Common use of Certain Matters Relating to Indemnification Clause in Contracts

Certain Matters Relating to Indemnification. (a) The Seller will not be required to indemnify the Purchaser Indemnified Parties under Section 9.02(a) unless and until the aggregate amount of Losses for which the Seller would, but for this Section 9.04(a), be required to indemnify under Section 9.02(a) exceeds One Hundred and Twenty-Five Million Dollars ($125,000,000) (the “Deductible”), in which case the Seller shall indemnify the Purchaser Indemnified Parties for the amount of all such Losses in excess of the Deductible; provided, however, that the Deductible will not apply to any Losses resulting from, arising out of, or relating to (A) Fraud, (B) any breach of or inaccuracy in any of the Fundamental Representations, and (C) any breach of the representations and warranties in Section 3.19 (Taxes). (b) Except with respect to Losses resulting from, arising out of or relating to Fraud, the maximum aggregate liability of Seller to the Purchaser Indemnified Parties: (i) for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a) as a result of a breach of or inaccuracy in a representation or warranty (other than a breach of or inaccuracy in any of the Fundamental Representations or in any of the representations and warranties in Section 3.19) shall be limited to an aggregate amount not to exceed One Hundred Eighty Million Dollars ($180,000,000); (ii) for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a) as a result of a breach of or inaccuracy in any of the Fundamental Representations, or in any of the representations and warranties in Section 3.19, shall be limited to an amount equal to the Purchase Price; (iii) subject to Section 9.04(b)(i) and Section 9.04(b)(ii), for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under this Article IX shall be limited, in the aggregate, to an amount equal to the Purchase Price; and (iv) in no event shall the cumulative indemnification obligations of the Seller pursuant to Section 9.02, in the aggregate, exceed an amount equal to the Purchase Price. (c) Notwithstanding anything in this Agreement to the contrary, if any representation or warranty contained in this Agreement or in any certificate delivered pursuant to this Agreement is qualified by materiality, “Material Adverse Effect,” or any other similar qualification, such qualification will be ignored and deemed not included in such representation or warranty for purposes of (i) determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) calculating the amount of Losses resulting from, arising out of, or relating to such breach or inaccuracy provided, however, that this Section 9.04(c) shall not apply to Section 3.06(b), Section 3.07 (solely to the extent of any materiality standard inherent in GAAP), Section 3.08(b), Section 3.14(a) and Section 3.20(a) to any reference herein to “Material Contract” or “Material Supplier”. (d) Notwithstanding anything to the contrary, the Purchaser Indemnified Parties and the Seller Indemnified Parties shall be deemed not to have suffered any Loss (whether in contract, tort or otherwise) to the extent that such Loss arises from any item or matter that is included as part of the settlement of, Closing Date Working Capital Amount.

Certain Matters Relating to Indemnification. (a) The Seller will Sellers shall not be required to indemnify the Purchaser Indemnified Parties under Section 9.02(a9.2(a) unless and until the aggregate amount of Losses for which the Seller Sellers would, but for this Section 9.04(a9.4(a), be required to indemnify under Section 9.02(a9.2(a) exceeds One Hundred and Twenty-Five Million Ten Thousand Dollars ($125,000,000110,000) (the “DeductibleBasket”), in which case the Seller Sellers shall indemnify the Purchaser Indemnified Parties for the amount of all such Losses in excess of without regard to the DeductibleBasket; provided, however, that the Deductible Basket will not apply to any Losses resulting from, arising out of, or relating to (A) Fraud, (B) any breach of or inaccuracy in any of the Sellers’ Fundamental Representations, and (C) Representations or any breach of the Sellers’ representations and or warranties set forth in Section 3.19 3.8(b) and Section 3.17 (Taxes). . Sellers will not be required to indemnify Purchaser Indemnified Parties under (bi) Except with respect Section 9.2(a) for any Losses in excess of the Holdback Amount (the “Cap”); provided, however, that the Cap will not apply to any Losses resulting from, arising out of or relating to Fraud, the maximum aggregate liability of Seller to the Purchaser Indemnified Parties: (i) for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a) as a result of a breach of or inaccuracy in a representation or warranty (other than a any breach of or inaccuracy in any of the Sellers’ Fundamental Representations or in any of the Sellers’ representations and or warranties set forth in Section 3.19) shall be limited to an 3.17 (Taxes); provided, further, that the aggregate amount required to be paid by Sellers under Section 9.2(a) for breaches of any of Sellers’ Fundamental Representations will not to exceed One Hundred Eighty Million Dollars ($180,000,000); the Final Consideration; and (ii) Section 9.2(f) and Section 9.2(g) for any Losses that exceed $2,500,000, in the aggregate, as between this Agreement and the Contribution Agreement. Any indemnification payment to which the any Purchaser Indemnified Parties are Party is entitled to indemnification under Section 9.02(a) 9.2 shall first be made as a result payment to such Purchaser Indemnified Party from the Holdback Amount and, if and when the Holdback Amount had been depleted, any such payment shall be made by Sellers, it being understood that the Holdback Amount shall in no way limit the aggregate amount of a indemnification to which any Purchaser Indemnified Party is entitled, subject to the provisions of this ARTICLE IX. (b) Purchaser and Parent shall not be required to indemnify Seller Indemnified Parties under Section 9.3(a) unless the aggregate amount of Losses for which Purchaser and Parent would be required to indemnify under Section 9.3(a) exceeds the Basket, in which case Purchaser shall indemnify Seller Indemnified Parties for all such Losses without regard to the Basket it being understood that in determining whether the Basket has been satisfied, only Losses for claims under Section 9.2(a) that exceed the Basket shall be payable; provided, however, that the Basket will not apply to any Losses resulting from, arising out of, or relating to any breach of or inaccuracy in any of the Purchaser’s Fundamental Representations, or in any of the representations and warranties in Section 3.19, shall be limited to an amount equal to the Purchase Price; (iii) subject to Section 9.04(b)(i) and Section 9.04(b)(ii), for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under this Article IX shall be limited, in the aggregate, to an amount equal to the Purchase Price; and (iv) in no event shall the cumulative indemnification obligations of the Seller pursuant to Section 9.02, in the aggregate, exceed an amount equal to the Purchase Price. (c) Notwithstanding anything in this Agreement to the contrary, if any representation or warranty contained in this Agreement or in any certificate delivered pursuant to this Agreement is qualified by materiality, “Material Adverse Effect,” or any other similar qualification, such qualification will be ignored and deemed not included in such representation or warranty for purposes of (i) determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) calculating the amount of Losses resulting from, arising out of, or relating to such a breach or inaccuracy provided, however, that this Section 9.04(c) shall not apply to Section 3.06(b), Section 3.07 (solely to the extent of in any materiality standard inherent in GAAP), Section 3.08(b), Section 3.14(a) and Section 3.20(a) to any reference herein to “Material Contract” such representation or “Material Supplier”warranty. (d) Notwithstanding anything to the contrary, the Purchaser Indemnified Parties and the Seller Indemnified Parties shall be deemed not to have suffered any Loss (whether in contract, tort or otherwise) to the extent that such Loss arises from any item or matter that is included as part of the settlement of, Closing Date Working Capital Amount.

Certain Matters Relating to Indemnification. (a) The Seller will shall not be required to indemnify the Purchaser Indemnified Parties under Section 9.02(a9.2(a) unless and until the aggregate amount of Losses for which the Seller would, but for this Section 9.04(a9.4(a), be required to indemnify under Section 9.02(a9.2(a) exceeds One Hundred and Twenty-Sixty Thousand Six Hundred Ninety Five Million Dollars ($125,000,000160,695) (the “Deductible”), in which case the Seller shall indemnify the Purchaser Indemnified Parties for the amount of all such only those certain Losses that are in excess of the Deductible; provided, however, that the Deductible will not apply to any Losses resulting from, arising out of, or relating to (A) Fraud, (B) any breach of or inaccuracy in any of the Seller’s Fundamental Representations, and (C) Representations or any breach of the Seller’s representations and or warranties set forth in Section 3.19 3.17 (Taxes). . Notwithstanding anything to the contrary in this Agreement, Seller will not be required to indemnify Purchaser Indemnified Parties under Section 9.2(a) for any Losses in excess of the value of the Holdback Shares (b) Except with respect the “Cap”); provided, however, that the Cap will not apply to any Losses resulting from, arising out of or relating to Fraud, the maximum aggregate liability of Seller to the Purchaser Indemnified Parties: (i) for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a) as a result of a breach of or inaccuracy in a representation or warranty (other than a any breach of or inaccuracy in any of the Seller’s Fundamental Representations or in any of the Seller’s representations and or warranties set forth in Section 3.193.17 (Taxes); provided, further, that the aggregate amount required to be paid by Seller under Section 9.2(a) will not exceed an amount equal to the Consideration. Notwithstanding anything to the contrary, any indemnification payment to which any Purchaser Indemnified Party is entitled under Section 9.2 shall first be made as a payment to such Purchaser Indemnified Party from the Holdback Shares remaining to be issued to Seller and, if such Holdback Shares have been depleted, any additional amount owed shall be limited paid by Seller with either Purchaser Common Stock or readily available funds, at Seller’s option. For the avoidance of doubt, subject to an the provisions of this ARTICLE IX, it is understood that the Holdback Shares to be issued to Seller shall in no way limit the aggregate amount not of indemnification to exceed One Hundred Eighty Million Dollars ($180,000,000);which any Purchaser Indemnified Party is entitled. (iib) for Losses Purchaser shall not be required to which the Purchaser indemnify Seller Indemnified Parties are entitled to indemnification under Section 9.02(a9.3(a) as a result unless the aggregate amount of a Losses for which Purchaser would be required to indemnify under Section 9.3(a) exceeds the Deductible, in which case Purchaser shall indemnify Seller Indemnified Parties for only those certain Losses that are in excess of the Deductible; provided, however, that the Deductible will not apply to any Losses resulting from, arising out of, or relating to any breach of or inaccuracy in any of the Purchaser’s Fundamental Representations, or in any of the representations and warranties in Section 3.19, shall be limited to an amount equal to the Purchase Price; (iii) subject to Section 9.04(b)(i) and Section 9.04(b)(ii), for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under this Article IX shall be limited, in the aggregate, to an amount equal to the Purchase Price; and (iv) in no event shall the cumulative indemnification obligations of the Seller pursuant to Section 9.02, in the aggregate, exceed an amount equal to the Purchase Price. (c) Notwithstanding anything in this Agreement to the contrary, if any representation or warranty contained in this Agreement or in any certificate delivered pursuant to this Agreement is qualified by materiality, “Material Adverse Effect,” or any other similar qualification, such qualification will be ignored and deemed not included in such representation or warranty for purposes the sole purpose of (i) determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) calculating the amount of Losses resulting from, arising out of, or relating to such breach or inaccuracy inaccuracy; provided, however, that this Section 9.04(c9.4(c) shall not apply with respect to Seller’s Fundamental Representations, Seller’s representations and warranties set forth in Section 3.06(b), Section 3.07 3.17 (solely to the extent of any materiality standard inherent in GAAP), Section 3.08(b), Section 3.14(aTaxes) and Section 3.20(a) to any reference herein to “Material Contract” or “Material Supplier”Purchaser’s Fundamental Representations. (d) Notwithstanding anything to the contrarycontrary contained in this Agreement, (i) Seller shall not be required to indemnify Purchaser Indemnified Parties in respect of or against any and all Post-Closing Taxes resulting from, relating or attributable to the existence, amount, expiration date or limitations on (or availability of) in a taxable period (or portion thereof) beginning after the Closing Date of any tax attribute (including net operating loss, capital loss, Tax credit carryover, Tax basis or other Tax asset) of the Companies generated or arising in or in respect of a taxable period (or portion thereof) ending on or before the Closing Date, and (ii) nothing in this Agreement shall be construed as providing a representation or warranty that could give rise to indemnification for Losses relating to or attributable to Post-Closing Taxes, provided that the preceding clauses (i) and (ii) shall not apply with respect to Post-Closing Taxes arising from a breach of the representations and warranties set forth in Section 3.17(h) and Section 3.17(p). (e) For the purposes of satisfying indemnification claims against Seller under this ‎ARTICLE IX (including from the Holdback Shares to be issued to Seller), the Purchaser Indemnified Parties Common Stock shall be valued based on the Fair Market Value of the Purchaser Common Stock (as adjusted for stock splits, stock dividends and the Seller like), at the time the indemnification claim shall have been finally resolved and payment is made in respect thereof; provided, however, that in lieu of any fractional share of Purchaser Common Stock, each Indemnified Parties Person who would otherwise be entitled to such fractional share of Purchaser Common Stock shall be deemed not entitled to have suffered any Loss receive, at Seller’s election, which election shall be made no later than five (whether 5) Business Days following the final resolution of such indemnification claim, either (i) one share of Purchaser Common Stock or (ii) an amount in contractcash, tort or otherwise) without interest, rounded to the extent that nearest cent, equal to the product of (A) such Loss arises from any item or matter that is included as part fractional amount and (B) the Fair Market Value of the settlement ofPurchaser Common Stock (as adjusted for stock splits, Closing Date Working Capital Amountstock dividends and the like) at the time the indemnification claim shall have been finally resolved and payment is made in respect thereof.

Certain Matters Relating to Indemnification. (a) The Seller will Sellers shall not be required to indemnify the Purchaser Indemnified Parties under Section 9.02(a9.2(a) unless and until the aggregate amount of Losses for which the Seller Sellers would, but for this Section 9.04(a9.4(a), be required to indemnify under Section 9.02(a9.2(a) exceeds One Two Hundred and Twenty-Five Million Nine Thousand Dollars ($125,000,000209,000) (the “Deductible”), in which case the Seller Sellers shall indemnify the Purchaser Indemnified Parties for the amount of all such Losses in excess of that exceed the Deductible; provided, however, that the Deductible will not apply to any Losses resulting from, arising out of, or relating to (A) Fraud, (B) any breach of or inaccuracy in any of the Sellers’ Fundamental Representations, and (C) Representations or any breach of the Sellers’ representations and or warranties set forth in Section 3.19 3.17 (Taxes). . Sellers will not be required to indemnify Purchaser Indemnified Parties under Section 9.2(a) for any Losses in excess of the Holdback Shares (b) Except with respect the “Cap”); provided, however, that the Cap will not apply to any Losses resulting from, arising out of or relating to Fraud, the maximum aggregate liability of Seller to the Purchaser Indemnified Parties: (i) for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a) as a result of a breach of or inaccuracy in a representation or warranty (other than a any breach of or inaccuracy in any of the Sellers’ Fundamental Representations or in any of the Sellers’ representations and or warranties set forth in Section 3.193.17 (Taxes); provided, further, that the aggregate amount required to be paid by Sellers under Section 9.2(a) will not exceed an amount equal to the Final Consideration. Any indemnification payment to which any Purchaser Indemnified Party is entitled under Section 9.2 shall first be made as a payment to such Purchaser Indemnified Party from the Holdback Shares and, if and when the Holdback Shares had been depleted, any such payment shall be limited to an made by each Seller, jointly and severally it being understood that the Holdback Shares shall in no way limit the aggregate amount not of indemnification to exceed One Hundred Eighty Million Dollars ($180,000,000);which any Purchaser Indemnified Party is entitled, subject to the provisions of this ARTICLE VI. (iib) for Losses Purchaser and Merger Sub shall not be required to which the Purchaser indemnify Seller Indemnified Parties are entitled to indemnification under Section 9.02(a9.3(a) as a result unless the aggregate amount of a Losses for which Purchaser and Merger Sub would be required to indemnify under Section 9.3(a) exceeds the Deductible, in which case Purchaser shall indemnify Seller Indemnified Parties for all such Losses that exceed the Deductible; provided, however, that the Deductible will not apply to any Losses resulting from, arising out of, or relating to any breach of or inaccuracy in any of the Purchaser’s Fundamental Representations, or in any of the representations and warranties in Section 3.19, shall be limited to an amount equal to the Purchase Price; (iii) subject to Section 9.04(b)(i) and Section 9.04(b)(ii), for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under this Article IX shall be limited, in the aggregate, to an amount equal to the Purchase Price; and (iv) in no event shall the cumulative indemnification obligations of the Seller pursuant to Section 9.02, in the aggregate, exceed an amount equal to the Purchase Price. (c) Notwithstanding anything in this Agreement to the contrary, if any representation or warranty contained in this Agreement or in any certificate delivered pursuant to this Agreement is qualified by materiality, “Material Adverse Effect,” or any other similar qualification, such qualification will be ignored and deemed not included in such representation or warranty for purposes of (i) determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) calculating the amount of Losses resulting from, arising out of, or relating to such breach or inaccuracy inaccuracy. (d) For the purposes of satisfying indemnification claims against Sellers under this ARTICLE IX (including from the Holdback Shares), the Purchaser Common Stock shall be valued based on the Fair Market Value of the Purchaser Common Stock (as adjusted for stock splits, stock dividends and the like), at the time the indemnification claim shall have been finally resolved and payment is made in respect thereof; provided, however, that this Section 9.04(c) in lieu of any fractional share of Purchaser Common Stock, each Indemnified Person who would otherwise be entitled to such fractional share of Purchaser Common Stock shall not apply be entitled to Section 3.06(b)receive an amount in cash, Section 3.07 (solely without interest, rounded to the extent of any materiality standard inherent in GAAP)nearest cent, Section 3.08(b), Section 3.14(a) and Section 3.20(a) to any reference herein to “Material Contract” or “Material Supplier”. (d) Notwithstanding anything equal to the contrary, product of (i) such fractional amount and (ii) the Fair Market Value of the Purchaser Indemnified Parties Common Stock (as adjusted for stock splits, stock dividends and the Seller Indemnified Parties like) at the time the indemnification claim shall be deemed not to have suffered any Loss (whether been finally resolved and payment is made in contract, tort or otherwise) to the extent that such Loss arises from any item or matter that is included as part of the settlement of, Closing Date Working Capital Amountrespect thereof.

Certain Matters Relating to Indemnification. (a) The Seller will Shareholders shall not be required to indemnify the Purchaser Indemnified Parties under Section 9.02(a10.2(a) or Section 10.2(b) unless and until the aggregate amount of Losses for which the Seller Shareholders would, but for this Section 9.04(a10.4(a), be required to indemnify under Section 9.02(a10.2(a) and Section 10.2(b) exceeds Five Hundred Thirty One Thousand Five Hundred and Twenty-Five Million Nineteen Dollars ($125,000,000531,519) (the “Deductible”) (and, for clarity, any losses subject to the Deductible (as such term is defined under the Stock Purchase Agreement) will be counted for purposes of attaining the Deductible under this Agreement); provided, however, that the Deductible will not apply to any Losses resulting from, arising out of, or relating to any breach of or inaccuracy in any of the Shareholders’ Fundamental Representations or any of the Company’s representations and warranties under Section 3.16(a) (Taxes). From and after Closing, subject to Section 10.4(f) below, the sole recourse of Purchaser Indemnified Parties for any (i) breach of or inaccuracy of a representation or warranty of the Company and the Shareholders under this Agreement or (ii) Indemnified Taxes shall, in each case, be to make a claim against the Escrow Shares; provided, however, that this limitation will not apply to any Losses arising out of any Actual Fraud with respect to a Shareholder that committed the Actual Fraud or a breach of or inaccuracy in any of such Shareholder’s Fundamental Representations. Any indemnification payment to which any Purchaser Indemnified Party is entitled under Sections 10.2(c) to (d) or with respect to a Fundamental Representation, shall first be made as a payment to such Purchaser Indemnified Party from the Escrow Shares and, if and when the Escrow Shares have been depleted, any such payment shall be made by the Shareholders, it being understood that the Escrow Shares shall in no way limit the aggregate amount of indemnification to which any Purchaser Indemnified Party is entitled under Sections 10.2(c) to (d), with respect to a Fundamental Representation, subject to the provisions of this ARTICLE X. (b) Subject to Section 10.4(f) below, except in the case of Actual Fraud committed by the applicable Shareholder, Purchaser Indemnified Parties shall have no claim pursuant to Section 10.2(a) and Section 10.2(b) against a Shareholder for Losses in excess of the lesser of (i) the amount of such Shareholder’s proceeds received from the Consideration, and (ii) such Shareholder’s Pro-Rata Percentage of the Losses of the Purchaser Indemnified Party with respect to such claim. (c) Purchaser shall not be required to indemnify Shareholder Indemnified Parties under Section 10.3(a) for any Losses (i) unless the aggregate amount of Losses for which Purchaser would be required to indemnify under Section 10.3(a) exceeds the Deductible, in which case the Seller Purchaser shall indemnify the Purchaser Shareholder Indemnified Parties for the amount of all such Losses in excess of that exceed the Deductible; provided, however, that the Deductible will not apply to any Losses resulting from, arising out of, or relating to (A) Fraud, (B) any breach of or inaccuracy in any of the Purchaser’s Fundamental Representations, Representations and (Cii) in excess of Seven Million Dollars ($7,000,000) (and, for clarity, any breach losses paid to a Shareholder Indemnified Party under the Stock Purchase Agreement will be counted for purposes of the representations and warranties in Section 3.19 (Taxesattaining this cap amount). (b) Except ; provided, however, that this limitation will not apply to any Losses arising out of any Actual Fraud with respect to Losses resulting from, arising out of Actual Fraud committed by Purchaser or relating to Fraud, the maximum aggregate liability of Seller to the Purchaser Indemnified Parties: (i) for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a) as a result of a any breach of or inaccuracy in a representation or warranty (other than a breach of or inaccuracy in any of the Purchaser’s Fundamental Representations or Representations. The aggregate liability of Purchaser for Losses under Section 10.2(a) shall not in any event exceed the amount of the representations Consideration, and warranties in Section 3.19) Shareholder Indemnified Parties shall be limited to an aggregate amount not to exceed One Hundred Eighty Million Dollars ($180,000,000); (ii) have no claim against Purchaser pursuant thereto for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a) as a result of a breach of or inaccuracy in any excess of the Fundamental Representations, or in any amount of the representations and warranties in Section 3.19Consideration, shall be limited to an amount equal to the Purchase Price; (iii) subject to Section 9.04(b)(i) and Section 9.04(b)(ii), for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under this Article IX shall be limited, except in the aggregate, to an amount equal to the Purchase Price; and (iv) in no event shall the cumulative indemnification obligations case of the Seller pursuant to Section 9.02, in the aggregate, exceed an amount equal to the Purchase PriceActual Fraud. (cd) Notwithstanding anything in this Agreement to the contrary, if any representation or warranty contained in this Agreement or in any certificate delivered pursuant to this Agreement is qualified by materiality, “Material Adverse Effect,” or any other similar qualification, such qualification will be ignored and deemed not included in such representation or warranty for purposes of (i) determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) calculating the amount of Losses resulting from, arising out of, or relating to such breach or inaccuracy inaccuracy. (e) Any specific matter for which an Indemnified Person would otherwise be entitled to indemnification under the terms of this ARTICLE X shall not be an indemnifiable Loss to the extent such matter is reflected in the calculation of the Consideration as finally determined in accordance with this Agreement; provided, however, that, if the Loss is in excess of the specific reserve or the amount included in the Consideration, then a Purchaser Indemnified Party may make a claim for the amount in excess of such reserve or amount included in the calculation of the Consideration. (f) No provision of this Agreement or the Stock Purchase Agreement shall be construed to provide an indemnity or other recovery for any Losses for which an Indemnified Person has recovered under any other provision of this Agreement, the Stock Purchase Agreement, or any other agreement, certificate or action at law or equity. Additionally, an Indemnified Person shall seek recovery for Losses arising from the same facts and circumstances contemporaneously under this Agreement and the Stock Purchase Agreement, and in the event such Indemnified Person is determined to (i) have the right to recover Losses under this Agreement, then such Indemnified Person shall also have the right to recover such Losses under the Stock Purchase Agreement, and twenty-five percent (25%) of such Losses shall be recovered under this Agreement and seventy-five percent (75%) of such Losses shall be recovered under the Stock Purchase Agreement, or (ii) not have any right to recover such Losses under this Agreement, then such Indemnified Person shall not have any right to recover Losses under the Stock Purchase Agreement arising from such same facts and circumstances. (g) For the purposes of satisfying indemnification claims against the Shareholders under this ARTICLE X (including from the Escrow Shares), the Purchaser Common Stock shall be valued based on the Fair Market Value of the Purchaser Common Stock (as adjusted for stock splits, stock dividends and the like), at the time the indemnification claim shall have been finally resolved and payment is made in respect thereof; provided, however, that this Section 9.04(c) in lieu of any fractional share of Purchaser Common Stock, each Indemnified Person who would otherwise be entitled to such fractional share of Purchaser Common Stock shall not apply be entitled to Section 3.06(b)receive an amount in cash, Section 3.07 (solely without interest, rounded to the extent of any materiality standard inherent in GAAP)nearest cent, Section 3.08(b), Section 3.14(a) and Section 3.20(a) to any reference herein to “Material Contract” or “Material Supplier”. (d) Notwithstanding anything equal to the contrary, product of (i) such fractional amount and (ii) the Fair Market Value of the Purchaser Indemnified Parties Common Stock (as adjusted for stock splits, stock dividends and the Seller Indemnified Parties like) at the time the indemnification claim shall be deemed not to have suffered any Loss (whether been finally resolved and payment is made in contract, tort or otherwise) to the extent that such Loss arises from any item or matter that is included as part of the settlement of, Closing Date Working Capital Amountrespect thereof.

Certain Matters Relating to Indemnification. (a) The Seller Sellers will not be required to indemnify the Purchaser Indemnified Parties under Section 9.02(a11.2(b)(i) unless and until the aggregate amount of Losses for which the Seller Sellers would, but for this Section 9.04(a11.4(a), be required to indemnify under Section 9.02(a11.2(b)(i) exceeds One Two Million Eight Hundred and Twenty-Five Million Thousand Dollars ($125,000,0002,800,000) (the “DeductibleBasket”), in which case the Seller Sellers shall indemnify the Purchaser Indemnified Parties for the amount of all such Losses in excess from the first dollar of the DeductibleLosses; provided, however, that the Deductible Basket will not apply to any Losses resulting from, arising out of, or relating to (A) Fraud, (B) any breach of or inaccuracy in any of the Company’s Fundamental Representations, and (C) Representations or any breach of the Company’s representations and or warranties set forth in Section 3.19 5.17 (Taxes). (b. Purchaser will not be required to indemnify the Seller Indemnified Parties under Section 11.3(a) Except with respect unless the aggregate amount of Losses for which Purchaser would, but for this Section 11.4(a), be required to indemnify under Section 11.3(a) exceeds the Basket, in which case Purchaser shall indemnify the Seller Indemnified Parties for all such Losses from the first dollar of Losses; provided, however, that the Basket will not apply to any Losses resulting from, arising out of of, or relating to Fraud, the maximum aggregate liability of Seller to the Purchaser Indemnified Parties: (i) for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a) as a result of a any breach of or inaccuracy in a representation any of Purchaser’s Fundamental Representations. (b) Sellers will not be required to indemnify the Purchaser Indemnified Parties under Section 11.2(b)(i) for any Losses in excess of Forty-Two Million Dollars ($42,000,000) (the “Cap”); provided, however, that the Cap will not apply to any Losses arising out of or warranty (other than a relating to any breach of or inaccuracy in any of the Company’s Fundamental Representations or in any of the representations and warranties set forth in Section 3.19) shall be limited to an 5.17 (Taxes); provided, further, that, absent fraud, the aggregate amount not required to exceed One Hundred Eighty Million Dollars ($180,000,000); (ii) for Losses to which the Purchaser Indemnified Parties are entitled to indemnification be paid by Sellers under Section 9.02(a) as a result of a breach of or inaccuracy in any of the Fundamental Representations, or in any of the representations and warranties in Section 3.19, shall be limited to an amount equal to the Purchase Price; (iii) subject to Section 9.04(b)(i) and Section 9.04(b)(ii), for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under this Article IX shall be limited, in the aggregate, to an amount equal to the Purchase Price; and (iv) in no event shall the cumulative indemnification obligations of the Seller pursuant to Section 9.02, in the aggregate, 11.2 will not exceed an amount equal to the Final Cash Purchase PricePrice plus the value of the Non-Cash Consideration (i.e., Eighty Million Dollars ($80,000,000)), with the liability of each Seller not to exceed the amount of consideration they actually received hereunder. Absent fraud, the aggregate amount required to be paid by Purchaser under Section 11.3 will not exceed an amount equal to the Final Cash Purchase Price plus the value of the Non-Cash Consideration (i.e., Eighty Million Dollars ($80,000,000)). (c) Notwithstanding anything to the contrary contained in this Agreement, the sole and exclusive source of payment for Losses resulting or arising from claims for indemnification pursuant to Section 11.2(b)(i) for breaches of representations other than Fundamental Representations or any of the Company’s representations or warranties set forth in Section 5.17 (Taxes) will be sought only from the Indemnity Escrow Account in accordance with the Escrow Agreement (but without affecting any express requirement to replenish the Indemnity Escrow Account in accordance with this Agreement). Except as provided in the immediately preceding sentence, any indemnification payment to which any Purchaser Indemnified Party is entitled under Section 11.2(b) shall first be made as a payment to such Purchaser Indemnified Party from the Indemnity Escrow Account in accordance with the Escrow Agreement and, if and when the Indemnity Escrow Account has been depleted, any such payment shall be made by Sellers, severally and not jointly, in accordance with their respective Percentage Interests, it being understood that the amount of funds held in the Indemnity Escrow Account shall in no way limit the aggregate amount of indemnification to which any Purchaser Indemnified Party is entitled, subject to the provisions of this ARTICLE XI. All payments to Purchaser Indemnified Parties under Section 11.2 shall be satisfied first from the Indemnity Escrow Cash Amount, then from the Indemnity Escrow Shares. Any indemnification payment to which any Purchaser Indemnified Party is entitled under Section 11.2(a) shall be made by the Seller responsible for such payment. (d) Notwithstanding anything in this Agreement to the contrary, if any representation or warranty contained in this Agreement or in any certificate delivered pursuant to this Agreement is qualified by materiality, “Material Adverse Effect,” or any other similar qualification, such qualification will be ignored and deemed not included in such representation or warranty for purposes of (i) determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) calculating the amount of Losses resulting from, arising out of, or relating to such a breach of or inaccuracy provided, however, that this Section 9.04(c) shall in such representation or warranty but not apply to Section 3.06(b), Section 3.07 (solely to the extent in determining whether there has been a breach of any materiality standard inherent or inaccuracy in GAAP), Section 3.08(b), Section 3.14(a) and Section 3.20(a) to any reference herein to “Material Contract” such representation or “Material Supplier”warranty. (de) Notwithstanding anything to The representations, warranties, covenants, and agreements of the contraryParties contained in this Agreement, and the rights and remedies of the Purchaser Indemnified Parties and the Seller Indemnified Parties shall with respect thereto, will not be deemed not to have suffered affected by any Loss (investigation, inquiry, or examination made by or on behalf of either Party, or the knowledge of either Party or their respective Representatives, regardless of whether in contractsuch investigation, tort inquiry, or otherwise) to examination was conducted, or such knowledge was obtained, prior to, at, or after the extent that such Loss arises from any item execution of this Agreement or matter that is included as part the consummation of the settlement ofClosing and regardless of whether such knowledge was obtained from the other Party, Closing Date Working Capital Amountany of its Representatives, or any other Person.

Certain Matters Relating to Indemnification. (a) The Seller will not be required to indemnify the Purchaser Indemnified Parties under Section 9.02(a11.2(a) unless and until the aggregate amount of Losses for which the Seller would, but for this Section 9.04(a11.4(a), be required to indemnify under Section 9.02(a11.2(a) exceeds One Million Nine Thousand One Hundred and Twenty-Twenty Five Million Dollars ($125,000,0001,009,125) (the “Deductible”), in which case the Seller shall indemnify the Purchaser Indemnified Parties for the amount of all such Losses in excess of the Deductible; provided, however, that the Deductible will not apply to any Losses resulting from, arising out of, or relating to (Ai) Fraud, or (Bii) any breach of or inaccuracy in any of the Fundamental Representations. (b) Except with respect to Losses resulting from, arising out of or relating to (i) Fraud, or (ii) any breach of or inaccuracy in any of the Fundamental Representations, and (Conce the indemnifiable Losses exceed the Deductible, the maximum aggregate liability of Seller to the Purchaser Indemnified Parties for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 11.2(a) any as a result of a breach of or inaccuracy in a representation or warranty shall be limited to an aggregate amount of One Million Nine Thousand One Hundred Twenty Five Dollars ($1,009,125) and any such indemnification shall be satisfied solely by recovery from the representations and warranties in Section 3.19 (Taxes)Indemnity Escrow Funds. (bc) Except with respect to Losses resulting from, arising out of or relating to Fraud, the maximum aggregate liability of Seller to the Purchaser Indemnified Parties: (i) Parties for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a11.2(a) as a result of a breach of or inaccuracy in a representation or warranty (other than a breach of or inaccuracy in any of the Fundamental Representations or in any of the representations and warranties in Section 3.19) shall be limited limited, in the aggregate, to an aggregate amount not equal to exceed One Hundred Eighty Million Dollars ($180,000,000);the Indemnity Escrow Funds, and any such indemnification shall be satisfied solely by recovery from the Indemnity Escrow Funds. (iid) Except with respect to Losses resulting from, arising out of or relating to Fraud, the maximum aggregate liability of Seller to the Purchaser Indemnified Parties for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a11.2(e) as a result of a breach of or inaccuracy in any of the Fundamental Representations, or in any of the representations and warranties in Section 3.19, shall be limited to an amount equal to the Purchase Price; (iii) subject to Section 9.04(b)(i) and Section 9.04(b)(ii), for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under this Article IX shall be limited, in the aggregate, to an amount equal to the Purchase Price; and (iv) in no event Specific Indemnity Escrow Amount, and any such indemnification shall be satisfied solely by recovery from the cumulative indemnification obligations of the Seller pursuant to Section 9.02, in the aggregate, exceed an amount equal to the Purchase PriceSpecific Indemnity Escrow Amount. (ce) Notwithstanding anything in this Agreement to the contrary, if any representation or warranty contained in this Agreement or in any certificate delivered pursuant to this Agreement is qualified by materiality, “Material Adverse Effect,” or any other similar qualification, such qualification will be ignored and deemed not included in such representation or warranty for purposes of (i) determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) calculating the amount of Losses resulting from, arising out of, or relating to such breach or inaccuracy provided, however, that this Section 9.04(c) shall not apply to Section 3.06(b), Section 3.07 (solely to the extent of any materiality standard inherent in GAAP), Section 3.08(b), Section 3.14(a) and Section 3.20(a) to any reference herein to “Material Contract” or “Material Supplier”inaccuracy. (df) Notwithstanding anything to the contrary, the Purchaser Indemnified Parties and the Seller Indemnified Parties shall be deemed not to have suffered any Loss (whether in contract, tort or otherwise) to the extent that such Loss arises from any item or matter that is included or otherwise taken into account in, or was raised as part of the settlement of, Closing Date Net Working Capital Amountor the other components of the Final Closing Payment. (g) Each Party will take commercially reasonable actions to mitigate any indemnifiable Losses for which such Party seeks indemnification under this Agreement to the extent such mitigation is required by applicable Law.

Certain Matters Relating to Indemnification. (a) The Seller will Shareholders shall not be required to indemnify the Purchaser Indemnified Parties under Section 9.02(a10.2(a) or Section 10.2(b) unless and until the aggregate amount of Losses for which the Seller Shareholders would, but for this Section 9.04(a10.4(a), be required to indemnify under Section 9.02(a10.2(a) and Section 10.2(b) exceeds Five Hundred Thirty One Thousand Five Hundred and Twenty-Five Million Nineteen Dollars ($125,000,000531,519) (the “Deductible”) (and, for clarity, any losses subject to the Deductible (as such term is defined under the Contribution Agreement) will be counted for purposes of attaining the Deductible under this Agreement); provided, however, that the Deductible will not apply to any Losses resulting from, arising out of, or relating to any breach of or inaccuracy in any of the Shareholders’ Fundamental Representations or any of the Company’s representations and warranties under Section 3.16(a) (Taxes). From and after Closing, subject to Section 10.4(f) below, the sole recourse of Purchaser Indemnified Parties for any (i) breach of or inaccuracy of a representation or warranty of the Company and the Shareholders under this Agreement or (ii) Indemnified Taxes shall, in each case, be to make a claim against the Escrow Amount; provided, however, that this limitation will not apply to any Losses arising out of any Actual Fraud with respect to a Shareholder that committed the Actual Fraud or a breach of or inaccuracy in any of such Shareholder’s Fundamental Representations. Any indemnification payment to which any Purchaser Indemnified Party is entitled under Sections 10.2(c) to (e) or with respect to a Fundamental Representation, shall first be made as a payment to such Purchaser Indemnified Party from the Escrow Amount and, if and when the Escrow Amount has been depleted, any such payment shall be made by the Shareholders, it being understood that the Escrow Amount shall in no way limit the aggregate amount of indemnification to which any Purchaser Indemnified Party is entitled under Sections 10.2(c) to (e), with respect to a Fundamental Representation, subject to the provisions of this ARTICLE X. (b) Subject to Section 10.4(f) below, except in the case of Actual Fraud committed by the applicable Shareholder, Purchaser Indemnified Parties shall have no claim pursuant to Section 10.2(a) and Section 10.2(b) against a Shareholder for Losses in excess of the lesser of (i) the amount of such Shareholder’s proceeds received from the Consideration, and (ii) such Shareholder’s Pro-Rata Percentage of the Losses of the Purchaser Indemnified Party with respect to such claim. (c) Purchaser and Parent shall not be required to indemnify Shareholder Indemnified Parties under Section 10.3(a) for any Losses (i) unless the aggregate amount of Losses for which Purchaser and Parent would be required to indemnify under Section 10.3(a) exceeds the Deductible, in which case the Seller Purchaser and Parent shall jointly and severally indemnify the Purchaser Shareholder Indemnified Parties for the amount of all such Losses in excess of that exceed the Deductible; provided, however, that the Deductible will not apply to any Losses resulting from, arising out of, or relating to (A) Fraud, (B) any breach of or inaccuracy in any of the Purchaser’s Fundamental Representations, Representations and (Cii) in excess of Seven Million Dollars ($7,000,000) (and, for clarity, any breach losses paid to a Shareholder Indemnified Party under the Contribution Agreement, will be counted for purposes of the representations and warranties in Section 3.19 (Taxesattaining this cap amount). (b) Except ; provided, however, that this limitation will not apply to any Losses arising out of any Actual Fraud with respect to Losses resulting from, arising out of Actual Fraud committed by Purchaser or relating to Fraud, the maximum aggregate liability of Seller to the Purchaser Indemnified Parties: (i) for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a) as a result of a any breach of or inaccuracy in a representation or warranty (other than a breach of or inaccuracy in any of the Purchaser’s Fundamental Representations or Representations. The aggregate liability of Purchaser for Losses under Section 10.2(a) shall not in any event exceed the amount of the representations Final Consideration, and warranties in Section 3.19) Shareholder Indemnified Parties shall be limited to an aggregate amount not to exceed One Hundred Eighty Million Dollars ($180,000,000); (ii) have no claim against Purchaser pursuant thereto for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under Section 9.02(a) as a result of a breach of or inaccuracy in any excess of the Fundamental Representations, or in any amount of the representations and warranties in Section 3.19Final Consideration, shall be limited to an amount equal to the Purchase Price; (iii) subject to Section 9.04(b)(i) and Section 9.04(b)(ii), for Losses to which the Purchaser Indemnified Parties are entitled to indemnification under this Article IX shall be limited, except in the aggregate, to an amount equal to the Purchase Price; and (iv) in no event shall the cumulative indemnification obligations case of the Seller pursuant to Section 9.02, in the aggregate, exceed an amount equal to the Purchase PriceActual Fraud. (cd) Notwithstanding anything in this Agreement to the contrary, if any representation or warranty contained in this Agreement or in any certificate delivered pursuant to this Agreement is qualified by materiality, “Material Adverse Effect,” or any other similar qualification, such qualification will be ignored and deemed not included in such representation or warranty for purposes of (i) determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) calculating the amount of Losses resulting from, arising out of, or relating to such breach or inaccuracy inaccuracy. (e) Any specific matter for which an Indemnified Person would otherwise be entitled to indemnification under the terms of this ARTICLE X shall not be an indemnifiable Loss to the extent such matter is reflected in the calculation of the Final Consideration as finally determined in accordance with this Agreement; provided, however, that this Section 9.04(c) shall not apply to Section 3.06(b)that, Section 3.07 (solely to if the extent Loss is in excess of any materiality standard inherent the specific reserve or the amount included in GAAP)the Final Consideration, Section 3.08(b), Section 3.14(a) and Section 3.20(a) to any reference herein to “Material Contract” then a Purchaser Indemnified Party may make a claim for the amount in excess of such reserve or “Material Supplier”amount included in the calculation of the Final Consideration. (df) Notwithstanding anything No provision of this Agreement or the Contribution Agreement shall be construed to the contraryprovide an indemnity or other recovery for any Losses for which an Indemnified Person has recovered under any other provision of this Agreement, the Purchaser Contribution Agreement, or any other agreement, certificate or action at law or equity. Additionally, an Indemnified Parties Person shall seek recovery for Losses arising from the same facts and circumstances contemporaneously under this Agreement and the Seller Contribution Agreement, and in the event such Indemnified Parties Person is determined to (i) have the right to recover Losses under this Agreement, then such Indemnified Person shall also have the right to recover such Losses under the Contribution Agreement, and seventy-five percent (75%) of such Losses shall be deemed recovered under this Agreement and twenty-five percent (25%) of such Losses shall be recovered under the Contribution Agreement, or (ii) not have any right to recover such Losses under this Agreement, then such Indemnified Person shall not have suffered any Loss (whether in contract, tort or otherwise) right to recover Losses under the extent that Contribution Agreement arising from such Loss arises from any item or matter that is included as part of the settlement of, Closing Date Working Capital Amountsame facts and circumstances.