Common use of Indemnification Limitations Clause in Contracts

Indemnification Limitations. (a) The amount of any claim for Losses by Purchaser shall not be payable hereunder until such time as the aggregate amount of all Losses of Purchaser under this Agreement exceed Sixty Thousand Dollars ($60,000) (the “Threshold Amount”); and thereafter only for Losses of Purchaser in excess of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum of (x) $700,000 plus (y) the lesser of (A) $300,000 and (B) any amounts actually paid to Sellers after the Closing or due and owing but not actually paid to Sellers after the Closing. (b) If any event shall occur or circumstance shall exist which would otherwise entitle an Indemnitee to indemnification under this Article IX, no Losses shall be deemed to have been incurred or sustained by such Indemnitee to the extent of: (a) any tax benefit actually received by the Indemnitee or any Affiliate thereof (including the Company, following the Closing) resulting from matters underlying such breach; or (b) any insurance proceeds actually received by the Indemnitee in respect of the Losses (net of any deductible amounts). An Indemnitee shall be required to use commercially reasonable efforts to mitigate, to the fullest extent practicable, the amount of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything to the contrary in this Article IX, the Indemnitor shall not be required hereunder to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do so. (c) Upon making any payment for Losses of an Indemnitee under this Article IX, the Indemnitor will, to the extent of such payment, be subrogated to all rights of the Indemnitee against any third party with respect to the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c). (d) The sole and exclusive liability and responsibility of the parties hereunder in connection with the transactions described herein (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IX; provided, however, that nothing in this Section 9.7(d) shall prohibit any party from obtaining specific performance or injunctive relief in respect of any covenant or obligation.

Indemnification Limitations. (a) 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 claim for Losses by Purchaser shall not be payable hereunder until such time as the aggregate amount of all Losses of Purchaser under this Agreement exceed Sixty Thousand Dollars ($60,000) (the “Threshold Amount”); and thereafter only for Losses of Purchaser in excess of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum of (x) $700,000 plus (y) the lesser of (A) $300,000 and (B) any amounts actually paid to Sellers after the Closing or due and owing but not actually paid to Sellers after the Closing. (b) If any event shall occur or circumstance shall exist which would otherwise entitle an Indemnitee to indemnification under this Article IX, no Losses shall be deemed to have been include any reasonable attorneys’ or other fees or expenses incurred or sustained by such Indemnitee party in connection with any proceeding to the extent of: (a) 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 tax benefit actually received 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 Indemnitee or any Affiliate thereof (including the Company, following the Closing) resulting from matters underlying such breach; or (b) any insurance net proceeds actually received by such party from the Indemnitee in respect sale of the Losses (net all of any deductible amounts). An Indemnitee shall be required their Registrable Securities pursuant to use commercially reasonable efforts to mitigate, to the fullest extent practicable, such Registration Statement or related prospectus exceeds the amount of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything damages that such party has otherwise been required to the contrary in this Article IX, the Indemnitor shall not be required hereunder to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do so. (c) Upon making any payment for Losses of an Indemnitee under this Article IX, the Indemnitor will, to the extent pay by reason of such payment, be subrogated to all rights of the Indemnitee against any third party with respect to the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c)untrue or alleged untrue statement or omission or alleged omission. (d) The sole and exclusive liability and responsibility of the parties hereunder in connection with the transactions described herein (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IX; provided, however, that nothing in this Section 9.7(d) shall prohibit any party from obtaining specific performance or injunctive relief in respect of any covenant or obligation.

Indemnification Limitations. (a) The 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 claim for Losses insurance proceeds, contribution payments or reimbursements actually received or receivable by Purchaser shall not be payable hereunder until such time as the aggregate amount of all Losses of Purchaser under this Agreement exceed Sixty Thousand Dollars Indemnified Person in respect thereof and ($60,000iii) (the “Threshold Amount”); and thereafter only for Losses of Purchaser in excess of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal to the sum amount of any Tax benefit (xincluding for the avoidance of doubt any available net operating loss carry forwards) $700,000 plus that is or can be actually realized by the Indemnified Persons in connection with such Damages or any of the circumstances giving rise thereto (yeach Person named and source identified in clauses (i), (ii) the lesser of (A) $300,000 and (B) any amounts actually paid to Sellers after the Closing or due and owing but not actually paid to Sellers after the Closing. (b) If any event shall occur or circumstance shall exist which would otherwise entitle an Indemnitee to indemnification under this Article IXiii), no Losses shall be deemed to have been incurred or sustained by such Indemnitee to the extent of: (a) any tax benefit actually received by the Indemnitee or any Affiliate thereof (including the Company, following the Closing) resulting from matters underlying such breach; or (b) any insurance proceeds actually received by the Indemnitee in respect of the Losses (net of any deductible amountsa “Collateral Source”). An Indemnitee The Indemnified Persons shall be required to use commercially reasonable efforts to mitigate, to the fullest extent practicable, seek recovery from all Collateral Sources. If the amount to be netted hereunder from any payment required under Section 9.2 or Section 9.3 is determined after payment by the Escrow Participants or Acquiror, as applicable, of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything amount otherwise required to the contrary in this Article IX, the Indemnitor shall not be required hereunder paid to provide indemnification with respect to any Losses resulting from failure of any an Indemnified Party to do so. (c) Upon making any payment for Losses of an Indemnitee Person under this Article IX, the Indemnitor will, Indemnified Persons shall repay to the extent of Indemnifying Person, promptly after such paymentdetermination, be subrogated any amount that Indemnifying Person would not have had to all rights of the Indemnitee against any third party with respect to the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pay pursuant to this Section 9.7(c)(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 Merger Sub pursuant to 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 Persons shall be entitled to be indemnified against and compensated and reimbursed for any amounts of Damages in excess of the Basket. (e) Amounts indemnifiable hereunder to Acquiror Indemnified Persons on account of Damages shall be reduced on a dollar-for-dollar basis to the extent any such amount was reflected in the Current Liabilities in the calculation of the Company Net Working Capital on the Final Adjustment Statement (with the intent of this provision to merely be to avoid “double counting”). (f) The parties hereto agree that, except in the case of claims based on Fraud, the provisions of this Article IX are intended to and shall provide the sole and exclusive liability and responsibility of remedy for the parties hereunder in connection with Indemnified Persons following the transactions described herein Closing as to all money damages arising under this Agreement (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IX; provided, however, it being understood that nothing in this Article IX or elsewhere in this Agreement shall affect the Securityholders’ Representative’s indemnification rights in Section 9.7(d10.10(c) shall prohibit any party from obtaining and the parties’ rights to specific performance or injunctive relief in respect of any covenant or obligationother equitable remedies to enforce the parties’ obligations under this Agreement).

Indemnification Limitations. Other than in respect of claims which arise out of or relate to the matters set forth in Section 1.2(b) (aPurchase Price Adjustment), Section 2.11 (Tax Matters), Section 5.3 (Tax Matters) The or Section 8.1(d) (Transfer of TTP Assets) hereof or which are listed on Schedule 8.5 which shall not be subject to any minimum aggregate amount of claim, Buyer may not assert any claim for Losses by Purchaser shall not be payable hereunder under Section 8.1 hereof until such time as the aggregate amount of all Losses of Purchaser such claims under this Agreement exceed Sixty Thousand Dollars ($60,000) 750,000, and then Buyer may only assert claims for the excess of such claims over $750,000 (the “Threshold Amount”"BASKET"); and thereafter only . The aggregate liability of Seller for all claims of Losses of Purchaser in excess under Section 8.1 shall not exceed 15% of the Threshold AmountPurchase Price; provided, that such limit does not apply in the event of an intentional or fraudulent misrepresentation or Losses arising out of or relating to Sections 2.11 (Tax Matters) and 5.3 (Tax Matters). In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum of (x) $700,000 plus (y) the lesser of (A) $300,000 and (B) Notwithstanding any amounts actually paid to Sellers after the Closing or due and owing but not actually paid to Sellers after the Closing. (b) If any event shall occur or circumstance shall exist which would otherwise entitle an Indemnitee to indemnification under this Article IX, no Losses shall be deemed to have been incurred or sustained by such Indemnitee provision herein to the extent of: (a) any tax benefit actually received by the Indemnitee or any Affiliate thereof (including the Companycontrary, following the Closing) resulting from matters underlying such breach; or (b) any insurance proceeds actually received by the Indemnitee in respect of the Losses (net of any deductible amounts). An Indemnitee shall be required to use commercially reasonable efforts to mitigate, to the fullest extent practicable, the amount of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything to the contrary in this Article IX, the Indemnitor Seller shall not be required have any indemnification obligation hereunder to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do so. (c) Upon making any payment for Losses of an Indemnitee under this Article IX, the Indemnitor will, to the extent of such payment, be subrogated to all rights of the Indemnitee against any third party with respect to the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c). (d) The sole and exclusive liability and responsibility of the parties hereunder arising in connection with the transactions described herein matters set forth in Section 2.8(b)(l) of the Disclosure Schedule (including for including, without limitation, any breach of claim that the Company or inaccuracy its Subsidiaries did not act, or Seller did not cause the Company or its Subsidiaries to act, in a commercially reasonable matter to mitigate any representation losses or warranty exposure to losses), or for any breach of a representation or warranty of Seller hereunder to the extent Buyer has actual knowledge of such breach of representation or warranty, or the specific facts or circumstances giving rise to such breach, on the Closing Date. Buyer shall not be entitled to make any covenant claim for a Loss to the extent that a provision or obligation allowance for the Loss has been made in the applicable Financial Statements or to the extent the Loss is otherwise accounted for any other reason)or reflected in the applicable Financial Statements. For purposes of this Agreement, a liability that is contingent shall be as set forth in this Article IXnot constitute a Loss unless and until such contingent liability becomes an actual liability and is due and payable; provided, however, that nothing in this Section 9.7(d) sentence shall prohibit any not preclude a party from obtaining specific performance asserting its right to indemnification under this Article VIII prior to the time such contingent liability becomes an actual liability. All Losses recoverable by an Indemnified Party under Section 8.1 or injunctive relief in respect 8.2 shall be net of any covenant tax benefits and insurance proceeds received by the Indemnified Party or obligationthe insurance proceeds which would have been recoverable had the insurance coverage set forth in the Disclosure Schedule been continued. For purposes of determining the amount of any tax benefit pursuant to the preceding sentence, the marginal combined federal and state income tax rate of Buyer shall be deemed to be 40%. All indemnification payments made under this Article VIII shall be deemed an adjustment to the Purchase Price unless otherwise required by law.

Indemnification Limitations. (a) The amount of 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 claim for Losses by Purchaser shall not be payable hereunder claimed under Sections 8.2(a) or 8.3(a), as applicable, unless and until such time as the aggregate amount of all Losses of incurred by the Purchaser under this Agreement exceed Sixty Thousand Dollars (Indemnified Parties or Seller Indemnified Parties, as applicable, exceeds $60,000) 200,000.00 (the “Threshold Basket Amount”); and thereafter only , in which event the Purchaser Indemnified Parties or Seller Indemnified Parties, as applicable, may claim indemnification for all Losses, including all such Losses of Purchaser in excess of less than or equal to the Threshold Basket Amount. In no event shall , (ii) the aggregate amount of liability of Sellers for Losses claimed under Section 8.2(a) by the Purchaser Indemnified Parties, or under Section 8.3(a) by the Seller Indemnified Parties, shall in each case not exceed an amount equal the sum of $1,100,000.00 and (x) $700,000 plus (yiii) the lesser aggregate amount of (ALosses claimed under Section 8.2(b) $300,000 and (Bby the Purchaser Indemnified Parties, or under Section 8.3(b) by the Seller Indemnified Parties, shall in each case not exceed the Final Purchase Price. Notwithstanding the foregoing, the limitations set forth in this Section 8.4 shall not apply to any amounts actually paid Losses arising out of or related to Sellers after the Closing fraud, willful misconduct or due and owing but not actually paid to Sellers after the Closingcriminal acts committed by or on behalf of an Indemnifying Party. (b) If All Losses for which any event shall occur or circumstance shall exist which Indemnified Party would otherwise entitle an Indemnitee be entitled to indemnification under this Article IX, no Losses VIII shall be deemed to have been incurred or sustained by such Indemnitee to the extent of: (a) any tax benefit actually received reduced by the Indemnitee or any Affiliate thereof (including the Company, following the Closing) resulting from matters underlying such breach; or (b) any amount of insurance proceeds actually received by the Indemnitee such Indemnified Party in respect of the any Losses incurred by such Indemnified Party (net of any deductible amountsfees, costs and expenses of collection or increased premiums, if applicable). An Indemnitee 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 be required to use commercially reasonable efforts to mitigate, to the fullest extent practicable, the amount of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything to the contrary in this Article IX, the Indemnitor shall not be required hereunder to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do so. (c) Upon making any payment for Losses of an Indemnitee under this Article IX, the Indemnitor will, to the extent of obtain or receive such payment, be subrogated to all rights of the Indemnitee against any third party with respect to the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c). (d) The sole and exclusive liability and responsibility of the parties hereunder in connection with the transactions described herein (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IXproceeds; provided, however, that nothing in this Section 9.7(d) such Indemnified Party shall prohibit have no obligation to litigate against the applicable third party, including any party from obtaining specific performance or injunctive relief 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 covenant fees, costs and expenses or obligationincreased premiums incurred by such Indemnified Party in collecting such amount, plus the payment received from the 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 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 Losses are finally awarded in connection with a Third Party Claim against the Indemnified Party. (d) Each Indemnified Party shall use its commercially reasonable efforts to mitigate any Losses for which it is entitled to indemnification pursuant to this Article VIII to the extent required by Applicable Law.

Indemnification Limitations. (a) The amount 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 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 a party, from and after the Effective Time, no indemnification claim for Losses may be made by Purchaser shall not be payable hereunder any Indemnified Party against the Escrow Amount until such time as the Indemnified Parties have claims that individually or in the aggregate amount of all Losses of Purchaser under this Agreement equal or exceed Sixty Thousand Dollars ($60,000) 100,000 (the “Threshold Amount”); and thereafter only for Losses of Purchaser in excess , after which the Indemnified Parties shall be entitled to exercise all claims against the Escrow Amount, including any claim that comprises all or part of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum of (x) $700,000 plus (y) the lesser of (A) $300,000 and (B) any amounts actually paid to Sellers after the Closing or due and owing but not actually paid to Sellers after the Closing. (bc) If any event shall occur or circumstance shall exist which would otherwise entitle an Indemnitee to indemnification under this Article IX, no Losses shall be deemed to have been incurred or sustained by such Indemnitee to the extent of: (a) any tax benefit actually received by the Indemnitee or any Affiliate thereof (including the Company, following the Closing) resulting from matters underlying such breach; or (b) any insurance proceeds actually received by the Indemnitee in respect of the Losses (net of any deductible amounts). An Indemnitee shall be required to use commercially reasonable efforts to mitigate, to the fullest extent practicable, the amount of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding Notwithstanding anything to the contrary in this Article IXAgreement, the Indemnitor shall not be required hereunder to provide indemnification with respect to any Losses resulting from failure suffered by the Indemnified Parties as a result of any Indemnified Party to do so. (c) Upon making breach of the agreements and obligations of any payment for Losses of an Indemnitee under this Article IXEffective Time Company Stockholder set forth in the Volume Restriction Agreements, the Indemnitor willIndemnified Parties shall be entitled to exercise all claims against the Escrow Amount; provided, however, that the indemnification obligation shall be limited to the extent of such payment, be subrogated Escrow Pro Rata Portion attributable to all rights of the Indemnitee against any third party with respect to Effective Time Company Stockholder responsible for the acts resulting in the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c)indemnification is sought. (d) The sole and exclusive liability and responsibility of the parties hereunder in connection with the transactions described herein (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as limitations set forth in this Article IXVIII shall not apply with respect to intentional misrepresentation or actual fraud by any Person; provided, however, that nothing in this Section 9.7(dthe event of such intentional misrepresentation or actual fraud by any Person, the indemnification obligations of the Effective Time Company Stockholders shall continue to be several and not joint and shall be limited to one hundred percent (100%) shall prohibit any party from obtaining specific performance or injunctive relief in respect of any covenant or obligationeach such Effective Time Company Stockholder’s Pro Rata Portion of the Initial Merger Consideration.

Indemnification Limitations. (ai) 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 claim Losses for Losses by Purchaser which indemnification is provided under Article 14.1 and Article 14.2 shall not be payable hereunder until such time as the aggregate amount of all Losses of Purchaser under this Agreement exceed Sixty Thousand Dollars ($60,000) (the “Threshold Amount”); and thereafter only for Losses of Purchaser in excess of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum net of (x) $700,000 plus (y) the lesser of (A) $300,000 and (Ba) any amounts actually paid to Sellers after the Closing or due and owing but not actually paid to Sellers after the Closing. (b) If any event shall occur or circumstance shall exist which would otherwise entitle an Indemnitee to indemnification under this Article IX, no Losses shall be deemed to have been incurred or sustained by such Indemnitee to the extent of: (a) any tax benefit actually received recovered by the Indemnitee 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 Affiliate thereof Person (including the Company, following the Closingother than this Agreement) resulting from matters underlying such breach; or and (b) any insurance proceeds actually received by the Indemnitee in respect of the Losses (net of any deductible amountscosts 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”). An Indemnitee 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 shall recover Losses in respect of a claim of indemnification under this Article 14, no other Indemnified Party shall be required entitled to use commercially reasonable efforts to mitigate, to recover the fullest extent practicable, the amount same Losses in respect of any Losses for which a separate claim for indemnification is made under this Article IX and, notwithstanding anything related to the contrary in this Article IX, the Indemnitor shall not be required hereunder to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do sosame subject matter. (c) Upon making any payment for Losses of an Indemnitee under this Article IX, the Indemnitor will, to the extent of such payment, be subrogated to all rights of the Indemnitee against any third party with respect to the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c). (d) The sole and exclusive liability and responsibility of the parties hereunder in connection with the transactions described herein (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IX; provided, however, that nothing in this Section 9.7(d) shall prohibit any party from obtaining specific performance or injunctive relief in respect of any covenant or obligation.

Indemnification Limitations. (a) The amount Notwithstanding any provision to the contrary contained in this Agreement, Seller shall be under no liability to indemnify Purchaser under Section 10.2.1 and no claim under Section 10.2.1 of any claim for Losses this Agreement shall: (i) be made unless notice thereof shall have been given by Purchaser shall not be payable hereunder until such time as the aggregate amount of all Losses or on behalf of Purchaser under this Agreement exceed Sixty Thousand Dollars ($60,000) (to Seller in the “Threshold Amount”); and thereafter only for Losses of Purchaser manner provided in excess of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum of (x) $700,000 plus (y) the lesser of (A) $300,000 and (B) any amounts actually paid Section 10.4, unless failure to Sellers after the Closing provide such notice in a timely manner does not materially impair Seller’s ability to defend its rights, mitigate damages, seek indemnification from a third party or due and owing but not actually paid to Sellers after the Closing.otherwise protect its interests; (bii) If any event shall occur or circumstance shall exist which would otherwise entitle an Indemnitee to indemnification under this Article IX, no Losses shall be deemed to have been incurred or sustained by such Indemnitee made to the extent of: (a) that any tax benefit actually received by loss may be recovered under a policy of insurance in force on the Indemnitee or any Affiliate thereof (including the Company, following the Closing) resulting from matters underlying such breach; or (b) any insurance proceeds actually received by the Indemnitee in respect date of the Losses (net of any deductible amounts). An Indemnitee shall be required to use commercially reasonable efforts to mitigate, to the fullest extent practicable, the amount of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything to the contrary in this Article IX, the Indemnitor shall not be required hereunder to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do so. (c) Upon making any payment for Losses of an Indemnitee under this Article IX, the Indemnitor will, to the extent of such payment, be subrogated to all rights of the Indemnitee against any third party with respect to the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c). (d) The sole and exclusive liability and responsibility of the parties hereunder in connection with the transactions described herein (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IXloss; provided, however, that nothing this Section 10.2.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier; (iii) be made to the extent that such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with: (A) the use, ownership or operation of any of the Hospitals, or (B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH Businesses, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices prior to the Effective Time); other than as specifically included in the Excluded Liabilities; (iv) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital; (v) be made to the extent such claim relates to an obligation or liability for which Purchaser has agreed to indemnify Seller pursuant to Section 10.3; (vi) be made to the extent that such claim would not have arisen but for a voluntary act, omission or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date; (vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 9.7(d10.2.2(a)(vii) shall prohibit not apply to the extent of any payments which Purchaser is required to make to a third party from obtaining specific performance or injunctive relief which are in the nature of Consequential Damages; and (viii) accrue to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect of any covenant single claim under Section 10.2.1 (a) exceeds Five Thousand Dollars ($5,000) (a “Relevant Claim”) and (B) the total actual liability of Seller in respect of all Relevant Claims in the aggregate exceeds One Million Dollars ($1,000,000) (the “Aggregate Amount”), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims in the full amount of Damages provided, however, that the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a). (b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price. (c) If Purchaser is entitled to recover any sum (whether by payment, discount, credit or obligationotherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Seller pays to Purchaser an amount in respect of a claim, and Purchaser subsequently recovers from a third party a sum which is referable to that claim, Purchaser shall forthwith repay such amount to Seller less all reasonable costs, charges and expenses incurred by Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third party.

Indemnification Limitations. Notwithstanding any other provisions of this Agreement, with regard to claims by any Indemnified Party, 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 UK Subsidiary or any of their employees, agents or officers in connection with the entering into of this Agreement or the consummation of a Closing hereunder, (iii) fraud by the Buyer or 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 claims shall be subject to the following limitations and conditions: (a) The amount 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 any twelve months from the applicable Closing Date. (b) No claim for Losses by Purchaser shall not indemnification may be payable hereunder made until such time as the aggregate amount of all Losses of Purchaser under this Agreement exceed Sixty Thousand Dollars Damages incurred by such Indemnified Party exceeds an amount equal to twenty thousand dollars ($60,00020,000) (the “Threshold AmountIndemnification Threshold”); and , thereafter only for Losses of Purchaser such Indemnified Party shall be entitled to indemnification hereunder in excess of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum of (x) $700,000 plus (y) the lesser of (A) $300,000 and (B) any amounts actually paid to Sellers after the Closing or due and owing but not actually paid to Sellers after the Closing. (b) If any event shall occur or circumstance shall exist which would otherwise entitle an Indemnitee to indemnification under this Article IX, no Losses shall be deemed to have been incurred or sustained by such Indemnitee to the extent of: (a) any tax benefit actually received by the Indemnitee or any Affiliate thereof (including the Company, following the Closing) resulting from matters underlying such breach; or (b) any insurance proceeds actually received by the Indemnitee in respect of the Losses (net of any deductible amounts). An Indemnitee shall be required to use commercially reasonable efforts to mitigate, to the fullest extent practicable, the amount of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything to the contrary in this Article IX, the Indemnitor shall not be required hereunder to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do soIndemnification Threshold. (c) Upon making any payment for Losses of an Indemnitee The maximum aggregate amount that the Timeline Indemnified Parties may be entitled to receive under this Article IX, the Indemnitor will, to the extent of such payment, indemnification provisions hereof shall be subrogated amount equal to all rights of amounts actually paid hereunder as First Acquisition Cash Consideration or Second Acquisition Cash Consideration and under the Indemnitee against any third party with respect to Buyer Notes or the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c)Global Guaranty. (d) The sole 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 liability and responsibility of the parties hereunder in connection remedy with the transactions described herein (including for any respect to breach of representations, warranties, covenants and agreements contained in this Agreement, or inaccuracy based directly or indirectly on any rights or obligations established in this Agreement, whether any representation claims or warranty causes of action asserted with respect to such matters are brought in contract, tort or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IXlegal theory whatsoever; provided, howeverthat, that nothing the foregoing notwithstanding, in this the event of a breach of a covenant contained in Section 9.7(d) 5, the Parties shall prohibit any party from obtaining be entitled to 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 injunctive relief in causes of action arising out of or with respect of any covenant to, the Source Code License, or obligationthe Patent License.

Indemnification Limitations. (a) The amount Except in the case of fraud or any claim for Losses by Purchaser willful misrepresentation on the part of the Company (a “Fraud Loss”), the Effective Time Company Stockholders shall not be payable hereunder 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 such time as the aggregate amount of Losses under all Losses claims of Purchaser under this Agreement all Indemnified Parties exceed Sixty Two Hundred Fifty Thousand Dollars ($60,000250,000.00) (the “Threshold Basket Amount”); ) after which all Losses (including the Basket Amount) shall be recoverable pursuant to the terms, and thereafter only subject to the limitations, of this Article VIII or (c) for Losses Taxes attributable to periods (or portions of Purchaser in excess of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum of (xperiods) $700,000 plus (y) the lesser of (A) $300,000 and (B) any amounts actually paid to Sellers after following the Closing or due (other than interest, penalties and owing but not actually paid additions to Sellers after Tax imposed with respect to Taxes attributable to periods prior to the Closing). (b) If Notwithstanding anything to the contrary set forth in this Agreement, the aggregate maximum indemnification obligation of the Effective Time Company Stockholders for any event Fraud Losses, together with any obligations of the Effective Time Company Stockholders for Losses that are not Fraud Losses, shall occur 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 circumstance shall exist which would otherwise entitle an Indemnitee held in the Escrow Fund on behalf of, such Stockholder). It is further acknowledged and agreed that, subject to indemnification under Sections 8.4(a) and (c), (A) except with respect to Fraud Losses, claims made pursuant to this Article IXVIII shall constitute the sole and exclusive recourse of any Indemnified Party in connection with any claim or Loss paid, no Losses shall be deemed to have been suffered, incurred or sustained by such Indemnitee any Indemnified Party as a result of or arising out of this Agreement or any of the Related Agreements (to the extent of: (a) any tax benefit actually received arising from a breach thereof by the Indemnitee or any Affiliate thereof Company), (including the Company, following the ClosingB) resulting from matters underlying such breach; or (b) any insurance proceeds actually received by the Indemnitee in respect of the Losses (net of any deductible amounts). An Indemnitee shall be required to use commercially reasonable efforts to mitigate, to the fullest extent practicable, the amount of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything to the contrary in this Article IX, the Indemnitor shall not be required hereunder to provide indemnification except with respect to any Losses resulting from failure Fraud Losses, the Escrow Fund shall be the sole source of recovery by and exclusive remedy of any Indemnified Party for any claim made pursuant to do sothis Article VIII or otherwise under or arising out of this Agreement or any of 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) Upon making any payment for Losses of an Indemnitee under No indemnified Party shall be entitled to indemnification pursuant to this Article IX, the Indemnitor will, Agreement with respect to a Loss (i) to the extent of such payment, be subrogated Parent has agreed in writing to all rights of waive the Indemnitee against any third party Indemnified Parties’ right to indemnification with respect to such Loss or (ii) to the Losses for which extent such Loss is already included or taken into account in the payment relates. In addition to any other obligation under this Agreementcalculation of Shortfall Amount, the Indemnitee agrees to duly execute and deliver, upon request of Final Closing Working Capital or the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c). (d) Closing Adjusted Merger Consideration. The sole and exclusive liability and responsibility of the parties hereunder in connection with the transactions described herein (including Effective Time Company Stockholders shall not under any circumstances be liable for any breach of or inaccuracy in any representation or warranty or Taxes relating to the Company for any breach of any covenant Taxable period commencing on or obligation or for any other reason), shall be as set forth in this Article IX; provided, however, that nothing in this Section 9.7(d) shall prohibit any party from obtaining specific performance or injunctive relief in respect of any covenant or obligationafter the Closing Date.

Indemnification Limitations. (a) 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 claim for Losses by Purchaser shall not be payable hereunder until such time as the aggregate amount of all Losses of Purchaser under this Agreement exceed Sixty Thousand Dollars ($60,000) (the “Threshold Amount”); and thereafter only for Losses of Purchaser in excess of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum of (x) $700,000 plus (y) the lesser of (A) $300,000 and (B) any amounts actually paid to Sellers after the Closing or due and owing but not actually paid to Sellers after the Closing. (b) If any event shall occur or circumstance shall exist which would otherwise entitle an Indemnitee to indemnification under this Article IX, no Losses shall be deemed to have been include any reasonable attorneys’ or other fees or expenses incurred or sustained by such Indemnitee party in connection with any proceeding to the extent of: (a) 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 tax benefit actually received 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 Indemnitee or any Affiliate thereof (including the Company, following the Closing) resulting from matters underlying such breach; or (b) any insurance net proceeds actually received by such party from the Indemnitee in respect sale of the Losses (net all of any deductible amounts). An Indemnitee shall be required their Registrable Securities pursuant to use commercially reasonable efforts to mitigate, to the fullest extent practicable, such Registration Statement or related prospectus exceeds the amount of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything damages that such party has otherwise been required to the contrary in this Article IX, the Indemnitor shall not be required hereunder to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do so. (c) Upon making any payment for Losses of an Indemnitee under this Article IX, the Indemnitor will, to the extent pay by reason of such payment, be subrogated to all rights of the Indemnitee against any third party with respect to the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c)untrue or alleged untrue statement or omission or alleged omission. (d) The sole and exclusive liability and responsibility of the parties hereunder in connection with the transactions described herein (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IX; provided, however, that nothing in this Section 9.7(d) shall prohibit any party from obtaining specific performance or injunctive relief in respect of any covenant or obligation.

Indemnification Limitations. (a) The amount of any claim for Losses by Purchaser Seller shall not be payable hereunder liable for any Losses (i) unless the Claim for such Losses is brought prior to the Claim Release Date, and (ii) unless and until such time as the aggregate amount of Losses incurred by Buyer with respect to all Losses of Purchaser under this Agreement exceed Sixty Thousand Dollars (such Claims exceeds $60,000) 100,000 (the “Threshold AmountDeductible”); and thereafter , in which case Seller shall be liable only for the amount of such indemnifiable Losses of Purchaser in excess of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum of (x) $700,000 plus (y) the lesser of (A) $300,000 and (B) any amounts actually paid to Sellers after the Closing or due and owing but not actually paid to Sellers after the ClosingDeductible amount. (b) If any event Buyer shall occur or circumstance shall exist which would otherwise entitle an Indemnitee not be entitled to indemnification under this pursuant to Section 9.2(a)(i) for breaches of representations in Article IXV, no and Seller shall not be liable for Losses in respect thereof, in excess of $500,000 (the “Cap”). Buyer shall not be deemed entitled to have been incurred or sustained by such Indemnitee 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 extent of: Purchase Price plus the amount of the Contingent Payment actually paid to Seller or that is due and payable to Seller (a) any tax benefit it being understood that if no Contingent Payment has actually received by been paid to Seller, Buyer’s ability to recover amounts in excess of the Indemnitee or any Affiliate thereof (including the Company, following the Closing) resulting from matters underlying such breach; or (b) any insurance proceeds actually received by the Indemnitee Purchase Price will be limited only to setoff of amounts due and payable in respect of the Losses (net Contingent Payment). Notwithstanding the foregoing, the Cap shall not apply to any indemnification obligations for any breach of any deductible amounts). An Indemnitee of the Fundamental Representations; provided, however, in no event shall Seller be required obligated to use commercially reasonable efforts to mitigate, indemnify Buyer under this Article IX in excess of an amount equal to the fullest 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 practicablesuch 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 provision of this Agreement in respect of such Losses, the Indemnitee must notify the Indemnitor and pay to the Indemnitor to the extent of the 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 preparation or filing of any Tax Returns. (e) Notwithstanding anything herein to the contrary, the amount of any Losses for which a claim for indemnification is made provided under this Article IX andshall be net of (i) any amounts recovered by the Indemnitee pursuant to any indemnification by or indemnification agreement with any third party, notwithstanding anything and (ii) any insurance proceeds or other cash receipts or 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 contrary in 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 Indemnitor Indemnitee shall not be required hereunder repay to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do so. (c) Upon making any payment for Losses of an Indemnitee under this Article IX, the Indemnitor will, to the extent of such payment, be subrogated to all rights of the Indemnitee against any third party with respect to the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary promptly after such determination, any amount that the Indemnitor would not have had to evidence and perfect the subrogation and subordination rights granted pay pursuant to this Section 9.7(c)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. (df) The sole and exclusive liability and responsibility 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 parties hereunder Company in connection with any indemnification obligation or other liability to which it may be subject under or in connection with this Agreement or the transactions described herein (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IX; provided, however, that nothing in this Section 9.7(d) shall prohibit any party from obtaining specific performance or injunctive relief in respect of any covenant or obligationcontemplated hereby.

Indemnification Limitations. (ai) The If the amount with respect to which any claim is made under this Section 4.3 (an “Indemnity Claim”) gives rise to 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 of the 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 claim for Losses by Purchaser Indemnity Claim is made gives rise to a subsequently realized Tax Benefit to the party that made the claim, such party shall not be payable hereunder until such time as refund to the aggregate indemnifying party the amount of all Losses such Tax Benefit when, as and if realized. For the purposes of Purchaser under this Agreement exceed Sixty Thousand Dollars ($60,000) (Agreement, any subsequently realized Tax Benefit shall be treated as though it were a reduction in the “Threshold Amount”); and thereafter only for Losses of Purchaser in excess amount of the Threshold Amountinitial Indemnity Claim, and the liabilities of the parties shall be redetermined as though both occurred at or prior to the time of the indemnity payment. In no event shall For purposes of this paragraph, a “Tax Benefit” means an amount by which the aggregate amount of Tax liability of Sellers for Losses exceed an amount equal the sum party (or group of corporations including the party) is reduced (xincluding, without limitation, by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) $700,000 plus (y) any related interest received from the lesser of (A) $300,000 and (B) relevant taxing authority. Where a party has other losses, deductions, credits or items available to it, the Tax Benefit from any amounts actually paid losses, deductions, credits or items relating to Sellers after the Closing or due and owing but not actually paid to Sellers after the Closing. (b) If any event shall occur or circumstance shall exist which would otherwise entitle an Indemnitee to indemnification under this Article IX, no Losses Indemnity Claims shall be deemed to have been incurred be realized only after the utilization of such other losses, deductions, credits or sustained by such Indemnitee items. For the purposes of this paragraph, a Tax Benefit is “currently realizable” to the extent of: (a) it can be reasonably anticipated that such Tax Benefit will be realized in the current taxable period or year or in any tax benefit actually received by the Indemnitee or any Affiliate thereof return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the Company, following the Closing) resulting from matters underlying such breach; or (b) any insurance proceeds actually received by the Indemnitee in respect date of the Losses (net of any deductible amounts). An Indemnitee shall be required to use commercially reasonable efforts to mitigate, to the fullest extent practicable, the amount of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything to the contrary in this Article IX, the Indemnitor shall not be required hereunder to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do soIndemnity Claim. (c) Upon making any payment for Losses of an Indemnitee under this Article IX, the Indemnitor will, to the extent of such payment, be subrogated to all rights of the Indemnitee against any third party with respect to the Losses for which the payment relates. In addition to any other obligation under this Agreement, the Indemnitee agrees to duly execute and deliver, upon request of the Indemnitor, all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c). (d) The sole and exclusive liability and responsibility of the parties hereunder in connection with the transactions described herein (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IX; provided, however, that nothing in this Section 9.7(d) shall prohibit any party from obtaining specific performance or injunctive relief in respect of any covenant or obligation.

Indemnification Limitations. The indemnification obligations of Tyson under Paragraph 1 shall not apply to Losses: (a) The for which payment is actually made to the Indemnitee under a valid and collectible insurance policy or bond, except in respect of any excess beyond the amount of any claim for Losses by Purchaser shall not be payable hereunder until payment under such time as the aggregate amount of all Losses of Purchaser under this Agreement exceed Sixty Thousand Dollars ($60,000) (the “Threshold Amount”); and thereafter only for Losses of Purchaser in excess of the Threshold Amount. In no event shall the aggregate amount of liability of Sellers for Losses exceed an amount equal the sum of (x) $700,000 plus (y) the lesser of (A) $300,000 and (B) any amounts actually paid to Sellers after the Closing insurance policy or due and owing but not actually paid to Sellers after the Closing.bond; (b) If for which the Indemnitee is entitled to indemnity and/or payment by reason of having given timely notice of any event shall occur circumstance which might give rise to a claim under any insurance policy or circumstance shall exist bond, although the terms of which would otherwise entitle an Indemnitee to indemnification under this Article IX, no Losses shall be deemed to have been incurred or sustained by such Indemnitee expired prior to the extent of: date of this Agreement; (ac) for which the Indemnitee is indemnified by Tyson otherwise than pursuant to this Agreement; (d) based upon or attributable to the Indemnitee gaining in fact any tax benefit actually 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 16 (b) of the Securities Exchange Act of 1934 and amendments thereto (the “Exchange Act”) or similar provisions of any state statutory or common law; (f) for the Indemnitee’s reimbursement to Tyson of any bonus or other incentive-based or equity-based compensation previously received by the Indemnitee or any Affiliate thereof from the sale of securities of Tyson, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the Company, following ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 in connection with an accounting restatement of Tyson or the Closing) resulting payment to Tyson of profits arising from matters underlying such breach; the purchase or (b) any insurance proceeds actually received sale by the Indemnitee of securities in respect violation of Section 306 of the Losses ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act) or under any similar compensation clawback policy of Tyson; (net g) brought about or contributed to by the dishonesty of any deductible amounts). An Indemnitee; however, notwithstanding the foregoing, Indemnitee shall be required protected under this Agreement as to use commercially reasonable efforts 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 mitigate, 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 fullest extent practicable, the amount cause of any Losses for which a claim for indemnification is made under this Article IX and, notwithstanding anything to the contrary in this Article IX, the Indemnitor shall not be required hereunder to provide indemnification with respect to any Losses resulting from failure of any Indemnified Party to do so.action so adjudicated; (ch) Upon making any if a final decision by a court having jurisdiction in the matter shall determine that such payment for Losses of an Indemnitee under this Article IX, the Indemnitor will, to the extent of such payment, be subrogated to all rights of the Indemnitee against any third party with respect to the Losses is not lawful; or (i) for which the payment relates. In addition Indemnitee is finally judicially determined on the merits to any other obligation under this Agreement, have caused through the Indemnitee agrees to duly execute and deliver, upon request bad faith or dishonesty of the Indemnitor, all instruments reasonably necessary Indemnitee; provided such bad faith or dishonesty was material to evidence and perfect the subrogation and subordination rights granted pursuant to this Section 9.7(c)cause of action so adjudicated. (d) The sole and exclusive liability and responsibility of the parties hereunder in connection with the transactions described herein (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), shall be as set forth in this Article IX; provided, however, that nothing in this Section 9.7(d) shall prohibit any party from obtaining specific performance or injunctive relief in respect of any covenant or obligation.