Common use of Indemnification by Acquiror Clause in Contracts

Indemnification by Acquiror. (a) Subject to the limitations set forth in this Section 12, from and after the Effective Time, Acquiror shall protect, defend, indemnify and hold harmless Transferor, Transferor's Affiliates, and each of their respective officers, directors, employees, representatives and agents (each of the foregoing Persons is hereinafter referred to individually as a "Transferor Indemnified Person" and collectively as "Transferor Indemnified Persons") from and against any and all Damages, that any of the Indemnified Persons incurs or reasonably anticipates incurring by reason of or in connection with any claim, demand, action or cause of action alleging misrepresentation, breach of, or default in connection with, any of the representations, warranties, covenants or agreements of the Acquiror contained in this Agreement, including any exhibits or schedules attached hereto, known to Transferor prior to the Survival Termination Date. (b) Notwithstanding the foregoing, Transferor may not receive any compensation from Acquiror under this Section 12 unless and until a certificate signed by an officer of Transferor (a "Transferor Officer's Certificate") (i) identifying Damages related to an individual claim in excess of $50,000 and in an aggregate amount in excess of $150,000 and (ii) specifying in reasonable detail the individual items of Damages included in the amount so stated, the date each such item was paid or incurred (or the basis for such anticipated liability), and the nature of the misrepresentation, breach of warranty or claim to which such item is related, has been delivered to Acquiror and such amount is determined pursuant to this Section 12 to be payable, in which case Transferor shall receive cash in an amount equal in value to the dollar amount of such Damages in excess of the Basket. In determining the amount of any Damages attributable to a breach, any materiality standard contained in a representation, warranty or covenant of Acquiror shall be disregarded. In no event shall the amount of Damages required to be indemnified by Acquiror under the provisions of this Section 12.3 exceed $7.5 million.

Indemnification by Acquiror. (a) Subject After the Closing and subject to the limitations set forth in this Section 12, from and after the Effective TimeARTICLE X, Acquiror shall protectindemnify, defend, indemnify defend and hold harmless TransferorParent, Transferor's Affiliatesthe Seller and their respective Affiliates and their respective Representatives (collectively, the “Parent Indemnified Persons”) against, and each of their respective officersreimburse any Parent Indemnified Party for, directorsall Losses that such Parent Indemnified Party may at any time suffer or incur, employees, representatives and agents or become subject to: (each of the foregoing Persons is hereinafter referred to individually i) as a "Transferor Indemnified Person" and collectively result of or in connection with the inaccuracy or breach of any representation or warranty made by Acquiror in this Agreement; (ii) as "Transferor Indemnified Persons") from and against any and all Damages, that any of the Indemnified Persons incurs or reasonably anticipates incurring by reason a result of or in connection with any claimbreach or failure by Acquiror to perform any of its covenants or obligations contained in this Agreement including, demandwithout limitation, action Section 6.11; (iii) to the extent relating to, arising out of or cause of action alleging misrepresentation, breach of, or default in connection with, with any of the representationsBusiness, warrantiesthe Transferred Subsidiaries or any of their respective post-Closing Affiliates (including any predecessor of any thereof), covenants or agreements any business, property, asset, liability, operation, activity or Transferred Subsidiary of any of the Acquiror contained in this Agreementforegoing, whether heretofore, currently or hereafter owned or conducted (as the case may be (including any exhibits or schedules attached hereto, known to Transferor prior Losses to the Survival Termination Dateextent relating to, arising out of or in connection with Parent Indemnified Persons seeking indemnification hereunder)) except to the extent such Losses constitute Losses for which Parent is required to indemnify any Acquiror Indemnified Party pursuant to Section 10.02(a); or (iv) to the extent relating to or arising out of any Assumed Liabilities. (b) Notwithstanding anything to the foregoingcontrary contained herein, Transferor may Acquiror shall not receive be required to indemnify, defend or hold harmless any compensation from Parent Indemnified Party against, or reimburse any Parent Indemnified Party for, any Losses pursuant to Section 10.03(a)(i) (other than Losses arising out of the inaccuracy or breach of any Acquiror under this Section 12 unless and until a certificate signed by an officer of Transferor (a "Transferor Officer's Certificate") Specified Representations which shall not be subject to or count against the De Minimis Threshold, Deductible or the Cap) (i) identifying Damages related with respect to an individual any claim in excess of $50,000 and in an aggregate amount in excess of $150,000 and (ii) specifying in reasonable detail the individual items of Damages included in the amount so stated, the date each such item was paid or incurred (or series of related claims arising from the basis for same underlying facts, events or circumstances) unless such anticipated liability)claim (or series of related claims arising from the same underlying facts, and the nature of the misrepresentation, breach of warranty events or claim to which such item is related, has been delivered to Acquiror and such amount is determined pursuant to this Section 12 to be payable, in which case Transferor shall receive cash in an amount equal in value to the dollar amount of such Damages circumstances) involves Losses in excess of the Basket. In determining De Minimis Threshold (nor shall any such claim or series of related claims that does not meet the De Minimis Threshold be applied to or considered for purposes of calculating the aggregate amount of any Damages attributable Parent Indemnified Persons’ Losses for which Acquiror has responsibility under clause (ii) of this Section 10.03(b) below); (ii) until the aggregate amount of Parent Indemnified Persons’ Losses for which Parent Indemnified Persons are finally determined to a breachbe otherwise entitled to indemnification under Section 10.03(a)(i) exceeds two percent (2%) of the Purchase Price, any materiality standard contained in a representation, warranty or covenant of after which Acquiror shall be disregarded. In no event shall the amount of Damages required obligated for all Parent Indemnified Persons’ Losses for which Parent Indemnified Persons are finally determined to be indemnified by Acquiror otherwise entitled to indemnification under Section 10.03(a)(i) and not only Losses that are in excess of the provisions Deductible, but only if such excess Losses arise with respect to any claim (or series of related claims arising from the same underlying facts, events or circumstances) that involves Losses in excess of the De Minimis Threshold; and (iii) in a cumulative aggregate amount exceeding the Cap. For purposes of determining whether the threshold set forth in clause (iii) of this Section 12.3 exceed $7.5 million10.03(b) has been met or exceeded, any amount paid by Acquiror for Losses pursuant to Section 10.03(a)(i), other than any Losses in respect of the inaccuracy or breach of any Acquiror Specified Representations, shall be taken into account. Notwithstanding anything to the contrary contained herein, Acquiror shall not be required to indemnify, defend or hold harmless any Parent Indemnified Party against, or reimburse any Parent Indemnified Party for, any Losses pursuant to Section 10.03(a)(i) (including, for this purpose, in respect of the inaccuracy or breach of any Acquiror Specified Representations) in a cumulative aggregate amount exceeding the Purchase Price.

Indemnification by Acquiror. (a) Subject to the limitations set forth in this Section 12, from and after the Effective TimeArticle VIII, Acquiror shall protect, defend, indemnify and hold harmless Transferor, Transferor's the Effective Time Holders and their Affiliates, and each of their other respective officers, directors, members, agents, employees, representatives successors and agents assigns, including direct and indirect holders of ownership interests in an Effective Time Holder (each of the foregoing Persons is hereinafter being referred to individually as a "Transferor “Company Indemnified Person" ” and collectively as "Transferor the “Company Indemnified Persons"”) from and against any and all Indemnifiable Damages, that whether or not due to a third-party claim, arising out of, or resulting from: (i) any failure of any representation or warranty made by Acquiror, Sub, Surviving Sub or Surviving Corporation in this Agreement, or in any other agreement contemplated hereby to which Acquiror, Sub, Surviving Sub or Surviving Corporation is or will be a party to be true and correct as of the Indemnified Persons incurs Closing Date (except in the case of representations and warranties which by their terms speak only as of a specific date or reasonably anticipates incurring dates, which representations and warranties shall be true and correct as of such date); (ii) any failure of any certification, representation or warranty made by reason Acquiror, Sub, Surviving Sub or Surviving Corporation in any certificate delivered to the Company pursuant to any provision of this Agreement, or any other agreement contemplated hereby to which Acquiror, Sub, Surviving Sub or Surviving Corporation is or will be a party, to be true and correct as of the date such certificate is delivered to the Company; and (iii) any breach of or default in connection with any claim, demand, action or cause of action alleging misrepresentation, breach of, or default in connection with, any of the representations, warranties, covenants or agreements of the Acquiror contained made by Acquiror, Sub, Surviving Sub or Surviving Corporation in this Agreement, including in any exhibits other agreement contemplated hereby to which the Acquiror, Sub, Surviving Sub or schedules attached hereto, known to Transferor prior to the Survival Termination DateSurviving Corporation is or will be a party. (b) Notwithstanding The obligation of the foregoing, Transferor may not receive any compensation from Acquiror to indemnify the Company Indemnified Persons under this Section 12 unless Article VIII shall be subject to each of the following principles, limitations and until a certificate signed by an officer of Transferor (a "Transferor Officer's Certificate")qualifications: (i) identifying No claim for the recovery of Indemnifiable Damages related pursuant to an individual claim Section 8.3(a)(i) or (ii) may be asserted by any Company Indemnified Person against the Acquiror after such representations and warranties shall have expired pursuant to Section 8.1; provided, however, that claims first asserted in excess writing with specificity prior to such expiration shall survive until the resolution of $50,000 and in an aggregate amount in excess such claims. (ii) The Company Indemnified Persons shall be entitled to recovery of $150,000 Indemnifiable Damages pursuant to Section 8.3(a)(i) and (ii) specifying in reasonable detail only if the individual items of Indemnifiable Damages included in the amount so stated, the date each such item was paid or incurred (or the basis for such anticipated liability), and the nature of the misrepresentation, breach of warranty or claim to which such item is related, has been delivered to Acquiror and such amount is determined pursuant to this Section 12 to be payableCompany Indemnified Persons exceeds the Basket Amount, in which case Transferor event the Company Indemnified Persons shall receive cash be entitled to recover all of their Indemnifiable Damages; provided, however, that the Company Indemnified Persons shall be entitled to recovery of all Indemnifiable Damages arising from any breach of the agreements contained in an amount equal Section 1.2 or Section 5.18 (Tax Matters), any breach of a representation set forth in value Section 3.12 or the failure the pay the Merger Consideration in accordance with the terms of this Agreement without regard to the dollar amount Basket Amount. (iii) Materiality standards or qualifications in any representation, warranty or covenant shall only be taken into account in determining whether a breach of or default in connection with such Damages representation, warranty or covenant (or failure of any representation or warranty to be true and correct) exists, and shall not be taken into account in excess of the Basket. In determining the amount of any Indemnifiable Damages attributable with respect to such breach, default or failure to be true and correct. (iv) With the exception of (i) claims based upon fraud or intentional misrepresentation, and (ii) equitable claims, indemnification under Article VIII of this Agreement shall be the sole and exclusive remedy of the Effective Time Holders with respect to this Agreement. The foregoing notwithstanding, nothing in this Agreement shall affect the Effective Time Holders’ rights to equitable remedies to the extent available. (v) The maximum aggregate amount of indemnification and Indemnifiable Damages payable by Acquiror pursuant to Section 8.3(a) (other than with respect to fraud or intentional misrepresentations, or a breach by Acquiror or Surviving Corporation of any obligation under Section 1.2 or Section 5.18 hereof or a breach of a representation set forth in Section 3.12 hereof, or with respect to the obligations to pay the Merger Consideration in accordance with this Agreement) shall be limited to an amount not to exceed an amount equal to 10% of the Merger Consideration. (vi) Indemnifiable Damages shall not include, and the Acquiror shall not be liable for, any punitive, incidental, consequential, special, indirect or similar damages (except to the extent paid by a Company Indemnified Person to a breachthird party in connection with a third party action), including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any materiality standard contained in a representationdamages based on any type of multiple. In addition, warranty or covenant for purposes of Acquiror computing Indemnifiable Damages, there shall be disregarded. In no event shall deducted an amount equal to the amount of Damages required any insurance proceeds, indemnification payments, contribution payments or similar reimbursements, and any Tax benefit received or reasonably expected to be indemnified received by Acquiror under any Company Indemnified Person on account of such Indemnifiable Damages or the provisions of this Section 12.3 exceed $7.5 millioncircumstances giving rise thereto.

Indemnification by Acquiror. (a) Subject to the limitations set forth in this Section 12, from and after the Effective Time, Acquiror shall protect, defend, indemnify and hold harmless Transferor, Transferor's each of Seller and Parent and their respective Affiliates, officers, directors and each representatives (the “Seller Indemnified Parties”) against any Damages to the extent arising from or resulting from (a) any inaccuracy in any representation or the breach of any warranty made by Acquiror in this Agreement or in any certificate or Schedule required to be delivered pursuant hereto, (b) the breach by Acquiror of any covenant or agreement to be performed by it hereunder, (c) the operations and any liabilities of the Business, any Acquired Company or any Subsidiary of any Acquired Company after the Closing (other than any Damages resulting from any matter for which Seller or Parent is required to indemnify the Acquiror Indemnified Parties pursuant to Section 9.3), including any Assumed Liabilities and/or (d) any amounts payable or incurred by Parent or Seller or any of their respective officers, directors, employees, representatives Subsidiaries (1) upon any drawing of a Letter of Credit in respect of an Assumed Liability and agents (each of the foregoing Persons is hereinafter referred to individually as a "Transferor Indemnified Person" and collectively as "Transferor Indemnified Persons"2) from and against any and all Damages, that any of the Indemnified Persons incurs or reasonably anticipates incurring by reason of or ordinary course fees in connection with any claim, demand, action or cause maintaining such Letters of action alleging misrepresentation, breach of, or default in connection with, any of the representations, warranties, covenants or agreements of the Acquiror contained in this Agreement, including any exhibits or schedules attached hereto, known to Transferor prior to the Survival Termination DateCredit until their current expiration date. (b) Notwithstanding No Seller Indemnified Party shall be entitled to recover any amount relating to any matter arising under one provision of this Agreement (including the foregoingAgreed Principles) to the extent such Seller Indemnified Party (or other Seller Indemnified Parties) has already recovered such amount with respect to the same matter pursuant to that or other provisions of this Agreement (including the Agreed Principles). (c) Subject to the terms of Section 9.5(d) below, Transferor the maximum aggregate amount of Damages that may not receive any compensation be recovered from Acquiror under on an aggregate basis by the Seller Indemnified Parties pursuant to this Section 12 unless and until a certificate signed by Agreement shall be an officer amount equal to the Final Consideration. (d) Notwithstanding anything to the contrary set forth in this Article IX, nothing herein shall limit the liability of Transferor (a "Transferor Officer's Certificate") Acquiror (i) identifying Damages related to an individual claim in excess for actual fraud on the part of $50,000 and in an aggregate amount in excess of $150,000 Acquiror or its Affiliates and (ii) specifying in reasonable detail the individual items with respect to Assumed Liabilities. For avoidance of Damages included in the amount so stated, the date each such item was paid or incurred (or the basis for such anticipated liability), and the nature of the misrepresentation, breach of warranty or claim to which such item is related, has been delivered to Acquiror and such amount is determined pursuant to this Section 12 to be payable, in which case Transferor shall receive cash in an amount equal in value to the dollar amount of such Damages in excess of the Basket. In determining the amount of any Damages attributable to a breachdoubt, any materiality standard contained limitations of liability applicable to breaches of representations and warranties expressly set forth in a representation, warranty this Article IX shall in no way limit Acquiror’s liability or covenant of Acquiror shall be disregarded. In no event shall the amount of Damages required indemnification obligations with respect to be indemnified by Acquiror under the provisions of this Section 12.3 exceed $7.5 millionAssumed Liabilities.

Indemnification by Acquiror. (a) Subject to the limitations set forth in this Section 12, from and after the Effective Time, Acquiror shall protect, defend, indemnify and hold harmless Transferor, Transferor's Affiliates, and each of their respective officers, directors, employees, representatives and agents (each of the foregoing Persons is hereinafter referred to individually as a "Transferor Indemnified Person" and collectively as "Transferor Indemnified Persons") from and against any and all Damages, that any of the Indemnified Persons incurs or reasonably anticipates incurring by reason of or in connection with any claim, demand, action or cause of action alleging misrepresentation, breach of, or default in connection with, any of the representations, warranties, covenants or agreements of the Acquiror contained in this Agreement, including any exhibits or schedules attached hereto, known to Transferor prior to the Survival Termination Date. (b) Notwithstanding the foregoing, Transferor may not receive any compensation from Acquiror under this Section 12 unless and until a certificate signed by an officer of Transferor (a "Transferor Officer's Certificate") (i) identifying Damages related to an individual claim in excess of $50,000 and in an aggregate amount in excess of $150,000 and (ii) specifying in reasonable detail the individual items of Damages included in the amount so stated, the date each such item was paid or incurred (or the basis for such anticipated liability), and the nature of the misrepresentation, breach of warranty or claim to which such item is related, has been delivered to Acquiror and such amount is determined pursuant to this Section 12 to be payable, in which case Transferor shall receive cash in an amount equal in value to the dollar amount of such Damages in excess of the Basket. In determining the amount of any Damages attributable to a breach, any materiality standard contained in a representation, warranty or covenant of Acquiror shall be disregarded. In no event shall the amount of Damages required to be indemnified by Acquiror under the provisions of this Section 12.3 exceed $7.5 million4.1 below, Acquiror agrees to indemnify and hold harmless each Investor, and each Investor’s officers, employees, affiliates, directors, partners, members, attorneys and agents, and each Person, if any, who controls an Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “Investor Indemnified Party”), from and against any expenses, losses, judgments, claims, damages or liabilities, whether joint or several, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by Acquiror of the Securities Act or any rule or regulation promulgated thereunder applicable to Acquiror and relating to action or inaction required of Acquiror in connection with any such registration (provided, however, that the indemnity agreement contained in this Section 4.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of Acquiror, such consent not to be unreasonably withheld, delayed or conditioned); and Acquiror shall promptly reimburse the Investor Indemnified Party for any legal and any other expenses reasonably incurred by such Investor Indemnified Party in connection with investigating and defending any such expense, loss, judgment, claim, damage, liability or action; provided, however, that Acquiror will not be liable in any such case to the extent that any such expense, loss, claim, damage or liability arises out of or is based upon any untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to Acquiror, in writing, by such selling holder or Investor Indemnified Party expressly for use therein. Acquiror also shall indemnify any Underwriter of the Registrable Securities, their officers, affiliates, directors, partners, members and agents and each Person who controls such Underwriter on substantially the same basis as that of the indemnification provided above in this Section 4.1.

Indemnification by Acquiror. (a) Subject Acquiror agrees to the limitations set forth in this Section 12, from and after the Effective Time, Acquiror shall protect, defend, indemnify and hold harmless Transferoreach Holder included in any registration of Registrable Securities pursuant to this Agreement, Transferor's Affiliatesits trustees, officers and directors and each Person who controls such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and each any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of their respective officersor based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, directorsany Prospectus or preliminary Prospectus, employees, representatives and agents (each or any amendment or supplement to any of the foregoing Persons is hereinafter referred to individually as a "Transferor Indemnified Person" and collectively as "Transferor Indemnified Persons") from and against any and all Damages, that any of the Indemnified Persons incurs or reasonably anticipates incurring by reason of or in connection with any claim, demand, action or cause of action alleging misrepresentation, breach of, or default in connection with, any of the representations, warranties, covenants or agreements of the Acquiror contained in this Agreement, including any exhibits or schedules attached hereto, known to Transferor prior to the Survival Termination Date. (b) Notwithstanding the foregoing, Transferor may not receive any compensation from Acquiror under this Section 12 unless and until a certificate signed by an officer of Transferor (a "Transferor Officer's Certificate") (i) identifying Damages related to an individual claim in excess of $50,000 and in an aggregate amount in excess of $150,000 and (ii) specifying in reasonable detail the individual items of Damages included in the amount so stated, the date each such item was paid any omission or incurred (or the basis for such anticipated liability), and the nature of the misrepresentation, breach of warranty or claim alleged omission to which such item is related, has been delivered to Acquiror and such amount is determined pursuant to this Section 12 to be payable, in which case Transferor shall receive cash in an amount equal in value to the dollar amount of such Damages in excess of the Basket. In determining the amount of any Damages attributable to state therein a breach, any materiality standard contained in a representation, warranty or covenant of Acquiror shall be disregarded. In no event shall the amount of Damages material fact required to be indemnified stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to Acquiror by such Holder or its counsel expressly for use therein. In connection with an underwritten offering, Acquiror under will indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Holders. Notwithstanding the foregoing provisions of this Section 12.3 exceed $7.5 million10(a), Acquiror will not be liable to any Holder, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such Holder or underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under the indemnity agreement in this Section 10(a) for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of such Holder's or other Person's failure to send or deliver a copy of a final Prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of the Registrable Securities to such Person if such statement or omission was corrected in such final Prospectus and Acquiror has previously furnished copies thereof to such Holder in accordance with this Agreement.

Indemnification by Acquiror. (a) Subject Anything in this Purchase Agreement to the limitations set forth contrary notwithstanding, the Acquiror hereby agrees to indemnify, defend and hold the Company Stockholders harmless against all Losses resulting from, imposed upon or incurred by any Company Stockholder, directly or indirectly, as a result of any of the following: (i) any inaccuracy or breach of any representation or warranty of the Acquiror given or made by the Acquiror in this Section 12Purchase Agreement or in any certificate document or agreement delivered by or on behalf of the Acquiror pursuant hereto; (ii) any failure by the Acquiror to perform or comply with any covenant or agreement contained in this Purchase Agreement or in any certificate, document or agreement delivered by or on behalf of the Acquiror pursuant hereto; and (iii) the conduct and operation of the business of the Company from and after the Effective Time, Acquiror shall protect, defend, indemnify and hold harmless Transferor, Transferor's Affiliates, and each of their respective officers, directors, employees, representatives and agents (each of the foregoing Persons is hereinafter referred to individually as a "Transferor Indemnified Person" and collectively as "Transferor Indemnified Persons") from and against any and all Damages, that any of the Indemnified Persons incurs or reasonably anticipates incurring by reason of or in connection with any claim, demand, action or cause of action alleging misrepresentation, breach of, or default in connection with, any of the representations, warranties, covenants or agreements of the Acquiror contained in this Agreement, including any exhibits or schedules attached hereto, known to Transferor prior to the Survival Termination Closing Date. (b) Notwithstanding In the foregoingevent, Transferor may not receive any compensation from Acquiror under time to time, Company Stockholder determines that it has suffered a Loss for which indemnification is available pursuant to this Section 12 unless and until a certificate signed by an officer of Transferor (a "Transferor Officer's Certificate")Article IX, the following procedure shall be followed: (i) identifying Damages related Stockholder Representative shall give written notice of any such claim (a "Stockholder Loss Notice") to an individual claim in excess of $50,000 and in an aggregate amount in excess of $150,000 and (ii) Acquiror specifying in reasonable detail the individual items amount of Damages included in the amount so stated, claimed Loss (the date each such item was paid or incurred (or "Stockholder Loss Amount") and the basis for such anticipated liability)Loss. (ii) Within thirty (30) days after delivery of a Stockholder Loss Notice, and Acquiror shall provide to Stockholder Representative a written response (a "Acquiror Response Notice") in which the nature Acquiror will (i) agree that indemnification of the misrepresentationfull Stockholder Loss Amount is appropriate, breach of warranty or claim to which such item is related, has been delivered to Acquiror and such amount is determined pursuant to this Section 12 to be payable, in which case Transferor shall receive cash (ii) agree that indemnification in an amount equal in value to the dollar amount of such Damages in excess part, but not all, of the BasketStockholder Loss Amount (the "Stockholder Agreed Amount") may be made or (iii) contest making any indemnification hereunder. In determining Acquiror may contest the amount Stockholder Loss Notice upon a good faith belief that all or such portion of any Damages attributable the claims thereunder does not constitute a Loss for which the Company Stockholder is entitled to a breachindemnification under this Article IX. If no Acquiror Response Notice is delivered by Acquiror within such thirty (30) day period, any materiality standard contained in a representation, warranty or covenant of Acquiror shall be disregarded. In no event shall deemed to have agreed that indemnification in the full Stockholder Loss Amount is warranted. (iii) If Acquiror in the Acquiror Response Notice contests an amount of Damages required the indemnification equal to all or any part of the Stockholder Loss Amount (the "Acquiror Contested Amount"), the Acquiror and the Stockholder Representative shall negotiate in good faith to resolve any such dispute. If any such dispute involving claims of less than $1,000,000 cannot be resolved within forty-five (45) days after the receipt by the Acquiror of the Acquiror Response Notice, the Acquiror Indemnified Person and the Stockholder Representative shall submit the matter to the Boston, MA office of the American Arbitration Association ("AAA") for binding arbitration to be indemnified conducted in accordance with the AAA commercial arbitration rules in effect at the time such matter is submitted. If any such matter is submitted to the AAA as provided herein, (A) each of the Acquiror and the Stockholder Representative will furnish to AAA such workpapers and other documents and information as AAA may request and will be afforded the opportunity to present to AAA any material relevant to the matter, (B) the determination by AAA, as set forth in a notice delivered to the Acquiror under and the provisions of this Section 12.3 exceed $7.5 millionStockholder Representative by AAA, will be binding and conclusive on such parties.

Indemnification by Acquiror. (a) Subject After the Closing and subject to Article VII and the limitations set forth in other provisions of this Section 12, from and after the Effective TimeArticle X, Acquiror shall protect, defend, indemnify and hold harmless TransferorSellers and their Affiliates (but not the Companies) and Representatives (collectively, Transferor's Affiliatesthe “Seller Indemnified Parties”) against, and each of their respective officersreimburse any Seller Indemnified Party for, directorsall Losses that such Seller Indemnified Party may at any time suffer or incur, employeesor become subject to, representatives and agents (each of the foregoing Persons is hereinafter referred to individually as a "Transferor Indemnified Person" and collectively as "Transferor Indemnified Persons"result of: (i) from and against the inaccuracy or breach of any and all Damages, that representation or warranty made by Acquiror in this Agreement or in any certificate delivered by Acquiror at the Closing; or (ii) any breach or failure by Acquiror to perform any of the Indemnified Persons incurs or reasonably anticipates incurring by reason of or in connection with any claim, demand, action or cause of action alleging misrepresentation, breach of, or default in connection with, any of the representations, warranties, its covenants or agreements of the Acquiror obligations contained in this Agreement, including any exhibits or schedules attached hereto, known to Transferor prior to the Survival Termination Date. (b) Notwithstanding any other provision to the foregoingcontrary, Transferor may Acquiror shall not receive be required to indemnify or hold harmless any compensation from Seller Indemnified Party against, or reimburse any Seller Indemnified Party for, any Losses pursuant to Section 10.03(a)(i) (other than Losses arising as a result of the inaccuracy or breach of any representation or warranty made by Acquiror under this Section 12 unless in Sections 4.01 and until a certificate signed by an officer of Transferor (a "Transferor Officer's Certificate") 4.10) (i) identifying Damages with respect to any claim (or series of related to an individual claims arising from the same underlying facts, events or circumstances) unless such claim (or series of related claims arising from the same underlying facts, events or circumstances) involves Losses in excess of $50,000 and in an 75,000 (nor shall any such item that does not meet the $75,000 threshold be applied to or considered for purposes of calculating the aggregate amount in excess of $150,000 the Seller Indemnified Parties’ Losses for which Acquiror has responsibility under clause (ii) below) and (ii) specifying in reasonable detail until the individual items aggregate amount of Damages included the Seller Indemnified Parties’ Losses exceeds one and one-half percent (1.5%) of the Purchase Price, after which Acquiror shall be obligated for all Losses of the Seller Indemnified Parties that in the amount so stated, the date each such item was paid or incurred (or the basis for such anticipated liability), and the nature of the misrepresentation, breach of warranty or claim to which such item is related, has been delivered to Acquiror and such amount is determined pursuant to this Section 12 to be payable, in which case Transferor shall receive cash in an amount equal in value to the dollar amount of such Damages aggregate are in excess of such amount. The cumulative aggregate indemnification obligation of Acquiror under Section 10.03(a)(i) shall in no event exceed twelve and one-half percent (12.5%) of the Basket. In determining Purchase Price (other than in respect of Losses arising solely as a result of (A) the amount inaccuracy or breach of any Damages attributable to a breachrepresentation or warranty made by Acquiror in Sections 4.01 and 4.10, any materiality standard contained for which such indemnification obligation shall in a representation, warranty or covenant of Acquiror shall be disregarded. In no event shall exceed 100% of the amount of Damages required to be indemnified by Acquiror under Purchase Price in the provisions of this Section 12.3 exceed $7.5 millionaggregate or (B) fraud).

Indemnification by Acquiror. (ai) Subject With respect to the limitations set forth in this Section 12, from and after the Effective Time, Acquiror shall protect, defend, indemnify and hold harmless Transferor, Transferor's Affiliates, and each of their respective officers, directors, employees, representatives and agents (each of the foregoing Persons is hereinafter referred a registration pursuant to individually as a "Transferor Indemnified Person" and collectively as "Transferor Indemnified Persons") from and against any and all Damages, that any of the Indemnified Persons incurs or reasonably anticipates incurring by reason of or in connection with any claim, demand, action or cause of action alleging misrepresentation, breach of, or default in connection with, any of the representations, warranties, covenants or agreements of the Acquiror contained in this Agreement, including any exhibits or schedules attached heretoAcquiror agrees to indemnify, known to Transferor prior to the Survival Termination Dateextent permitted by law, each Acquiror Common Stock Recipient, its officers, directors and each person who controls (within the meaning of the Securities Act) such Acquiror Common Stock Recipient (each, an “Acquiror Common Stock Indemnified Party”) against all Damages caused by any untrue or alleged untrue statement of material fact contained in the Registration Statement, or any related prospectus or preliminary prospectus (or any amendment thereof or supplement thereto) or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, except insofar as the same are caused by or contained in any information furnished in writing to Acquiror by any one or more Acquiror Common Stock Recipient for use therein. (bii) Notwithstanding the foregoing, Transferor may not receive any compensation from Each Acquiror under this Section 12 unless and until a certificate signed by an officer of Transferor (a "Transferor Officer's Certificate") Common Stock Indemnified Party hereunder shall (i) identifying Damages related give prompt written notice to an individual Acquiror of any third-party claim in excess of $50,000 and in an aggregate amount in excess of $150,000 with respect to which it seeks indemnification and (ii) specifying permit Acquiror to assume the defense of such third-party claim with counsel reasonably satisfactory to the Acquiror Common Stock Indemnified Party. Failure to so notify the Acquiror shall not relieve it from any liability that it may have to an Acquiror Common Stock Indemnified Party except to the extent that the Acquiror is materially and adversely prejudiced thereby. Acquiror shall not be subject to any liability for any settlement made by the Acquiror Common Stock Indemnified Party without its consent. Acquiror shall not be obligated to pay the fees and expenses of more than one counsel (in reasonable detail addition to one local counsel) for all Acquiror Common Stock Indemnified Parties indemnified hereunder by such Acquiror with respect to such third-party claim (and all other claims arising out of the individual items of Damages included same circumstances), unless in the amount so statedreasonable judgment of any Acquiror Common Stock Indemnified Party, the date each there may be one or more legal or equitable defenses available to such item was paid or incurred (or the basis for Acquiror Common Stock Indemnified Party which conflict with those available to another Acquiror Common Stock Indemnified Party with respect to such anticipated liability), and the nature of the misrepresentation, breach of warranty or claim to which such item is related, has been delivered to Acquiror and such amount is determined pursuant to this Section 12 to be payablethird-party claim, in which case Transferor each such Acquiror Common Stock Indemnified Party shall receive cash in be entitled to use separate counsel. Acquiror shall not settle a claim against an amount equal in value to Acquiror Common Stock Indemnified Party without such party’s prior written consent, unless such settlement provides for the dollar amount unconditional release of such Damages in excess of the Basket. In determining the amount of party and does not impose any Damages attributable equitable remedies with respect to a breach, any materiality standard contained in a representation, warranty or covenant of Acquiror shall be disregarded. In no event shall the amount of Damages required to be indemnified by Acquiror under the provisions of this Section 12.3 exceed $7.5 millionsuch party.

Indemnification by Acquiror. (a) Subject to the limitations set forth in this Section 12, from and after the Effective Time, Acquiror shall protect, defend, indemnify and hold harmless Transferor, Transferor's Affiliates, and each of their respective officers, directors, employees, representatives and agents (each of the foregoing Persons is hereinafter referred to individually as a "Transferor Indemnified Person" and collectively as "Transferor Indemnified Persons") from and against any and all Damages, that any of the Indemnified Persons incurs or reasonably anticipates incurring by reason of or in connection with any claim, demand, action or cause of action alleging misrepresentation, breach of, or default in connection with, any of the representations, warranties, covenants or agreements of the Acquiror contained in this Agreement, including any exhibits or schedules attached hereto, known to Transferor prior to the Survival Termination Date. (b) Notwithstanding the foregoing, Transferor may not receive any compensation from Acquiror under this Section 12 unless and until a certificate signed by an officer of Transferor (a "Transferor Officer's Certificate") (i) identifying Damages related to an individual claim in excess of $50,000 and in an aggregate amount in excess of $150,000 and (ii) specifying in reasonable detail the individual items of Damages included in the amount so stated, the date each such item was paid or incurred (or the basis for such anticipated liability), and the nature of the misrepresentation, breach of warranty or claim to which such item is related, has been delivered to Acquiror and such amount is determined pursuant to this Section 12 to be payable, in which case Transferor shall receive cash in an amount equal in value to the dollar amount of such Damages in excess of the Basket. In determining the amount of any Damages attributable to a breach, any materiality standard contained in a representation, warranty or covenant of Acquiror shall be disregarded. In no event shall the amount of Damages required to be indemnified by Acquiror under the provisions of this Section 12.3 exceed $7.5 million4.1 below, Acquiror agrees to indemnify and hold harmless each Holder, and each Holder’s officers, employees, affiliates, directors, partners, members, attorneys and agents, and each Person, if any, who controls a Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “Holder Indemnified Party”), from and against any expenses, losses, judgments, claims, actions, damages or liabilities (collectively, “Losses”), whether joint or several, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by Acquiror of the Securities Act or any rule or regulation promulgated thereunder applicable to Acquiror and relating to action or inaction required of Acquiror in connection with any such registration (provided, however, that the indemnity agreement contained in this Section 4.1 shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of Acquiror, such consent not to be unreasonably withheld, delayed or conditioned); and Acquiror shall promptly reimburse the Holder Indemnified Party for any legal and any other expenses reasonably incurred by such Holder Indemnified Party in connection with investigating and defending any such Loss; provided, however, that Acquiror will not be liable in any such case to the extent that any such Loss arises out of or is based upon any untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to Acquiror, in writing, by such selling holder or Holder Indemnified Party expressly for use therein. Acquiror also shall indemnify any Underwriter of the Registrable Securities, their officers, affiliates, directors, partners, members and agents and each Person who controls such Underwriter on substantially the same basis as that of the indemnification provided above in this Section 4.1.

Indemnification by Acquiror. (a) Subject to the limitations set forth in this Section 128.10, from and after the Effective Time, Acquiror shall protect, defend, indemnify and hold harmless Transferor, Transferor's Affiliates, and each the former stockholders of their respective officers, directors, employees, representatives and agents Target (each of the foregoing Persons is hereinafter referred to individually as a "Transferor Indemnified Person" and collectively as "Transferor “Target Indemnified Persons"”) from and against any and all Damages, that any of the Target Indemnified Persons incurs or reasonably anticipates incurring by reason of or in connection with any claim, demand, action or cause of action alleging misrepresentation, breach of, or default in connection with, any of the representations, warranties, covenants or agreements of the Acquiror or Merger Sub contained in this Agreement or any closing certificates furnished by Acquiror or Merger Sub pursuant to Section 6.02(b) of this Agreement, including any exhibits or schedules attached hereto, known to Transferor prior to the Survival Termination Date. (b) Notwithstanding the foregoing, Transferor may not receive any compensation from Acquiror under this Section 12 unless and until a certificate signed by an officer of Transferor (a "Transferor Officer's Certificate") (i) identifying Damages related to an individual claim in excess of $50,000 and in an aggregate amount in excess of $150,000 and (ii) specifying in reasonable detail the individual items of Damages included in the amount so stated, the date each such item was paid or incurred (or the basis for such anticipated liability), and the nature Certificate of Merger, which becomes known to the misrepresentationStockholders’ Representative or the Target Indemnified Person during the twelve (12) month period following the Effective Time and for which the Stockholders’ Representative or Target Indemnified Person delivers a timely written notice to Acquiror. Anything to in this Agreement to the contrary notwithstanding, breach of warranty or claim Acquiror shall have no obligations to which such item is related, has been delivered to Acquiror and such amount is determined indemnify any Target Indemnified Person pursuant to this Section 12 8.10 for any such breach of a representation and warranty of Acquiror or Merger Sub if at the time such representation or warranty was made by Acquiror, Target knew of such breach by Acquiror and failed to be payable, disclose such breach in which case Transferor shall receive cash writing to Acquiror. Notwithstanding anything in an amount equal in value this Agreement to the dollar amount contrary, the recovery of Damages by any Target Indemnified Person shall be subject to the objection of the Acquiror and the subsequent arbitration of the claim in the manner provided for in the Escrow Agreement, and no recovery or payment of such Damages in excess of the Basket. In determining the amount of any Damages attributable to a breach, any materiality standard contained in a representation, warranty or covenant of Acquiror shall be disregarded. In no event shall the amount of Damages required to be indemnified by Acquiror under the provisions of this Section 12.3 exceed $7.5 millionmade other than in accordance therewith.