Common use of Defect Eliminated in Final Prospectus Clause in Contracts

Defect Eliminated in Final Prospectus. The foregoing indemnity agreements of the Company and Holders are subject to the condition that insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “Final Prospectus”), such indemnity agreement shall not inure to the benefit of any indemnified party if a copy of the Final Prospectus was furnished to such indemnified party and was not furnished by such indemnified party to the person asserting the loss, liability, claim or damage at or prior to the time such action on the part of the indemnified party is required by the Securities Act.

Defect Eliminated in Final Prospectus. The foregoing indemnity ------------------------------------- agreements of Excite@Home and the Company and Holders are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended or supplemented prospectus on file with the SEC and effective at the time the sale of Registrable Securities under such registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) occurs (the “Final "Amended Prospectus”"), such indemnity agreement shall not inure to the benefit of any indemnified party person if a copy of the Final Amended Prospectus was furnished to such the indemnified party and was not furnished by such indemnified party to the person asserting the loss, liability, claim or damage in the action giving rise to indemnity claims under this Section 12.9, at or prior to the time such action on the part of the indemnified party is required by the Securities Act.

Defect Eliminated in Final Prospectus. The foregoing indemnity agreements indemnification rights of the Holder Indemnified Parties, the Company Indemnified Parties and Holders the Other Holder Indemnified Parties are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “Final Prospectus”), such indemnity agreement indemnification rights shall not inure to the benefit of any indemnified party person if a copy of the Final Prospectus was furnished to such the indemnified party and was not furnished by such indemnified party to the person asserting the loss, liability, claim or damage against the indemnified party at or prior to the time such action on the part of the indemnified party is required by the Securities Act.

Defect Eliminated in Final Prospectus. The foregoing indemnity ------------------------------------- agreements of Keynote and the Company and Holders are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended or supplemented prospectus on file with the SEC and effective at the time the sale of Registrable Securities under such registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) occurs (the “Final "Amended Prospectus”"), such indemnity agreement shall not inure to the benefit of any indemnified party person if a copy of the Final Amended Prospectus was furnished to such the indemnified party and was not furnished by such indemnified party to the person asserting the loss, liability, claim or damage in the action giving rise to indemnity claims under this Section 12.9, at or prior to the time such action on the part of the indemnified party is required by the Securities Act.

Defect Eliminated in Final Prospectus. The foregoing ------------------------------------- indemnity agreements of the Company and Holders are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “"Final Prospectus”), such indemnity agreement shall not inure to the benefit of any indemnified party if a copy of the Final Prospectus was furnished to such the indemnified party and was not furnished by such the indemnified party was required to, but did not, furnish the Final Prospectus to the person asserting the loss, liability, claim or damage at or prior to the time such action on the part of the indemnified party is required by the Securities Act.

Defect Eliminated in Final Prospectus. The foregoing indemnity agreements of the Company and Holders are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “"Final Prospectus”"), such indemnity agreement shall not inure to the benefit of any indemnified party if a copy of the Final Prospectus was furnished to such the indemnified party and was not furnished by such the indemnified party was required to, but did not, furnish the Final Prospectus to the person asserting the loss, liability, claim or damage at or prior to the time such action on the part of the indemnified party is required by the Securities Act.

Defect Eliminated in Final Prospectus. The foregoing ------------------------------------- indemnity agreements of the Company and Holders are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus prepared in connection with sales of Registrable Securities by a selling Holder in an offering which is not underwritten, but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “"Final Prospectus”"), such indemnity agreement shall not inure to the benefit of any indemnified party person if a copy of the Final Prospectus was furnished to such the indemnified party and was not furnished by such indemnified party to the person asserting the loss, liability, claim or damage at or prior to the time such action on the part of the indemnified party is required by the Securities Act.

Defect Eliminated in Final Prospectus. The foregoing indemnity ------------------------------------- agreements of the Company Parent and Holders Holder are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “"Final Prospectus”"), such indemnity agreement shall not inure to the benefit of any indemnified party person if a copy of the Final Prospectus was furnished to such the indemnified party and was not furnished by such indemnified party to the person asserting the loss, liability, claim or damage at or prior to the time such action on the part of the indemnified party is required by the Securities Act, but only to the extent such failure to deliver the Final Prospectus is the fault of the indemnified party or any person acting on such indemnified person's behalf.

Defect Eliminated in Final Prospectus. The foregoing ------------------------------------- indemnity agreements of the Company and Holders are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “"Final Prospectus”"), such indemnity agreement shall not inure to the benefit of any indemnified party if a copy of the Final Prospectus was furnished to such the indemnified party and was not furnished by such the indemnified party was required to, but did not, furnish the Final Prospectus to the person asserting the loss, liability, claim or damage at or prior to the time such action on the part of the indemnified party is required by the Securities Act.

Defect Eliminated in Final Prospectus. The foregoing indemnity agreements of the Company Parent and Holders Holder are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “"Final Prospectus”"), such indemnity agreement shall not inure to the benefit of any indemnified party person if a copy of the Final Prospectus was furnished to such the indemnified party and was not furnished by such indemnified party to the person asserting the loss, liability, claim or damage at or prior to the time such action on the part of the indemnified party is required by the Securities Act, but only to the extent such failure to deliver the Final Prospectus is the fault of the indemnified party or any person acting on such indemnified person's behalf.

Defect Eliminated in Final Prospectus. The foregoing indemnity agreements of the Company and Holders the sellers of Restricted Stock are subject to the condition that that, insofar as they relate to any Violation made misstatements or omissions in a preliminary prospectus but eliminated or remedied in the amended or supplemented prospectus on file with the SEC Commission at the time the registration statement in question becomes effective or the amended or supplemented prospectus filed with the SEC Commission pursuant to SEC Rule 424(b) (the “Final Prospectus”), such indemnity agreement shall not inure to the benefit of any indemnified party person if a copy of the Final Prospectus amended or supplemented prospectus was furnished to the indemnified party and such indemnified party and was not furnished by such indemnified party failed to deliver a copy of the final or amended or supplemented prospectus at or prior to the person sale of the shares registered in such offering to the Person asserting the loss, liability, claim or damage at or prior to the time in any case where such action on the part of the indemnified party is delivery was required by the Securities Act.

Defect Eliminated in Final Prospectus. The foregoing ------------------------------------- indemnity agreements of Extreme and the Company and Holders are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended or supplemented prospectus on file with the SEC and effective at the time the sale of Registrable Securities under such registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) occurs (the “Final "Amended Prospectus”"), such indemnity ------------------ agreement shall not inure to the benefit of any indemnified party person if a copy of the Final Amended Prospectus was furnished to such the indemnified party and was not furnished by such indemnified party to the person asserting the loss, liability, claim or damage in the action giving rise to indemnity claims under this Section 1.9, at or prior to the time such action on the part of the indemnified party is required by the Securities Act.

Defect Eliminated in Final Prospectus. The foregoing ------------------------------------- indemnity agreements of the Company and Holders are subject to the condition that that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “"Final ----- Prospectus”"), such indemnity agreement shall not inure to the benefit of any indemnified party ---------- person if a copy of the Final Prospectus was furnished to such the indemnified party and was not furnished by such indemnified party to the person asserting the loss, liability, claim or damage at or prior to the time such action on the part of the indemnified party is required by the Securities Act; provided, however, that this condition shall only apply where the indemnified -------- ------- party had an obligation to provide the Final Prospectus to such person.