Common use of INDEMNIFICATION AND PAYMENT OF DAMAGES Clause in Contracts

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon the effectiveness of the NorthStar Merger, the NorthStar stockholders, jointly and severally, shall be deemed to indemnify and hold harmless Buyer, the Acquired Companies, and their respective Representatives, stockholders, controlling persons, and affiliates (collectively, the “Indemnified Persons”) for, and will pay to the Indemnified Persons the amount of, any loss, liability, claim, damage (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys’ fees) or diminution of value, whether or not involving a third-party claim (collectively, “Damages”), arising, directly or indirectly, from or in connection with: (a) any Breach of any representation or warranty made by the Acquired Companies in this Agreement (without giving effect to any supplement to the Disclosure Letter), the Disclosure Letter, the supplements to the Disclosure Letter, or any other certificate or document delivered by the Acquired Companies pursuant to this Agreement; (b) any Breach of any representation or warranty made by the Acquired Companies in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Disclosure Letter, other than any such Breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in the certificate delivered pursuant to Section 7.2(d)(vi) as having caused the condition specified in Section 7.2 not to be satisfied; (c) any Breach by any Acquired Company of any covenant or obligation of such Acquired Company in this Agreement; (d) any Breach by Seller Representative of any covenant or obligation of Seller Representative in this Agreement or any NorthStar Closing Document; (e) any services provided by any Acquired Company prior to the Closing Date; (f) any matter disclosed in Part 3.6 (NorthStar Loans USA) of the Disclosure Letter; (g) any claim by a holder of a NorthStar Option with respect to treatment of such Option or the Option Notice or Option Consideration; or (h) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Acquired Company (or any Person acting on their behalf) in connection with any of the Contemplated Transactions.

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon the effectiveness of the NorthStar Merger, the NorthStar stockholdersClayco shareholders, jointly and severally, shall be deemed to indemnify and hold harmless Buyer, the Acquired Companies, and their respective Representatives, stockholders, controlling persons, and affiliates (collectively, the “Indemnified Persons”) for, and will pay to the Indemnified Persons the amount of, any loss, liability, claim, damage (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys’ fees) or diminution of value, whether or not involving a third-party claim (collectively, “Damages”), arising, directly or indirectly, from or in connection with: (a) any Breach of any representation or warranty made by the Acquired Companies in this Agreement (without giving effect to any supplement to the Disclosure Letter)Agreement, the Disclosure Letter, the supplements to the Disclosure Letter, or any other certificate or document delivered by the Acquired Companies pursuant to this Agreement, at the time such representation or warranty was made, except for any such Breach waived by the Buyer in writing prior to the Closing or by the acceptance of a supplement to the Disclosure Letter pursuant to Section 5.5, provided that for purposes of this subsection, no effect will be given to Part 3.19 of the Disclosure Letter; (b) any Breach of any representation or warranty made by the Acquired Companies in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Disclosure Letter, other than any such Breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in accepted by the certificate delivered Buyer pursuant to Section 7.2(d)(vi) as having caused 5.5, provided that for purposes of this subsection, no effect will be given to Part 3.19 of the condition specified in Section 7.2 not to be satisfiedDisclosure Letter; (c) any Breach by any Acquired Company of any covenant or obligation of such Acquired Company in this AgreementAgreement (other than a Breach as to which the Acquired Companies provided the Buyer with written notice at least 10 Business Days prior to the Closing); (d) any Breach by Seller Representative of any covenant or obligation of Seller Representative in this Agreement or any NorthStar Clayco Closing Document; (e) any services provided by any Acquired Company prior to the Closing DateDate (other than with respect to a Breach covered by subsections 9.2(c) or (d)); (f) the amount by which Clayco’s consolidated shareholders’ equity as of the Closing is less than $13.1 million, if any; (g) the amount of capital needed to make the Bank “well-capitalized,” (as that term is defined in 12 U.S.C. 1131o(b) and related FDIC regulations) as of the Closing, if any; (h) any matter disclosed in Part 3.6 (NorthStar Loans USA3.7, 3.10 and 3.18(e) of the Disclosure LetterLetter or related to the enforcement of the rights of Clayco or the Bank in connection with trust preferred securities outstanding as of the Closing; (g) any claim by a holder of a NorthStar Option with respect to treatment of such Option or the Option Notice or Option Consideration; or (hi) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Acquired Company (or any Person acting on their behalf) in connection with any of the Contemplated Transactions.; (j) the repurchase by Clayco of any of its Shares prior to the Closing; and (k) notwithstanding any information included in the Disclosure Letter, the Designated Assets and the sale of the Designated Assets by the Bank, including any costs related to (i) providing information requested, or complying with any inquiry, by any regulatory authority and (ii) any claim or legal action related to the Designated Assets as the result of actions taken on or after the Closing Date. To the extent of cash and stock available in the Escrow, all payment of Damages to Buyer shall be made from the Escrow Fund, pro-rata based on the interests of all Clayco

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon by the effectiveness of the NorthStar MergerCompany, the NorthStar stockholdersShareholder ---------------------------------------------------------------------- Trust, and Xxxxxxx. ------------------- The Company (prior to the Closing), the Shareholder Trust, and Xxxxxxx, jointly and severallyseverally (collectively, shall be deemed to the "Seller Indemnifying Persons"), will indemnify and hold harmless BuyerParent, the Acquired CompaniesPurchaser, Surviving Corporation, and their respective Representatives, stockholders, controlling persons, and affiliates (collectively, the “"Purchaser Indemnified Persons”") for, and will pay to the Purchaser Indemnified Persons the amount of, any loss, liability, claim, damage (including incidental and consequential damages), expense (including costs for outside accountants, costs of investigation and defense and reasonable attorneys’ ' fees) or diminution of value, whether or not involving a third-party claim (collectively, “"Damages”"), arising, directly or indirectly, from or in connection with: (a) any Breach breach of any representation or warranty made by Xxxxxxx or the Acquired Companies Shareholder Trust in this Agreement (without giving effect to any supplement to the Disclosure Letter)Agreement, the Disclosure Letter, the supplements to the Disclosure LetterSchedule, or any other certificate or document delivered by the Acquired Companies Company, the Shareholder Trust, or Xxxxxxx pursuant to this Agreement; (b) any Breach of any representation or warranty made breach by the Acquired Companies in this Agreement as if such representation Company, the Shareholder Trust, or warranty were made on and as of the Closing Date without giving effect to any supplement to the Disclosure Letter, other than any such Breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in the certificate delivered pursuant to Section 7.2(d)(vi) as having caused the condition specified in Section 7.2 not to be satisfied; (c) any Breach by any Acquired Company Xxxxxxx of any covenant or obligation of such Acquired Company the Company, the Shareholder Trust, or Xxxxxxx in this Agreement; (dc) the operation of the Business of the Company or the Assets prior to Closing, including, without limitation, any Breach by Seller Representative of any covenant product shipped or obligation of Seller Representative in this Agreement manufactured by, or any NorthStar Closing Document; (e) any services provided by any Acquired by, the Company prior to or on the Closing Date; (fd) any matter disclosed in Part 3.6 (NorthStar Loans USA) of the Disclosure Letter;Schedule 3.15; ------------- (g) any claim by a holder of a NorthStar Option with respect to treatment of such Option or the Option Notice or Option Consideration; or (he) any claim by any Person for brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Acquired Company the Company, Xxxxxxx, or the Shareholder Trust (or any Person acting on their behalf) in connection with any of the Contemplated Transactions; or (f) any liability or obligation with respect to the following matters: (i) any and all income Taxes, sales Taxes or other Taxes for periods prior to or on the Closing Date; (ii) any claim that the operation of the Business of the Company or the Assets prior to the Closing Date violated any Legal Requirement or the rights of any third parties (under contract, in tort or otherwise), including, without limitation, any claims with respect to product liability; (iii) any claim based on or arising from the exercise (or threatened exercise) by any Shareholder of any dissenter's rights under the Georgia Act; (iv) any liability or obligation of the Company, the Shareholder Trust, or any Shareholder, to any Shareholder, or current or former employee, of the Company, with respect to the Business or operations of the Company or the Shareholder Trust prior to or on the Closing Date, including but not limited to any liability or obligation arising from any claim or right to any compensation from, or capital stock (or equivalents) of, the Company, or to any portion of the Merger Consideration; and (v) any liability or obligation to any officer, director or employee of the Company, for indemnification or otherwise, arising out of or in connection with the operation or conduct of the Business of the Company prior to or on the Closing Date, including, without limitation, any indemnification claim arising out of or in connection with any claim, suit, investigation or other matter pending against the Company following the Closing.

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon the effectiveness of the NorthStar MergerSubject to SECTION 11.2(b), each Seller (collectively, the NorthStar stockholders, "Indemnitors") hereby severally and not jointly and severally, shall be deemed to indemnify and hold harmless Buyer, the Acquired Companiesits directors, and their respective Representativesofficers, employees, agents, stockholders, controlling persons, and affiliates Affiliates (collectively, the “"Buyer's Indemnified Persons”") for, and will shall severally and not jointly pay to the Buyer's Indemnified Persons the amount of, Persons: (i) such Seller's Pro Rata Share of any loss, liability, claim, damage (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys’ fees) or diminution of value, whether or not involving a third-party claim (collectively, “all Damages”), arising, directly or indirectly, from or in connection with: (a) as a result of any Breach of any representation or warranty made by the Acquired Companies Company in this Agreement (after giving effect to the Disclosure Letter but without giving effect to any supplement to the Disclosure Letterstandard of materiality), the Disclosure LetterLetter or any other certificate or document delivered by the Company at the Closing pursuant to this Agreement, or any Breach by the supplements to Company of any covenant or obligation of the Disclosure LetterCompany in this Agreement; (ii) any and all Damages, arising, directly or indirectly, as a result of a Breach of any representation or warranty made by such Seller in this Agreement, or any other certificate or document delivered by such Seller at the Acquired Companies Closing pursuant to this Agreement; (b) any Breach of any representation Agreement or warranty made by the Acquired Companies in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Disclosure Letter, other than any such Breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in the certificate delivered pursuant to Section 7.2(d)(vi) as having caused the condition specified in Section 7.2 not to be satisfied; (c) any Breach by any Acquired Company such Seller of any covenant or obligation of such Acquired Company Seller in this Agreement; (d) any Breach by Seller Representative of any covenant or obligation of Seller Representative in this Agreement or any NorthStar Closing Document; (e) any services provided by any Acquired Company prior to the Closing Date; (f) any matter disclosed in Part 3.6 (NorthStar Loans USA) of the Disclosure Letter; (g) any claim by a holder of a NorthStar Option with respect to treatment of such Option or the Option Notice or Option Consideration; or (hiii) any claim by any Person for brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Acquired Company Seller (or any Person acting on their its behalf) in connection with the Contemplated Transactions (but for greater certainty the Buyer has recourse only against the Seller that caused the damages under this SECTION 11.2(a)(iii)); (iv) such Seller's Pro Rata Share of any obligation with respect to Taxes for which Sellers are liable under SECTION 7; or (v) any withholding or other Taxes of Kitchener for which the Buyer is liable as a result of the Contemplated Transactionspurchase of Interests from Kitchener which is a non-resident of Canada (but for greater certainty the Buyer has recourse only against Kitchener under this SECTION 11.2(a)(iii)).

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon Subject to the effectiveness limitations of the NorthStar MergerSection 9.6 hereof, the NorthStar stockholdersSeller and Xxxxxx will indemnify, jointly and severally, shall be deemed to indemnify defend and hold harmless Buyer, the each Acquired Companies, Company and their respective Representativesrepresentatives, stockholders, controlling personsPersons, and affiliates (collectively, collectively the “"Indemnified Persons”") for, and will pay to the Indemnified Persons the amount of, any loss, liabilityLiability, claim, damage (including incidental and consequential damages)damage, expense (including costs of investigation and investigation, defense and reasonable attorneys’ ' fees) or diminution of value, whether or not involving a third-party claim (collectively, “collectively "Damages”"), arising, directly or indirectly, from or in connection with: (a) any 9.2.1 Any Breach of any representation or warranty made by the Acquired Companies Seller, Xxxxxx or Company in this Agreement (without giving effect to any supplement to the Disclosure Letter)Agreement, the Disclosure LetterSchedules, the supplements to the Disclosure LetterSchedules, or any other certificate or document delivered by the Acquired Companies pursuant to this Agreement; (b) any 9.2.2 Any Breach of any representation or warranty made by the Acquired Companies in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Disclosure Letter, other than any such Breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in the certificate delivered pursuant to Section 7.2(d)(vi) as having caused the condition specified in Section 7.2 not to be satisfied; (c) any Breach by any Acquired Company of any covenant or obligation of such Acquired Seller, Company or Xxxxxx in this Agreement; 9.2.3 Any Liability or claim for workers compensation benefits by or for any of the employees or Representatives of any Acquired Company arising from or related to any occurrence during any period prior to or including the Closing Date, except to the extent fully covered and paid for by insurance held by the applicable Acquired Company or Seller or, in the case of claims for benefits for employees located within the states of Ohio and Washington, to the extent that contributions to the respective state agency for such claims for benefits were not as of the Closing Date fully reserved for in the financial statements of the applicable Acquired Company or such claims for benefits were not fully funded with contributions to the respective state agency; 9.2.4 Any Liability or claim for any Tax which relates to any period prior to or including the Closing Date and not reserved in the closing Financial Statements: 9.2.5 Any Environmental, Health and Safety Liabilities, or other Liabilities in any way arising from or allegedly arising from (di) any Breach by Seller Representative Hazardous Activity conducted or allegedly conducted with respect to the Facilities or the operation of any covenant or obligation of Seller Representative in this Agreement or any NorthStar Closing Document; (e) any services provided by any Acquired Company prior to the Closing, (ii) any Hazardous Material that was (a) present on or before the Closing Dateon or at the Facilities, the Environment at the Facilities or any other property now or formerly owned, used or relating in any way to the operations or activities of an Acquired Company; or (b) Released or allegedly Released by Seller, any Acquired Company or any other Person for whose conduct they are or may be held responsible, at any time on or prior to the Closing. Buyer will be entitled to control any Cleanup and related Proceeding; (f) any matter disclosed in Part 3.6 (NorthStar Loans USA) of the Disclosure Letter; (g) any claim by a holder of a NorthStar Option with respect to treatment of such Option or the Option Notice or Option Consideration; or (h) any 9.2.6 Any claim by any Person for brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with Seller, Xxxxxx or any Acquired Company (or any Person acting on their behalf) in connection with any of the Contemplated TransactionsTransactions or any other transaction; 9.2.7 Reliance by Buyer on any books or records of any Acquired Company or the reliance by Buyer on any information furnished by Seller or the Acquired Company or any of the directors or officers of any Acquired Company, to Buyer, to the extent any of such information should prove to be materially incorrect or false; 9.2.8 Any Liability or claim for health, life or other insurance benefits, or any other employee benefits or claims by or for any of the employees or Representatives of any Acquired Company arising from or relating to any occurrence during any period prior to or including the Closing Date, except to the extent fully covered and paid for by insurance held by any Acquired Company, Seller or Xxxxxx, or reflected on the closing Financial Statements; 9.2.9 Any Liability or claim arising from the services, treatment, employment or termination of any employee, agent or Representative of any Acquired Company on or prior to the Closing Date or reflected on the closing Financial Statements; 9.2.10 The failure of Seller to reimburse Buyer for any Delinquent Accounts Receivable pursuant to Section 1.5 of this Agreement; 9.2.11 Any agreements, contracts, negotiations or other dealings by Seller, Xxxxxx or any Acquired Company with any Person concerning the sale, transfer or reorganization of the stock, assets or business of any Acquired Company; 9.2.12 Any Liability arising from any Breach, violation or noncompliance with any Legal Requirement prior to the Closing including, without limitation, any deficiencies described on Schedule 2.15; 9.2.13 Any breach by Seller or Company of the covenants contained within Sections 4.9, 4.10 or 4.11 of this Agreement; and/or 9.2.14 Any Liability arising from or related to any of the Legal Proceedings and Orders described on Schedule 2.17.1 and Schedule 2.23.

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon BY BUYER Subject only to the effectiveness limitations of the NorthStar Merger§ 10.7 and § 10.8, the NorthStar stockholders, jointly and severally, shall be deemed to Buyer will indemnify and hold harmless BuyerParent, the Acquired Companies, Seller and their respective Representatives, stockholders, controlling persons, and affiliates Affiliates (collectively, with Seller, the “"Seller Indemnified Persons”") for, and will pay to the Seller Indemnified Persons the amount of, of any loss, liability, claim, damage (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys’ fees) or diminution of value, whether or not involving a third-party claim (collectively, “Damages”), Damages arising, directly or indirectly, from or in connection with: (a) any Breach of any representation or warranty made by the Acquired Companies Buyer in this Agreement (without giving effect to any supplement to the Disclosure Letter), the Disclosure Letter, the supplements to the Disclosure Letter, or any other certificate or document delivered by the Acquired Companies pursuant to this Agreement; (b) any Breach of any representation or warranty made by the Acquired Companies Buyer in this Agreement as if such representation or warranty were made on and as any of the Closing Date without giving effect to any supplement to the Disclosure Letter, Buyer's Supplemental Agreements (other than any such Breach that is disclosed in a supplement to the Disclosure Letter Supply Agreement, Services Agreement and is License Agreement) except as otherwise expressly identified in the certificate delivered pursuant to Section 7.2(d)(vi) as having caused the condition specified in Section 7.2 not to be satisfiedprovided therein; (c) any Breach by any Acquired Company Buyer of any covenant or obligation of such Acquired Company Buyer in this Agreement or, except as otherwise expressly provided therein, in any of the Buyer's Supplemental Agreements (other than the Supply Agreement, Services Agreement and License Agreement); (d) any Breach failure of Buyer to timely perform the post-Closing obligations under the Assumed Agreements which are to be performed by Seller Representative of any covenant or obligation of Seller Representative in this Agreement or any NorthStar Closing Document; (e) any services provided by any Acquired Company prior Buyer pursuant to the Closing Date; (f) any matter disclosed in Part 3.6 (NorthStar Loans USA) § 2.2 as part of the Disclosure Letter; (g) any claim by a holder of a NorthStar Option with respect to treatment of such Option or the Option Notice or Option ConsiderationAssumed Liabilities; or (he) any claim by any Person for brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Acquired Company Buyer (or any Affiliate of Buyer or other Person acting on their behalfbehalf of Buyer or its Affiliate) in connection with any of the Contemplated Transactions. The remedies provided in this § 10.4 shall be the sole and exclusive basis for a claim for damages based on this Agreement and the Buyer's Supplemental Agreements (other than the Supply Agreement, Services Agreement and License Agreement) by the Seller Indemnified Persons against any of the Buyer Indemnified Persons. Provided, however, notwithstanding the foregoing provisions of this § 10.4, (a) the Seller Indemnified Persons shall not be entitled to recover exemplary, punitive or speculative damages pursuant to this § 10.4 and (b) nothing in the Supply Agreement, Services Agreement or License Agreement shall in any way be construed to limit the rights of any Seller Indemnified Person under this Agreement.

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon BY SELLER ------------------------------------------------ (a) The Company and the effectiveness of the NorthStar Merger, the NorthStar stockholders, jointly and severally, shall be deemed to Principal will indemnify and hold harmless Buyer, the Acquired Companies, Buyer and their its respective Representatives, stockholders, controlling persons, and affiliates (collectively, the “"Indemnified Persons”") for, and will pay to the Indemnified Persons the amount of, any loss, liability, claim, damage (including incidental and consequential damages), or expense (including costs of investigation and defense and 42 reasonable attorneys’ ' fees) or diminution of value), whether or not involving a third-party claim (collectively, “"Damages”"), arisingarising or resulting from, directly or indirectly, from or in connection with: (ai) any Breach of any representation or warranty made by the Acquired Companies Company or the Principal in this Agreement (without giving effect to any supplement to the Disclosure Letter), the Disclosure Letter, the supplements to the Disclosure Letter, or any other certificate or document delivered by the Acquired Companies Company or the Principal pursuant to this Agreement; (b) any Breach of any representation or warranty made by the Acquired Companies in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Disclosure Letter, other than any such Breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in the certificate delivered pursuant to Section 7.2(d)(vi) as having caused the condition specified in Section 7.2 not to be satisfied; (cii) any Breach by any Acquired the Company or the Principal of any covenant or obligation of such Acquired the Company or the Principal in this Agreement or in any Seller's Closing Documents or any other document delivered by the Company or the Principal pursuant to this Agreement; (diii) any regardless of whether it may also constitute a Breach by Seller Representative under Section 10.2 (a)(i) or (ii) above, the operation, management or ownership of any covenant the Company Assets, arising or obligation of Seller Representative in this Agreement related to the period on or any NorthStar Closing Document; (e) any services provided by any Acquired Company prior to the Closing Date (whether known or unknown on the Closing Date;), but excluding those matters expressly assumed by Buyer under the Assumption Agreement. (fb) With respect to the aforesaid indemnification obligation, the parties agree as follows: (i) the Post Closing Escrow Fund has been established to provide a source of funds to satisfy the aforesaid indemnification obligation but the Principal's and the Seller's liability for Damages is not limited to the Post-Closing Escrow Fund, (ii) that the aggregate amount of Damages that Buyer may recover from the Seller and the Principal shall not exceed $3,000,000, and (iii) Buyer shall not be entitled to assert any matter disclosed right to indemnification hereunder against the Seller or the Principal until Buyer's good faith estimate of all Damages for which the Seller and/or the Principal indemnify Buyer hereunder exceeds $20,000 at which time Buyer shall be entitled to the indemnification for all Damages (subject to the limitations described in Part 3.6 subpart (NorthStar Loans USAii) of the Disclosure Letter;above). (gc) Notwithstanding the foregoing, the parties agree that Buyer shall not be entitled to assert, seek or obtain any claim by a holder of a NorthStar Option with respect to treatment of such Option Damages from Seller or the Option Notice Principal resulting from the issuance of any Order against Seller or Option Consideration; or (h) any claim by any Person for brokerage the Principal which prohibits or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Acquired Company (or any Person acting on their behalf) in connection with any of enjoins the Contemplated TransactionsClosing.

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon (a) The Company and other holders of Company Preferred Stock who receive the effectiveness of the NorthStar MergerMerger Consideration ("Company Indemnifying Parties" and, the NorthStar stockholderstogether with Parent, jointly and severally"Indemnifying Parties") will indemnify, shall be deemed to indemnify reimburse, defend and hold harmless BuyerParent, Merger Sub, the Acquired CompaniesSurviving Corporation and to the extent that a third party claim is brought against Parent, and Merger Sub or the Surviving Corporation, their respective Representatives, stockholders, controlling persons, directors and affiliates officers in connection with such claim (collectively, the “"Parent Indemnified Persons”" and, together with Company, "Indemnified Persons") foragainst any and all losses, and will pay to the Indemnified Persons the amount ofliabilities, any lossclaims, liability, claim, damage damages (including incidental and consequential damages), expense (including demands, suits, actions, judgments, assessments, costs and expense, including, without limitation, interest, penalties, attorneys' fees, any and all expenses incurred in investigating, preparing, and defending against any litigation, commenced or threatened, and any claim whatsoever, and any and all amounts paid in settlement of investigation and defense and reasonable attorneys’ fees) any claim or diminution of value, whether or not involving a third-party claim litigation (collectively, “"Damages”"), arisingasserted against, resulting from, imposed upon, or incurred or suffered, directly or indirectly by Parent, directly or indirectly, as a result of or arising from or in connection with: with (ai) any Breach of inaccuracy in, or breach or nonfulfillment of, or noncompliance with any representation representation, warranty, covenant, or warranty obligation made by the Acquired Companies Company Indemnifying Parties in this Agreement (without giving effect to any supplement to the Disclosure Letter)Agreement, the Disclosure Letter, the supplements to the Disclosure LetterSchedule, or any other certificate or document delivered by the Acquired Companies Company pursuant to this Agreement;, (ii) the perfection of dissenter's rights under Delaware Law by any of the stockholders of Company or (iii) any and all claims, liabilities or obligations in connection with options or warrants which remain outstanding following the Closing. Nothing in this Agreement shall be construed as limiting in any way the remedies that may be available to a party in the event of fraud relating to the representations, warranties, agreements or covenants made by any other party in this Agreement. Any inaccuracies in or breaches or nonfulfillment of, or noncompliance with any representations, warranties, covenants or obligations resulting in an adjustment to the number of Indemnity Escrow Shares pursuant to Section 1.11 of this Agreement shall not give rise to an indemnification obligation of the Company Indemnifying Parties under Section 7.2(a)(i) solely to the extent that an item with respect to which an adjustment is made pursuant to Section 1.11 of this Agreement is coextensive with, and identical to, any item of Damage resulting under Section 7.2(a)(i) of this Agreement. (b) any Breach Parent will indemnify, reimburse, defend and hold harmless the holders of any representation or warranty made by the Acquired Companies Company Preferred Stock who vote in this Agreement as if such representation or warranty were made on and as favor of the Closing Date without giving effect to Merger and receive Merger Consideration against any supplement to the Disclosure Letterand all Damages asserted against, other than any resulting from, imposed upon, or incurred or suffered, directly or indirectly by such Breach that is disclosed in holders as a supplement to the Disclosure Letter and is expressly identified in the certificate delivered pursuant to Section 7.2(d)(vi) as having caused the condition specified in Section 7.2 not to be satisfied; (c) any Breach by any Acquired Company result of any covenant or obligation of such Acquired Company in this Agreement; (d) any Breach by Seller Representative of any covenant arising from or obligation of Seller Representative in this Agreement or any NorthStar Closing Document; (e) any services provided by any Acquired Company prior to the Closing Date; (f) any matter disclosed in Part 3.6 (NorthStar Loans USA) of the Disclosure Letter; (g) any claim by a holder of a NorthStar Option with respect to treatment of such Option or the Option Notice or Option Consideration; or (h) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Acquired Company (or any Person acting on their behalf) in connection with any of the Contemplated Transactionsinaccuracy in, or breach or nonfulfillment of, or noncompliance with any representation, warranty, agreement or covenant made by Parent or Merger Sub in this Agreement.

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon Subject to the effectiveness of terms set forth in this Article XI, including without limitation, Sections 11.3 and 11.4(b), and solely to the NorthStar Mergerextent set forth in this Article XI, from and after the Effective Time, the NorthStar stockholders, Securityholders (other than holders of Appraisal Rights) shall severally and not jointly and severally, shall be deemed to indemnify and hold harmless Buyerthe Parent, the Acquired CompaniesMerger Sub, and their respective Representatives, stockholders, controlling persons, persons and affiliates Affiliates (collectively, the “Parent Indemnified Persons”) for, and will pay to the Indemnified Persons the amount of, for any loss, liability, claim, damage (including incidental and consequential damages)damage, demand, obligation, Tax, fee, charge, penalty, cost or expense (including reasonable costs of preparation, filing, investigation and defense defense, and the reasonable fees, disbursements and expenses of attorneys’ fees) or diminution of value, accountants and other professional advisors), whether or not involving a third-third party claim (collectively, “Damages”), arising, directly or indirectly, from from, relating to or in connection withany way sustained or incurred by reason of: (a) any Breach breach of any representation or warranty made by the Acquired Companies Company in this Agreement, the Company Disclosure Schedule, any of the Statements or other secretaries’ or officers’ certificates delivered by the Company pursuant to this Agreement (and for purposes of determining the amounts of any Damages, but not for determining whether a breach of a representation or warranty has occurred, without giving effect reference to any supplement to the Disclosure Letterqualifications herein or therein by materiality or words of similar import), the Disclosure Letter, the supplements to the Disclosure Letter, or any other certificate or document delivered by the Acquired Companies pursuant to this Agreement; (b) any Breach of any representation or warranty made breach by the Acquired Companies in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Disclosure Letter, other than any such Breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in the certificate delivered pursuant to Section 7.2(d)(vi) as having caused the condition specified in Section 7.2 not to be satisfied; (c) any Breach by any Acquired Company of any covenant or obligation of such Acquired the Company in this Agreement; (c) any violation by the Company, any of its Subsidiaries or any of their respective Representatives of HIPAA or HITECH or any regulations promulgated under the Administrative Simplification provisions of HIPAA occurring prior to the Closing; (d) any Breach demand for appraisal rights that is properly perfected by Seller Representative one or more Company Stockholders in accordance with Section 262 of the DGCL (for the avoidance of doubt, the amount of any covenant or obligation such Damages shall equal the costs of Seller Representative in this Agreement or any NorthStar Closing Documentdefending such appraisal proceeding and the product determined by multiplying the number of Appraisal Shares by the amount by which the consideration determined to be due with respect to such Appraisal Shares exceeds the portion of the Merger Consideration that otherwise would have been payable to such Company Stockholder with respect to such Appraisal Shares); (e) any services provided liability by any Acquired the Company prior to the Closing Date; (f) any matter disclosed in Part 3.6 (NorthStar Loans USA) of the Disclosure Letter; (g) any claim by a holder of a NorthStar Option with respect to treatment of such Option or the Option Notice or Option Consideration; or (h) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with the Company or any Acquired Company of its Subsidiaries (or any Person acting on their behalf) in connection with any of the Contemplated Transactionstransactions contemplated hereby, any Interim Auditing Fees and any other Transaction Fees not otherwise included in the Transaction Fees Statement and paid at or prior to Closing; (f) except to the extent already specifically taken into account in determining the Closing Working Capital, (A) all Taxes (or the non-payment thereof) of the Company or any of its Subsidiaries relating to or arising from any and all Taxable periods ending on or before the Closing Date or the portion through the end of the Closing Date for any Taxable period that includes (but does not end on) the Closing Date (such Taxes being “Pre-Closing Taxes” and such Taxable periods or portions thereof being “Pre-Closing Tax Periods,” respectively), (B) all Pre-Closing Taxes of any member of an affiliated, consolidated, combined, or unitary group of which the Company or any of its Subsidiaries (or any predecessor of any of the foregoing) is or was a member that are attributable to a Pre-Closing Tax Period, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or foreign Legal Requirements, (C) any and all Pre-Closing Taxes of any Person (other than the Company or any of its Subsidiaries) imposed on the Company or any of its Subsidiaries as a transferee or successor, by contract or pursuant to any law, rule or regulation, which Taxes relate to an event or transaction occurring during a Pre-Closing Tax Period, (D) all Tax liabilities of the Company or any of its Subsidiaries that are attributable to the Company’s or any of its Subsidiaries’ employment-related classification for purposes of federal and state wage withholding and FICA, FUTA and Medicare for Persons who performed services for the Company, any of its Subsidiaries or any of their respective Affiliates and (E) all Transfer Taxes imposed by Legal Requirements upon the Company or any of the Securityholders in connection with the transfer, conversion or cancellation of capital stock; (g) any and all litigation or other claims against the Company or any of its Subsidiaries arising from or related to circumstances or events prior to Closing; (h) any fraud with respect to this Agreement, the Company Disclosure Schedule, any of the Statements or any of the secretaries’ or officers’ certificates delivered pursuant to this Agreement on the part of the Company; (i) any and all infringement claims made by third parties which relate to any Intellectual Property of the Company or any of its Subsidiaries; (j) except as otherwise specifically reflected and accounted for in the Closing Working Capital, the existence of any liability or obligation in any way arising from or relating to (A) any contribution owed by the Company or any of its Subsidiaries to any Benefit Plans (B) any withdrawal by the Company or any of its Subsidiaries, from any multiemployer plan, (C) any accrued pension benefits for service with the Company or any of its Subsidiaries, (D) any other liability or obligation arising under or in connection with any Benefit Plans maintained by the Company or any of its Subsidiaries, or in which any employees of the Company or any of its Subsidiaries, participate or under which the Company, has any obligation, or (E) any and all severance payments arising from any obligations undertaken by the Company or any of its Subsidiaries, to their respective employees; (k) any liability of the Company or any of its Subsidiaries for any Company Indebtedness existing prior to or at Closing not otherwise included in the Company Indebtedness Statement and paid at or prior to Closing; (l) any demand, claim, suit, action, cause of action, proceeding or assessment brought by any current or former holder (or any Person claiming to be a current or former holder) of any shares of capital stock of the Company or any of its Subsidiaries or warrants or options to purchase any of the foregoing or any Phantom Options in connection with this Agreement or the transactions contemplated hereby and any amount paid to any director of officer of the Company or any of its Subsidiaries pursuant to any rights to indemnification held thereby; and (m) any inaccuracy in the Allocation Schedule as delivered at or immediately prior to Closing.

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon the effectiveness of the NorthStar Merger, the NorthStar stockholders, jointly and severally, shall be deemed to BY SELLER - Seller will -------------------------------------------------- indemnify and hold harmless Buyer, Buyer and the Acquired Companies, and their respective Representatives, stockholders, controlling persons, and affiliates (collectively, the “Indemnified Persons”) for, and will pay to the Indemnified Persons the amount of, Company for any loss, liability, claim, damage cost, damage, deficiency (including incidental and consequential excluding any claim by the Buyer or the Company for punitive or exemplary damages), ) or expense (including costs of investigation and defense and reasonable attorneys’ ' fees) or diminution of value), whether or not involving a third-third party claim (collectively, “"Damages”"), arising, directly or indirectly, arising from or in connection with: (a) any Breach breach of any representation or warranty made by the Acquired Companies Seller in this Agreement or in any certificate delivered hereunder (without after giving effect to any supplement to the Disclosure LetterUpdated Schedules), the Disclosure Letter, the supplements to the Disclosure Letter, or any other certificate or document delivered by the Acquired Companies pursuant to this Agreement; (b) any Breach of any representation or warranty made breach by the Acquired Companies in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Disclosure Letter, other than any such Breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in the certificate delivered pursuant to Section 7.2(d)(vi) as having caused the condition specified in Section 7.2 not to be satisfied; (c) any Breach by any Acquired Company of any covenant or obligation of such Acquired Company in this Agreement; (d) any Breach by Seller Representative of any covenant or obligation of Seller Representative in this Agreement or any NorthStar Closing DocumentAgreement; (ec) any services provided by anti-trust litigation set forth on Schedule 10.1(c) and any Acquired Company other anti-trust or unfair competition claims, proceedings, litigation or investigations relating to Periods prior to the Closing DateClosing; (f) any matter disclosed in Part 3.6 (NorthStar Loans USA) of the Disclosure Letter; (g) any claim by a holder of a NorthStar Option with respect to treatment of such Option or the Option Notice or Option Consideration; or (hd) any claim by any Person for brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Acquired Guarantor, Seller or the Company (or any Person acting on their behalfbehalf of any of them) in connection with any of the Contemplated Transactions; (e) any violations of or obligations arising under any Environmental Law with respect to the properties, Facilities or operations of the Seller (with respect to the Company's business), the Guarantor (with respect to the Company's business) or the Company, whether or not constituting a breach of any representation or warranty hereunder and whether or not disclosed to Buyer prior to the Closing Date (whether on Schedule 3.17 or otherwise) or identified by Buyer or its agents or representatives through their investigations prior to the Closing Date, to the extent such violations or obligations arise from or relate to (i) the operation of the Company's business on or prior to the Closing Date (including without limitation any transportation, disposal or Release of Hazardous Materials at any facility or location) or (ii) the disposal or Release of Hazardous Materials at the Facilities on or prior to the Closing Date; provided, however, that Seller shall be required to indemnify Buyer and Company only to the extent such damages exceed the $129,000 reserve for environmental matters regardless of whether such reserve was intended to cover the liability for which Buyer seeks indemnification on the June Balance Sheet; (f) any liability with respect to the withdrawal or partial withdrawal from a multi-employer plan prior to the Closing Date as defined in Section 4001 of ERISA; (g) the shut down of the San Jose, California manufacturing facility previously operated by the Company or a predecessor thereof regardless of any reserve therefor in any Financial Statement; and (h) any matters disclosed on Schedule 3.9 (Undisclosed Liabilities) or Schedule 3.13 (Legal Proceedings), whether or not such matters are also disclosed elsewhere, unless, and only to the extent that, such matter is clearly identified on such Schedule as being exempted from this Section 10. 1. The remedies provided in this Section 10.1 will be the exclusive remedy to Buyer for damages arising under this Agreement for breaches of representations and warranties, liabilities for which Seller indemnifies Buyer as set forth in Section 10.1, pre-closing covenants, and any certificates delivered in connection with its Agreement and the Contemplated Transactions. However, buyer may pursue any remedy under law or at equity for breach of any post-closing covenants, fraud or breach of the Transition Services Agreement or any other agreement entered into in connection herewith.

INDEMNIFICATION AND PAYMENT OF DAMAGES. Upon the effectiveness of the NorthStar Merger, the NorthStar stockholdersClayco shareholders, jointly and severally, shall be deemed to indemnify and hold harmless Buyer, the Acquired Companies, and their respective Representatives, stockholders, controlling persons, and affiliates (collectively, the “Indemnified Persons”) for, and will pay to the Indemnified Persons the amount of, any loss, liability, claim, damage (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys’ fees) or diminution of value, whether or not involving a third-party claim (collectively, “Damages”), arising, directly or indirectly, from or in connection with: (a) any Breach of any representation or warranty made by the Acquired Companies in this Agreement (without giving effect to any supplement to the Disclosure Letter)Agreement, the Disclosure Letter, the supplements to the Disclosure Letter, or any other certificate or document delivered by the Acquired Companies pursuant to this Agreement, at the time such representation or warranty was made, except for any such Breach waived by the Buyer in writing prior to the Closing, pursuant to the acceptance of a supplement to the Disclosure Letter pursuant to Section 5.5 or otherwise; (b) any Breach of any representation or warranty made by the Acquired Companies in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Disclosure Letter, other than any such Breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in accepted by the certificate delivered Buyer pursuant to Section 7.2(d)(vi) as having caused the condition specified in Section 7.2 not to be satisfied5.5; (c) any Breach by any Acquired Company of any covenant or obligation of such Acquired Company in this AgreementAgreement (other than a Breach as to which the Acquired Companies provided the Buyer with written notice at least 10 Business Days prior to the Closing); (d) any Breach by Seller Representative of any covenant or obligation of Seller Representative in this Agreement or any NorthStar Clayco Closing DocumentDocument (other than a Breach as to which the Acquired Companies or the Seller Representative provided the Buyer with written notice at least 10 Business Days prior to the Closing); (e) any services provided by any Acquired Company prior to the Closing DateDate (other than with respect to a Breach covered by subsections 9.2(c) or (d)); (f) the amount by which Clayco’s consolidated shareholders’ equity as of the Closing is less than $13.1 million, if any; (g) the amount of capital needed to make the Bank “well-capitalized,” (as that term is defined in 12 U.S.C. 1131o(b) and related FDIC regulations) as of the Closing, if any; (h) any matter disclosed in Part 3.6 (NorthStar Loans USA3.7, 3.10 and 3.18(e) of the Disclosure LetterLetter or related to the enforcement of the rights of Clayco or the Bank in connection with trust preferred securities outstanding as of the Closing; (g) any claim by a holder of a NorthStar Option with respect to treatment of such Option or the Option Notice or Option Consideration; or (hi) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Acquired Company (or any Person acting on their behalf) in connection with any of the Contemplated Transactions.; (j) any “Especially Reserved Credit” as defined in the Escrow Agreement which the Seller Representative purchases in accordance with the Escrow Agreement; and (k) the repurchase by Clayco of any of its Shares prior to the Closing. To the extent of cash and stock available in the Escrow, all payment of Damages to Buyer shall be made from the Escrow Fund, pro-rata based on the interests of all Clayco shareholders therein. Damages related to a breach of warranty of Section 3.3 regarding ownership of Shares and the absence of Encumbrances thereon shall be paid first from the portion of the Escrow Fund attributable to the individual Clayco shareholder to whom the breach