LOSSES WHICH THE BUYER
INDEMNIFIED PARTIES SHALL HAVE ANY RIGHT TO INDEMNIFICATION BY THE SHAREHOLDERS
PURSUANT TO SECTION 9.2(A) OR 9.2(B)(I)
SHALL NOT EXCEED [****]
(THE "CAP");
PROVIDED, THAT THE CAP SHALL NOT APPLY TO LOSSES AS A RESULT OF OR ARISING OUT
OF OR IN CONNECTION WITH THE INACCURACY OR BREACH OF ANY REPRESENTATION OR
WARRANTY CONTAINED [****].
(C)
MITIGATION OF LOSSES.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY SET FORTH IN THIS AGREEMENT, THE PARTIES SHALL TAKE COMMERCIALLY
REASONABLE STEPS (TO THE EXTENT THEN AVAILABLE OR POSSIBLE) TO MITIGATE ALL
LOSSES UPON AND AFTER BECOMING AWARE OF ANY EVENT THAT COULD REASONABLY BE
EXPECTED TO GIVE RISE TO SUCH LOSSES (PROVIDED THAT THE COSTS OF SUCH MITIGATION
SHALL BE INDEMNIFIABLE LOSSES HEREUNDER).
(D)
LIMITATION ON DAMAGES.
IN NO EVENT SHALL ANY PARTY BE LIABLE
FOR LOSS OF PROFITS OR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
FOR ANY REASON WHATSOEVER OR FOR ANY MULTIPLE OF DAMAGES OR ANY MULTIPLE OF
EARNINGS OR EBITDA, INCLUDING, BUT NOT LIMITED TO, ANY INACCURACY OR BREACH OF
ANY REPRESENTATION OR WARRANTY MADE BY ANY PARTY IN THIS AGREEMENT OR ANY
TRANSACTION DOCUMENT; PROVIDED, HOWEVER THAT THE FOREGOING WILL NOT PRECLUDE A
PARTY FROM RECOVERING DIRECT DAMAGES FOR DIMINUTION OF VALUE.
THE PARTIES WILL
BE ENTITLED TO INDIRECT, PUNITIVE, ETC. DAMAGES IN THE EVENT THAT THE
INDEMNIFIED PARTY IS REQUIRED TO PAY SUCH DAMAGES TO A THIRD PARTY.
(E)
LOSSES.
THE AMOUNT OF ANY LOSSES FOR WHICH INDEMNIFICATION
IS PROVIDED UNDER THIS ARTICLE 9 SHALL BE NET OF (I) ANY ACCRUALS OR RESERVES ON
THE FINAL CLOSING STATEMENT WITH RESPECT TO SUCH MATTER, (II) ANY CORRESPONDING
TAX BENEFITS OR TAX DETRIMENTS (INCLUDING, BUT NOT LIMITED TO, ANY REFUND OR
REDUCTION IN TAXES OTHERWISE PAYABLE) REALIZABLE BY AN INDEMNIFIED PERSON OR ITS
AFFILIATES WITH RESPECT TO SUCH MATTER; AND (III) ANY INSURANCE PROCEEDS PAYABLE
TO
42
BUYER OR THE COMPANY OR ANY OTHER INDEMNIFIED PERSON WITH RESPECT TO SUCH
MATTER.
IN THE EVENT THAT ANY SUCH INSURANCE PROCEEDS OR RECOVERY ARE RECEIVED
BY AN INDEMNIFIED PERSON OR AFFILIATE THEREOF AFTER PAYMENT OF AN INDEMNITY
CLAIM BY AN INDEMNIFYING PERSON HEREUNDER, THE INDEMNIFIED PERSON SHALL PROMPTLY
PAY THE AMOUNT OF SUCH PROCEEDS OR OTHER RECOVERY TO THE INDEMNIFYING PERSON TO
THE EXTENT OF THE INDEMNIFYING PERSON'S PRIOR PAYMENT.
ANY INSURANCE PROCEEDS
OR RECOVERY RECEIVED BY THE BUYER OR THE COMPANY WITH RESPECT TO ANY ACTION
LISTED ON SCHEDULE 3.8 OR A THIRD PARTY CLAIM ARISING OUT OF OR RELATED THERETO
SHALL BE DEPOSITED WITH THE ESCROW AGENT AND ADDED TO THE LITIGATION ESCROW WITH
RESPECT TO ANY ACTION LISTED ON SCHEDULE 3.8 OR TO THE INDEMNITY ESCROW WITH
RESPECT TO ANY SUCH THIRD PARTY CLAIM; PROVIDED THAT ALL PROCEEDS
SHALL BE
DISBURSED IN ACCORDANCE WITH THE ESCROW AGREEMENT; AND PROVIDED FURTHER THAT ANY
SUCH INSURANCE PROCEEDS OR RECOVERY ATTRIBUTABLE TO COSTS OR EXPENSES INCURRED
BY THE COMPANY PRIOR TO THE CLOSING DATE SHALL BE DISPERSED TO THE SHAREHOLDERS
AS DIRECTED BY THE LITIGATION SH REPRESENTATIVE.
(F)
NO