Common use of Other Indemnification Matters Clause in Contracts

Other Indemnification Matters. (a) With respect to Seller's liability for claims made under clause (b)(i) of Section 9.02, Seller shall have no liability for such claims until the aggregate amount of the Losses incurred by Buyer's Indemnified Group shall exceed $2,500,000, in which case Seller shall be liable only for the portion of the Losses exceeding $2,500,000 (the "Deductible"), and in no event shall Seller's liability for such claims exceed $75,000,000 in the aggregate (the "Cap"); provided, however, that claims for breaches of any representations or warranties contained in Section 2.01 shall not be subject to the Deductible or the Cap, but will be limited in the aggregate to an amount equal to the Purchase Price. (b) Solely for purposes of the indemnification provisions contained in this Article IX, the word "material" (or correlative meanings thereof) contained in any individual representation or warranty contained in this Agreement, or any covenant or agreement contained in Section 4.02 of this Agreement, shall be deemed to mean individually or in the aggregate in excess of $500,000, and the words "material adverse effect" contained in any individual representation or warranty contained in this Agreement, or any covenant or agreement contained in Section 4.02 of this Agreement, shall be deemed to mean individually or in the aggregate an effect that exceeds $500,000. With respect to any breach or breaches of any such individual representation or warranty contained in this Agreement, or any such covenant or agreement contained in Section 4.02 of this Agreement, which would not have been breached but for the provisions contained in the immediately preceding sentence, such representation, warranty, covenant or agreement shall be deemed not to have been breached to the extent such breach is evident in, results from or is directly attributable to information that was not disclosed in the Schedules hereto but was disclosed in writing prior to the date hereof in the data room set up by Seller at the offices of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. in Dallas, Texas for purposes of Buyer's due dil▇▇▇▇▇▇ investigation of the Company. The provisions contained in the immediately preceding sentence relate only to information actually contained in such data room, with no duty of due diligence or due inquiry on the part of Buyer with respect to such information. An index of all of the documents contained in such data room is attached as Exhibit B hereto. The provisions of this Section 9.04(b) shall have no effect with respect to the covenants and agreements contained in Section 4.02 of this Agreement following the 18-month anniversary of the Closing Date. (c) The liability for claims made under clause (b)(v) of Section 9.02 shall in no event exceed $2,000,000.

Other Indemnification Matters. (a) With respect to Seller's liability Except for claims made of fraud or intentional misrepresentation: (i) The Parties agree that their respective remedies under clause Sections 5.3, 5.4, 5.5 and 5.6 of this Agreement are their exclusive remedies under this Agreement (b)(i) other than Section 8 of Section 9.02, Seller shall have no liability for such claims until the aggregate amount of the Losses incurred by Buyer's Indemnified Group shall exceed $2,500,000, in which case Seller shall be liable only for the portion of the Losses exceeding $2,500,000 (the "Deductible"this Agreement), and in no event shall Seller's liability for such claims exceed $75,000,000 in including without limitation, any matter based on the aggregate (the "Cap"); providedinaccuracy, howeveruntruth, that claims for breaches incompleteness or breach of any representations or warranties contained in Section 2.01 shall not be subject to the Deductible or the Cap, but will be limited in the aggregate to an amount equal to the Purchase Price. (b) Solely for purposes of the indemnification provisions contained in this Article IX, the word "material" (or correlative meanings thereof) contained in any individual representation or warranty of any Party contained herein or based on the failure of any covenant, agreement or undertaking herein, and the Parties hereby waive any claims with respect to any other right of contribution or indemnity available against any Indemnifying Party in such capacity on the basis of common law, statute or otherwise beyond the express terms of this Agreement, or ; and (ii) Notwithstanding any covenant or agreement contained in Section 4.02 other provision of this Agreement, the liability for indemnification of any Indemnifying Party under this Agreement (other than liability under Section 5.3(b) and 5.4(b)) shall not exceed the actual damages of the party entitled to indemnification and shall not otherwise include incidental, consequential, indirect, special, punitive, exemplary or other similar damages, other than compensatory damages. (i) Any indemnification claim made by an Indemnified Party under this Section 5 shall be deemed made in writing to mean individually the Indemnifying Party. Any controversy, claim or dispute arising out of, relating to, or in connection with, any such indemnification claim (a "DISPUTE"), including any question regarding the aggregate in excess existence, validity, scope or termination of $500,000this Section 5.6(b), and not resolved pursuant to the words "material adverse effect" contained provisions of Section 5.6(b)(ii) shall be settled by binding arbitration in New York City in accordance with the rules and practices, then obtaining, of the American Arbitration Association under its International Arbitration Rules, and any judgment upon any such arbitration or an award rendered may be entered as a final judgment in any individual representation court of competent jurisdiction. (ii) Within thirty (30) days of its receipt of the indemnification claim or warranty contained notification of a Third Party Claim, the Indemnifying Party shall notify the Indemnified Party in this Agreementwriting of any Dispute (or other disagreement arising out of, relating to, or in connection with such Third Party Claim not subject to an indemnification claim), such notice to contain sufficient detail to provide the Indemnified Party with notice as to the nature of the Dispute or other disagreement (the "DISPUTE NOTICE"). The Parties agree to use their reasonable efforts to resolve any covenant or agreement contained in Section 4.02 of this AgreementDispute through good faith business negotiation, which shall be deemed a condition precedent to mean individually the institution of any arbitration proceedings. The good faith business negotiations must take place for at least sixty (60) days after the date that the Dispute Notice is delivered to the Indemnified Party. Any Dispute not resolved during such sixty-day period shall be subject to arbitration as herein provided. (iii) If the Parties are unable to agree upon an arbitrator or arbitrators within ten (10) days following the delivery of the responsive pleading in the aggregate arbitration, then three arbitrators or two arbitrators and one umpire, each with experience as an effect arbitrator in at least ten international arbitrations shall be appointed by the American Arbitration Association (of New York City), as it may determine, in accordance with the rules and practices, then obtaining, of such association. The tribunal shall render its award within 365 days after the appointment of the last arbitrator. Such time limitation may be extended either at the request of the tribunal or jointly by the Parties. (iv) Each party shall be entitled to discovery of the other, which discovery shall consist of, but not be limited to, an exchange of all documents in the possession of a party that exceeds $500,000. With are relevant to the factual issues in the case including all documents it intends to rely upon in the arbitration. (v) The language of the Arbitration shall be English. (vi) The parties waive all rights of appeal or recourse to any court except such rights as cannot be so waived according to the law of the state of New York. (vii) The parties to any arbitration hereunder shall maintain strict confidentiality with respect to any breach all aspects of the arbitration and shall not, without the prior written consent of each other party to the arbitration, disclose the fact, conduct or breaches outcome of any such individual representation or warranty contained in this Agreement, or any such covenant or agreement contained in Section 4.02 of this Agreement, which would not have been breached but for the provisions contained in the immediately preceding sentence, such representation, warranty, covenant or agreement shall be deemed not to have been breached arbitration except to the extent such breach is evident in, results from required by applicable law or is directly attributable to information that was not disclosed the extent necessary to enforce a final award in the Schedules hereto but was disclosed in writing prior to the date hereof in the data room set up by Seller at the offices of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. in Dallas, Texas for purposes of Buyer's due dil▇▇▇▇▇▇ investigation of the Company. The provisions contained in the immediately preceding sentence relate only to information actually contained in such data room, with no duty of due diligence or due inquiry on the part of Buyer with respect to such information. An index of all of the documents contained in such data room is attached as Exhibit B hereto. The provisions of this Section 9.04(b) shall have no effect with respect to the covenants and agreements contained in Section 4.02 of this Agreement following the 18-month anniversary of the Closing Datearbitration. (c) The liability for claims made under clause (b)(v) of Section 9.02 shall in no event exceed $2,000,000.

Other Indemnification Matters. (ai) With respect All indemnification payments made pursuant to Seller's liability for claims made under clause (b)(i) of this Section 9.02, Seller shall have no liability for such claims until 9.1 by the aggregate amount of the Losses incurred by Buyer's Indemnified Group shall exceed $2,500,000, in which case Seller shall be liable only for the portion of the Losses exceeding $2,500,000 (the "Deductible"), and in no event shall Seller's liability for such claims exceed $75,000,000 in the aggregate (the "Cap"); provided, however, that claims for breaches of any representations or warranties contained in Section 2.01 shall not be subject to the Deductible or the Cap, but Transferors will be limited in the aggregate to treated as an amount equal adjustment to the Purchase PricePrice unless otherwise required by applicable Law. (bii) Solely Except (A) with respect to claims based upon fraud, (B) for purposes remedies that cannot be waived as a matter of Law and (C) injunctive and provisional relief in accordance with the indemnification provisions contained in terms of this Article IXAgreement, if the word "material" (Closing occurs, this Section 9.1 will be the sole and exclusive remedy for breach of, inaccuracy in, or correlative meanings thereof) contained in failure to comply with, any individual representation representation, warranty, or warranty covenant contained in this Agreement, or any covenant or agreement contained otherwise in Section 4.02 respect of the transactions contemplated by this Agreement, shall be deemed to mean individually or in the aggregate in excess of $500,000, and the words "material adverse effect" contained in any individual representation or warranty contained in this Agreement, or any covenant or agreement contained in Section 4.02 of this Agreement, shall be deemed to mean individually or in the aggregate an effect that exceeds $500,000. . (iii) With respect to any breach indemnification payment obligations of Seller or breaches Owners under this Section 9.1 that is determined to be a Final Indemnification Claim, a Buyer Party shall be entitled to recover such amounts from Seller or Owners, as applicable, under this Agreement. provided, that, such recovery shall come from the following sources in the following order of any such individual representation priority: first, from the Consideration Shares, and second, from Seller or warranty contained Owners, as applicable, provided in this Agreement, or any such covenant or agreement contained in Section 4.02 of this Agreement, which would not have been breached but for the provisions contained in the immediately preceding sentence, such representation, warranty, covenant or agreement second priority a Buyer Party shall be deemed not entitled to have been breached rely on Section 9.1(g) as it relates to the extent any Earn-Out Payments. Any Consideration Shares that are used in satisfaction of such breach is evident in, results from or is directly attributable to information that was not disclosed in the Schedules hereto but was disclosed in writing prior to the date hereof in the data room set up by Seller indemnification obligation shall be valued at the offices of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. in Dallas, Texas for purposes of Buyer's due dil▇▇▇▇▇▇ investigation deemed issuance price of the CompanyConsideration Shares pursuant to Section 2.2(b). The provisions contained in the immediately preceding sentence relate only A “Final Indemnification Claim” shall mean any claim by any Transferor against Seller pursuant to information actually contained in such data room, with no duty of due diligence or due inquiry on the part of Buyer Section 9.1(b) with respect to such information. An index any Losses suffered or incurred by any Transferor that is (i) subject to a written agreement between Seller and any Transferor, (ii) a final settlement between Seller and any Transferor; or (iii) a final adjudication determined by a court of all of the documents contained in such data room competent jurisdiction that an indemnification obligation is attached as Exhibit B hereto. The provisions of this Section 9.04(b) shall have no effect with respect owing by Seller to the covenants and agreements contained in Section 4.02 of this Agreement following the 18-month anniversary of the Closing Datea Buyer Party. (c) The liability for claims made under clause (b)(v) of Section 9.02 shall in no event exceed $2,000,000.

Other Indemnification Matters. (ai) With respect to Seller's liability for claims made under clause (b)(iFor purposes of the indemnity set forth in Sections 8(b)(i) of Section 9.02and 8(c)(i) above, Seller shall have no liability for such claims until the aggregate amount of the Losses incurred by Buyer's Indemnified Group shall exceed $2,500,000resulting or arising therefrom, in which case Seller (x) shall be liable only for determined without reference to any materiality qualifiers (“Material Adverse Effect,” “in all material respects” and similar qualifiers) contained in the portion text of the Losses exceeding $2,500,000 applicable representation or warranty, and (y) shall be adjusted to reflect any remedial action taken or caused to be taken by Seller pursuant to Section 6(k)(i). If any matter could be asserted as an indemnification claim under one or more of the "Deductible"clauses set forth above in Section 8(b) or Section 8(c), the Indemnified Parties may select the clauses under which they assert such claim, and in no event shall Seller's liability for may assert such claims exceed $75,000,000 in the aggregate (the "Cap"); provided, however, that claims for breaches of any representations or warranties contained in Section 2.01 shall not be subject to the Deductible or the Capclaim under multiple clauses, but will not be limited in entitled to collect multiple recoveries for the aggregate to an amount equal to the Purchase Pricesame underlying matter. (bii) Solely for purposes of the indemnification provisions Notwithstanding anything else contained in this Article IXAgreement or any other document in connection with the transactions contemplated hereby, the word "material" (representations, warranties, covenants and obligations of Seller and Purchaser, and the rights and remedies that may be exercised by the Indemnified Parties, based on such representations, warranties, covenants and obligations, will not be limited or correlative meanings thereof) contained in affected by any individual representation investigation conducted by Purchaser or warranty contained in this AgreementSeller or any agent of Purchaser or Seller with respect to, or any covenant knowledge acquired (or agreement contained in Section 4.02 capable of this Agreement, shall be deemed to mean individually being acquired) by Purchaser or in the aggregate in excess of $500,000, and the words "material adverse effect" contained in any individual representation or warranty contained in this Agreement, Seller or any covenant agent of Purchaser or agreement contained in Section 4.02 of this AgreementSeller at any time, shall be deemed to mean individually whether before or in after the aggregate an effect that exceeds $500,000. With Closing, with respect to any breach the accuracy or breaches inaccuracy of or compliance with or performance of any such individual representation or warranty contained in this Agreement, or any such covenant or agreement contained in Section 4.02 of this Agreement, which would not have been breached but for the provisions contained in the immediately preceding sentence, such representation, warranty, covenant or agreement obligation, and no Indemnified Party shall be required to show that it relied on any (and each Indemnified Party shall be deemed not to have been breached relied on each) such representation, warranty, covenant or obligation of Seller or Purchaser, as applicable, in order to the extent such breach is evident in, results from or is directly attributable be entitled to information that was not disclosed in the Schedules hereto but was disclosed in writing prior indemnification pursuant to the date hereof in the data room set up by Seller at the offices of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. in Dallas, Texas for purposes of Buyer's due dil▇▇▇▇▇▇ investigation of the Company. The provisions contained in the immediately preceding sentence relate only to information actually contained in such data room, with no duty of due diligence or due inquiry on the part of Buyer with respect to such information. An index of all of the documents contained in such data room is attached as Exhibit B hereto. The provisions of this Section 9.04(b) shall have no effect with respect to the covenants and agreements contained in Section 4.02 of this Agreement following the 18-month anniversary of the Closing Date8. (c) The liability for claims made under clause (b)(v) of Section 9.02 shall in no event exceed $2,000,000.