims for indemnification with respect each Seller shall be limited to the covenants or the Special Representations shall not Closing Cash Payment actually received by such Seller as set forth on Exhibit A. (b) The indemnification obligations of each Management Shareholder under Article 7 will be limited to the Escrow Funds but Amount attributable to such Management Shareholder as set forth on Exhibit A; provided however, that (i) in 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 be limited to the Closing Cash Payment plus any Earn-Out Consideration actually received by such 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 Management Shareholders under Article 7 for claims made after eighteen (18) months 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 Buyer Claims pursuant to Sections 9.2(a)(i) prior to the time a claim is properly asserted for involving a breach of Section 9.104.19 will be limited to each such Management Shareholder’s pro rata share (relative to the other Management Shareholders only) of the Escrow Amount. (c) Notwithstanding anything in this Agreement to the contrary, and subject to any limitations contained herein, (i) each Seller shall only be liable for such Seller’s Pro Rata Share of any indemnification obligations for Seller Warranty Breaches

Indemnification Cap. Notwithstanding any provision hereof anything in this Agreement to the contrary, after in no event shall CMI have any liability arising from or in connection with any breach or inaccuracy of any of the Closing, the aggregate amount of Damages for which Buyer Indemnified Parties shall be entitled to indemnification pursuant to this Section IX for breaches of representations and warranties will not exceed in Article 5 which would result in the Escrow Amount minus any amounts paid as issuance to Seller Indemnified Parties 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 Deficit Amount pursuant to Section 2.5(d); providedbreach or inaccuracy of a Fundamental Representation, however, that such limitation which shall not apply with respect be subject 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 SellerIndemnification Cap. Notwithstanding anything herein to the limitations set forth in the preceding sentencescontrary, in no event (other than fraud) shall CMI be subject to any liability arising from or 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 to the contrary, in no event shall the Seller’s aggregate Liability for indemnification pursuant to this Agreement exceed the Purchase Price. After the Closing the Escrow Funds shall serve Sellers as the sole and exclusive source of payment a group have any liability arising from or in connection with any breach or inaccuracy of any claim for indemnification pursuant to Sections 9.2(a) with respect to breaches of the representations and warranties in Article 4 or 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 indemnification is limited shall not be subject 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 AgentIndemnification Cap. For the avoidance of doubt, claims liability for indemnification with respect to the breaches of covenants or the Special Representations agreements shall not be limited subject to the Escrow Funds but after Indemnification Cap. Notwithstanding anything herein to the Closing contrary, in no event shall any Seller be paid first out of the Escrow Funds before subject to 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 liability arising 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 or in connection with Buyer Claims this Agreement or the Transactions which would result in the payment to CMI Indemnified Parties an amount of shares of CMI Common Stock in excess of the number of shares of CMI Common Stock such Seller received pursuant to Sections 9.2(a)(i) prior to the time a claim is properly asserted for a breach of Section 9.10Exchange at the Closing.

Indemnification Cap. Notwithstanding any provision hereof (a) Subject to the contrarylimitations set forth in this Article VIII, after subsequent to the ClosingClosing 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 aggregate amount of Damages for which Buyer Indemnified Parties shall be entitled to indemnification pursuant Disclosure Schedules or any Exhibit to this Section IX for breaches 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 representations Target and warranties will not its stockholders exceed $13,750,000 and in no event shall the individual liability of each of Target's stockholders exceed the Escrow Amount minus any amounts paid as a Deficit Amount pursuant to set forth in Section 2.5(d)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 limitation 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 not apply with respect to be valued at the Acquiror Stock Price. (i) any Damages resulting from or relating to any breach The Escrow Fund shall be security for part of the Special Representations or indemnity obligations hereunder. Subject to the covenants 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) 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 serve thereafter from all holders of Target Common Stock as the sole and exclusive source of payment of any 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 Effective Time on a pro rata and several basis (based on their holdings as of the sole and exclusive source Effective Time) up to an aggregate liability per holder of payment Target Common Stock of any claim for indemnification pursuant to Section 9.10 until 7% of the date which is two (2) years from value of Acquiror Common Stock received by such holders as of 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 Buyer Claims pursuant to Sections 9.2(a)(i) prior to the time a claim is properly asserted for a breach of Section 9.10Effective Time.