Common use of Indemnification by Parent Clause in Contracts

Indemnification by Parent. Subject to the terms and conditions of this Article 9, including the limitations set forth in Section 9.6 below, Parent shall indemnify and hold harmless each Shareholder and their respective heirs, legal representatives, assigns and agents (the “Shareholder Indemnified Persons”) from and against any and all Indemnified Losses incurred or to be incurred by any of them, resulting from or arising out of: (a) the breach of any agreement or covenant of Parent or its Affiliates contained in Article 6 of this Agreement; (b) any Third Party Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder of the Company attributable to disclosed or undisclosed liabilities that arise out of the conduct or activities of the Business after the Effective Time; provided that for purposes of this Section 9.3(b), any such Third Party Loss or Losses shall be, and Parent shall only be required to indemnify the Shareholder Indemnified Parties to the extent of the amount of any such Third Party Loss or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party with respect to such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds; (c) Liability of the Parent or its subsidiaries (exclusive of the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of Parent in connection with this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses relating to any investment banker, broker, lawyer or accountant.

Indemnification by Parent. (a) Subject to the other terms and conditions of this Article 9, including the limitations set forth in Section 9.6 belowAgreement, Parent and MergerCo shall indemnify indemnify, defend and hold harmless each Shareholder harmless, the Securityholders and their respective heirsofficers, legal representatives, assigns directors and agents members of their boards (the each a “Shareholder Securityholder Indemnified PersonsParty”) from and against to the extent of any and all Indemnified Losses losses asserted against, imposed upon or incurred or to be incurred sustained by any of themthe Securityholder Indemnified Parties, resulting from or as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: (ai) the breach of any agreement representation or covenant warranty of Parent or its Affiliates MergerCo contained in Article 6 herein; or (ii) any breach of this Agreement;any covenant or agreement of Parent or MergerCo contained herein. (b) If any Third Securityholder Indemnified Party Losses asserted against any Shareholder solely in seeks indemnification under this Section 9.3 such Person’s capacity as a shareholder party shall give written notice to Parent of the Company attributable facts and circumstances giving rise to disclosed the claim. In that regard, if any Proceeding shall be brought or undisclosed liabilities that arise out asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Parent of the conduct or activities same in writing, specifying in reasonable detail (if known) the basis of such claim and the Business after the Effective Time; provided that for purposes of this Section 9.3(b), any such Third Party Loss or Losses shall befacts pertaining thereto, and Parent shall only be required to indemnify the Shareholder Indemnified Parties Parent, if it so elects by written notice to the extent of Securityholder Indemnified Party, shall assume and control the amount of any such Third Party Loss or Losses, after defense thereof (and shall consult with the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Indemnified Losses, less Party shall be at the reasonable expenses incurred to obtain such proceeds; (c) Liability expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent or its subsidiaries in writing, (exclusive ii) there exists a conflict of interest between the interests of the Company Securityholder Indemnified Party and its SubsidiariesParent, or (iii) the Parent has failed to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of Parent Securityholder Indemnified Parties in connection with this Agreement and any one Proceeding or separate but similar or related Proceedings in the transactions contemplated hereby, including same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable for any settlement of any Proceeding that is effected without limitation, fees and expenses relating to any investment banker, broker, lawyer or accountantthe written consent of Parent.

Indemnification by Parent. Subject (a) After the Closing and subject to the terms and conditions of this Article 9, including the limitations set forth in Section 9.6 belowARTICLE X, Parent shall indemnify indemnify, defend and hold harmless each Shareholder Acquiror, its Affiliates and their respective heirsRepresentatives (collectively, legal representatives, assigns and agents (the “Shareholder Acquiror Indemnified PersonsParties”) from against, and against reimburse any and Acquiror Indemnified Party for, all Losses that such Acquiror Indemnified Losses incurred Party may at any time suffer or incur, or become subject to: (i) as a result of or in connection with the inaccuracy or breach of any representation or warranty made by Parent in this Agreement; 50 (ii) as a result of or in connection with any breach or failure by Parent to be incurred by perform any of them, resulting from its covenants or obligations contained in this Agreement; or (iii) to the extent relating to or arising out of: (a) the breach of any agreement or covenant of Parent or its Affiliates contained in Article 6 of this Agreement;Excluded Liabilities. (b) Notwithstanding anything to the contrary contained herein, Parent shall not be required to indemnify, defend or hold harmless any Third Acquiror Indemnified Party against, or reimburse any Acquiror Indemnified Party for, any Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder of the Company attributable pursuant to disclosed or undisclosed liabilities that arise Section 10.02(a)(i) (other than Losses arising out of the conduct inaccuracy or activities breach of any Parent Specified Representations, which shall not be subject to or count against the Business after De Minimis Threshold, Deductible or Cap) (i) with respect to any claim (or series of related claims arising from the Effective Time; provided 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 $250,000 (the “De Minimis Threshold”) (nor shall any such claim or series of related claims that does not exceed the De Minimis Threshold be applied to or considered for purposes of calculating the aggregate amount of Acquiror Indemnified Parties’ Losses for which Parent has responsibility under clause (ii) of this Section 9.3(b10.02(b) below); (ii) until the aggregate amount of Acquiror Indemnified Parties’ Losses for which Acquiror Indemnified Parties are finally determined to be otherwise entitled to indemnification under Section 10.02(a)(i) exceeds two percent (2%) of the Purchase Price (the “Deductible”), any such Third Party Loss or Losses shall be, and after which Parent shall be obligated for all Acquiror Indemnified Parties’ Losses for which Acquiror Indemnified Parties are finally determined to be otherwise entitled to indemnification under Section 10.02(a)(i) that are in excess of two percent (2%) of the Purchase Price, 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, together with the Excess Title Exception Amount (if any), exceeding five percent (5%) of the Purchase Price (the “Cap”). Notwithstanding anything to the contrary contained herein, Parent shall not be required to indemnify indemnify, defend or hold harmless any Acquiror Indemnified Party against, or reimburse any Acquiror Indemnified Party for, any Losses pursuant to Section 10.02(a)(i) (including, for this purpose, in respect of the Shareholder Indemnified Parties inaccuracy or breach of any Parent Specified Representations) in a cumulative aggregate amount exceeding the Purchase Price. Notwithstanding anything to the extent of the amount of contrary contained herein, Parent shall not be required to indemnify, defend or hold harmless any such Third Party Loss or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Acquiror Indemnified Party against, or reimburse any Acquiror Indemnified Party for, (i) any Losses relating to a title exception, it being understood that the adjustments referred to in Section 3.04(c) shall be the sole and exclusive remedy of Acquiror with respect to such Indemnified Losses, less the reasonable expenses incurred matters or (ii) any Losses pursuant to obtain such proceeds; (cSection 10.02(a)(i) Liability in respect of the Parent inaccuracy or its subsidiaries (exclusive breach of the Company representation and its Subsidiarieswarranty contained in Section 4.07(e) for Taxes for any to the extent such Losses arise in a taxable period ending or portion thereof beginning on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of Parent in connection with this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses relating to any investment banker, broker, lawyer or accountantClosing Date.

Indemnification by Parent. (a) Subject to the terms and conditions of this Article 9, including the limitations set forth in Section 9.6 belowthis Article VIII, for a period beginning at the Effective Time, and ending at 11:59 p.m. Pacific Time on the first anniversary of the Closing Date, Parent shall indemnify and hold harmless each Shareholder and the Shareholders, together with their respective heirsofficers, legal representativesdirectors, assigns agents and agents employees, and each person, if any, who controls or may control any Shareholder within the meaning of the Securities Act (the hereinafter referred to individually as an “Shareholder Indemnified Person” and collectively as “Shareholder Indemnified Persons”) from and against any against: Any and all Indemnified Losses losses, costs, damages, obligations, liabilities, fines, penalties, judgments, and expenses (including, without limitation, reasonable legal and other professional fees, costs and expenses incurred in investigating, preparing, defending against or to be incurred by prosecuting any claim, demand, suit, action, cause of action, arbitration, investigation or proceeding) arising out of any material misrepresentation or material breach of, or default in connection with, any of themthe representations, resulting from warranties, covenants and agreements given or arising out of: (a) made by the breach of any agreement or covenant of Parent or its Affiliates contained Merger Sub in Article 6 of this Agreement;Agreement or any Ancillary Agreement or any exhibit or schedule to this Agreement or any Ancillary Agreement (collectively, “Shareholder Damages”). (b) any Third Party Losses asserted against any Shareholder solely All indemnification obligations of Parent shall be satisfied in such Person’s capacity as a shareholder cash, by payment to the Shareholders’ Agent for further distribution by the Shareholders’ Agent to the Shareholders, or at the election of the Company attributable Shareholders’ Agent to disclosed or undisclosed liabilities that arise out the Escrow Agent for further distribution by the Escrow Agent to the Shareholders. Notwithstanding any instruction of the conduct or activities Shareholders’ Agent to deliver such indemnification proceeds to the Escrow Agent, such indemnification proceeds shall not become a part of the Business after Escrow Fund, but shall be delivered solely for further distribution the Effective Time; provided that for purposes of this Section 9.3(b), any such Third Party Loss or Losses shall be, and Parent shall only be required to indemnify the Shareholder Indemnified Parties to the extent of the amount of any such Third Party Loss or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party with respect to such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds;Shareholders. (c) Liability Notwithstanding anything to the contrary in this Agreement or any other Ancillary Agreement, the Shareholders’ Agent shall have the authority to exercise on behalf of the Parent Shareholders all applicable remedies available at law or its subsidiaries (exclusive of the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; andin equity. (d) transaction costs and expenses incurred by or on behalf The parties agree that there shall not be any multiple recovery for any Shareholder Damages. Except in the case of fraud, in no event shall the aggregate liability of Parent in connection with under this Agreement and Section 8.11 exceed $3,000,000. This Section 8.11 represents the transactions contemplated hereby, including without limitation, fees and expenses sole remedy for any claim by any Shareholder Indemnified Person relating to Shareholder Damages. No claim may be presented relating to Shareholder Damages after the first anniversary of the Closing Date. Parent shall not be liable on any investment bankerindividual claim for Shareholder Damages, broker, lawyer or accountantunless the individual claim exceeds $50,000.

Indemnification by Parent. Subject to Effective as of the terms and conditions of this Article 9, including the limitations set forth in Section 9.6 belowClosing, Parent shall indemnify hereby indemnifies Buyer and TTSI and agrees to hold each harmless each Shareholder and their respective heirs, legal representatives, assigns and agents (the “Shareholder Indemnified Persons”) from and against any and all Indemnified Losses incurred or to be incurred by any of them, resulting from or Damages arising out of: (a) the of or pertaining to any breach of any agreement or covenant covenants of the Parent or its Affiliates contained in this Exhibit D. ADDITIONAL MATTERS RELATING TO PRODUCT LIABILITY ISSUES Parent and Buyer acknowledge and agree that each has a continuing interest in ensuring that claims involving alleged product defects and product safety are handled by TTSI after the Closing in a manner that minimizes liability of the parties and otherwise protects the parties' interests. This Exhibit E sets forth certain additional procedures, covenants and agreements relating to product liability and related matters in respect of products sold and services provided by TTSI or the TTS Business that, among other things, are intended to enhance the parties' ability to achieve these objectives. E.01 With respect to liabilities and obligations relating to claims of manufacturing or design defects, the parties have agreed that certain of these liabilities and obligations will constitute Assumed Liabilities for which TTSI will be responsible and certain of these liabilities and obligations will constitute Excluded Liabilities for which Seller Companies will be responsible. Because (i) it is likely that TTSI may receive the initial notice or claim with respect to liabilities and obligations that ultimately prove to be Seller Companies' responsibility and vice versa and (ii) in many cases it is critical to the defense of such claims that products and the location in which the alleged incident occurs be inspected as soon as practicable, each of Parent, TTSI and Buyer agree to give immediate notice to the other party in the event that they receive notice of a claim involving or potentially involving claims of manufacturing or design defects where the party first receiving such notice reasonably believes that the responsibility for the liability or obligation, if any, will be that of the other party or if there is any doubt as to which party ultimately will be responsible for any related liabilities or obligations. Each of Parent, TTSI and Buyer also agree with respect to each claim of manufacturing or design defects that they will perform a prompt, diligent and continuing investigation to determine whether the claim is an Assumed Liability or an Excluded Liability, and agree to give immediate notice to the other parties at any time if the investigation reveals that the responsibility for the liability or obligation, if any, will be that of the other party if there is any doubt as to which party ultimately will be responsible for any related liabilities or obligations. Each of Parent, TTSI and Buyer agree that the party providing such notice will thereafter cooperate with the other party to permit the other party to conduct its own investigation, and the party providing such notice will provide to the other party reports on the status of the claim and subject to the provisions of Article 6 X an opportunity to participate in the defense of the claim, at its own cost and expense. To expedite the review of these issues and ensure that both parties' rights and defenses are preserved, Parent, TTSI and Buyer shall provide such notice as follows: The Black & Deckxx Xxxporation 701 Xxxx Xxxxx Xxxx Xxxxxx, Xxxxxxxx 00000 Attention: Product Liability Counsel if to Buyer, or TTSI after Closing: True Temper Sports, Inc. 8275 Xxxxxxxxxx Xxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxxx 00000 Attention: President E.02 To the extent that either Parent, TTSI or Buyer (or any of their directors, officers, advisors, attorneys, accountants, employees, insurers or agents) conducts an investigation or other inquiry into any events or circumstances that lead to a claim of manufacturing or design defects in respect of a product or product line generally or a specific claim or allegation and the results of such investigation or inquiry relate to or otherwise affect the liabilities or obligations of the other party hereunder, Parent, TTSI or Buyer, as the case may be, agree to share any information obtained as a result of the investigation or inquiry, in each case subject to the express provisions of Section 7.07 of this Agreement;. (b) any Third Party Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder E.03 To assist each of the Company attributable parties to disclosed this Agreement with the defense of claims involving allegations of manufacturing or undisclosed liabilities that arise out of the conduct or activities of the Business after the Effective Time; provided that for purposes of this Section 9.3(b), any such Third Party Loss or Losses shall be, design defects and Parent shall only be required to indemnify the Shareholder Indemnified Parties to the extent of the amount of any such Third Party Loss or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party with respect to such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds; (c) Liability of the Parent or its subsidiaries (exclusive of the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of Parent in connection compliance with each parties' respective legal obligations under this Agreement and otherwise, Parent, TTSI and Buyer each agree from time to time to designate individuals within their respective organizations as an "Engineering/Safety Assurance Liaison" and a "Claims Liaison" for the transactions contemplated herebypurpose of coordinating the defense of claims involving products sold and services provided by TTSI or the TTS Business. The initial individuals serving in these capacities shall be designated in writing by Parent, including without limitationTTSI and Buyer at Closing and, fees thereafter, may be changed from time to time by notice to the other party. E.04 To assist each of the parties to this Agreement with the defense of claims involving allegations of manufacturing or design defects and expenses relating with compliance with each parties' respective legal obligations under this Agreement and otherwise, Parent, TTSI and Buyer each agree from time to any investment banker, broker, lawyer or accountanttime to provide the other party access to all information as provided in Section 5.04 and Section 6.

Indemnification by Parent. Subject to After the terms Effective Time, and conditions for a period of this Article 9, including six (6) years after the limitations set forth in Section 9.6 belowEffective Time, Parent shall indemnify and hold harmless each Shareholder and their respective heirs, legal representatives, assigns and agents (the “Shareholder Indemnified Persons”) from and against any and all Indemnified Losses incurred or to be incurred by any of them, resulting from or arising out of: (a) the breach of any agreement or covenant of Parent or its Affiliates contained in Article 6 of this Agreement; (b) any Third Party Losses asserted against any Shareholder solely in such Person’s capacity person serving as a shareholder of the Company attributable to disclosed or undisclosed liabilities that arise out of the conduct or activities of the Business after the Effective Time; provided that for purposes of this Section 9.3(b), any such Third Party Loss or Losses shall be, and Parent shall only be required to indemnify the Shareholder Indemnified Parties to the extent of the amount of any such Third Party Loss or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party with respect to such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds; (c) Liability of the Parent or its subsidiaries (exclusive director of the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes each person serving as an officer of Parent or its subsidiaries (including the Company and its subsidiaries) after with respect to actions taken or omitted to be taken prior to the Effective Time, to the extent such person is entitled to indemnification under the Certificate of Incorporation and Bylaws of the Company as in effect immediately prior to the Effective Time, except as limited by Delaware law. Each party entitled to indemnification under this Section 6.3 (the “Director Indemnified Party”) shall give notice to Parent promptly after such Director Indemnified Party has actual knowledge of any claim as to which indemnification may be sought, and Parent shall, upon written notice given reasonably promptly following receipt of notice from the Director Indemnified Party of such claim, be entitled to assume the defense thereof at its expense with counsel chosen by Parent and reasonably satisfactory to the Director Indemnified Party; and (d) transaction costs provided that the Director Indemnified Party may participate in such defense at such party’s expense; and expenses incurred by or on behalf provided further that if counsel reasonably determines that its representation of both Parent in connection with this Agreement and the transactions contemplated herebyDirector Indemnified Party would present such counsel with a conflict of interest or if Parent fails to assume the defense of such claim, including without limitation, the Director Indemnified Party may employ separate counsel to represent and defend it in any such action and Parent shall pay the reasonable fees and expenses relating disbursements of such counsel. Parent shall not be required to pay the reasonable fees and disbursements of more than one separate law firm in any investment bankerjurisdiction in any single action or proceeding. The failure of any Director Indemnified Party to give notice as provided herein shall not relieve Parent of its obligations under this Section 6.3, brokerprovided that if such failure materially increases the amount of indemnification that Parent is obligated to pay under this Section 6.3, lawyer the amount of indemnification which the Director Indemnified Party shall be entitled to receive shall be reduced to an amount which the Director Indemnified Person would have been entitled to receive had such notice been timely given. Parent, in the defense of any such claim or accountantlitigation, shall not, except with the consent of each Director Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof, the giving by the claimant or plaintiff to such Director Indemnified Party of a release from all liability in respect to such claim or litigation.

Indemnification by Parent. Subject to the terms and conditions of this Article 9, including the limitations set forth in Section 9.6 belowthis Article X, from and after the Effective Time, Parent shall indemnify and hold harmless and indemnify each Shareholder and their respective heirs, legal representatives, assigns and agents (of the “Shareholder Indemnified Persons”) Stockholder Indemnitees from and against against, and shall compensate and reimburse each of the Stockholder Indemnitees for, any and all Indemnified Losses incurred Damages which are suffered or to be incurred by any of them, resulting the Stockholder Indemnitees or to which any of the Stockholder Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and which arise from or arising out as a result of: , or are connected with: (a) the any misrepresentation in, inaccuracy in or breach of any agreement representation or covenant of Parent warranty set forth in this Agreement or its Affiliates contained any agreement, certificate or instrument furnished or to be furnished to the Company or the Stockholders' Agent pursuant hereto or in Article 6 of this Agreement; connection with the transactions contemplated hereby; (b) any Third Party Losses asserted against breach of any Shareholder solely covenant or obligation of Parent or Merger Sub (including the covenants set forth in such Person’s capacity as a shareholder Article V); or (c) any Legal Proceeding relating to any inaccuracy or breach of the Company attributable type referred to disclosed in clause (a) or undisclosed liabilities that arise out (b) above (including any Legal Proceeding commenced by any Stockholder Indemnitee for the purpose of the conduct or activities enforcing any of the Business after the Effective Time; provided that for purposes its rights under this Article X). Any amount of Damages required to be indemnified pursuant to this Section 9.3(b)10.3 shall be deemed, to the extent permitted by law, an adjustment in the Merger Consideration. Any claims for indemnification pursuant to this Section 10.3 shall be made by the Stockholders' Agent on behalf of any such Third Party Loss or Losses shall beStockholder Indemnitee. The Stockholder Indemnitees may not make any claim for indemnification pursuant to Section 10.3(a) (except for claims with respect to Sections 4.1, 4.2(a) and Parent 4.4) until the aggregate Damages incurred by the Stockholder Indemnitees for which indemnification may be sought exceeds $750,000, at which point the Stockholder Indemnitees shall only be required entitled to indemnify the Shareholder Indemnified Parties to the extent of seek indemnification for the amount of any by which such Third Party Loss or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party with respect to such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds; (c) Liability of the Parent or its subsidiaries (exclusive of the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of Parent in connection with this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses relating to any investment banker, broker, lawyer or accountantDamages exceed $750,000.

Indemnification by Parent. (a) Subject to the terms and conditions of this Article 9, including the limitations set forth in Section 9.6 belowX, Parent shall indemnify indemnify, defend and hold harmless each Shareholder and their respective heirs, legal representatives, assigns and agents (the “Shareholder Indemnified Persons”) Members from and against any and all Indemnified Losses incurred or to be Damages incurred by any Member by reason of them, or resulting from any breach by Parent or arising out ofSub of any of its representations, warranties, covenants or agreements contained in this Agreement or the Assumed Liabilities (collectively "Member Claims"). Notwithstanding the foregoing, the indemnification obligations of Parent pursuant to this Section 10.3 shall be subject to the following limitations: (ai) the breach of any agreement or covenant of Parent or its Affiliates contained in Article 6 of this Agreement; (b) any Third Party Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder of the Company attributable to disclosed or undisclosed liabilities that arise out of the conduct or activities of the Business after the Effective Time; provided that for purposes of this Section 9.3(b), any such Third Party Loss or Losses No indemnification shall be, and Parent shall only be required to indemnify be made by Parent pursuant to this Article X with respect to any Member Claims to the Shareholder Indemnified Parties extent that the aggregate amount of Damages incurred by the Members exceeds $255,000. (ii) No indemnification shall be required to be made by Parent pursuant to this Article X with respect to any Member Claims unless and until the aggregate amount of Damages incurred by the Controlling Members with respect to all Member Claims exceeds $50,000, it being agreed and understood that, if such amount is exceeded, Parent shall not be liable to the full extent of such Damages but shall be liable only to the extent that the aggregate amount of Damages incurred by the Members exceeds $50,000. (iii) The amount of Damages required to be paid by Parent to the Members pursuant to this Article X as a result of any Member Claim shall be reduced to the extent of any amounts to which the Members are entitled to receive pursuant to the terms of the insurance policies (if any) covering such Member Claim. (iv) The amount of Damages required to be paid by Parent to the Members pursuant to this Article X as a result of any Member Claim shall be reduced by the amount of any Tax benefit realized or to be realized by the Members Indemnitees as a result of such Third Party Loss or Losses, after Member Claim (the Closing Date and at no point before, following "Member Claim Reduction Amount"). The Member Claim Reduction Amount shall be calculated on a present value basis using the application appropriate applicable federal tax rate for the month that the Member Claim was suffered as specified under Section 1274(d) of any available insurance proceeds available the Code. (v) No indemnification shall be required to any Shareholder Indemnified Party be made by Parent pursuant to this Article X with respect to such Indemnified Losses, less any Member Claims arising out of or resulting from the reasonable expenses incurred to obtain such proceeds; (c) Liability breach of the representations and warranties of Parent or its subsidiaries (exclusive of the Company and its Subsidiaries) for Taxes for any taxable period ending Sub contained in Article III if Parent can establish that a Member had actual knowledge on or before the Effective Time Closing Date of the event, occurrence, condition or for any Taxes circumstance constituting such breach. (vi) The indemnification obligations of Parent pursuant to this Article X shall be limited to actual damages and shall not include incidental, consequential, indirect, punitive or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; andexemplary damages. (dvii) transaction costs and expenses incurred by or on behalf All indemnification obligations of Parent shall be made in connection with this Agreement and shares of Parent Common Stock having a fair market value based upon the transactions contemplated hereby, including without limitation, fees and expenses relating 60-Day Average Adjusted Price equal to any investment banker, broker, lawyer or accountantthe amount of such obligation.

Indemnification by Parent. (a) Subject to the terms and conditions further provisions of this Article 9, including the limitations set forth in Section 9.6 below6, Parent hereby agrees that it shall indemnify indemnify, defend and hold harmless each Shareholder Purchaser, its Affiliates and, if applicable, their respective directors, officers, shareholders, partners, attorneys, accountants, agents and employees and their respective heirs, legal representatives, successors and assigns and agents (the “Shareholder Purchaser Indemnified PersonsParties” and, collectively with the Seller Indemnified Parties, the “Indemnified Parties”) from from, against and in respect of any Losses imposed on, sustained, incurred or suffered by or asserted against any and all of the Purchaser Indemnified Losses incurred Parties by reason of (i) the untruth, inaccuracy or to be incurred breach (in any case, as of the date hereof) of any representation or warranty made by any of them, resulting from or arising out of: Parent contained in this Agreement; (aii) the breach of any covenant or agreement or covenant of Parent or its Affiliates an Asset Selling Corporation contained in Article 6 this Agreement (including the Schedules attached hereto), the License Agreement, the Transition Agreement (subject to the limitations set forth therein), or the Xxxx of this Agreement;Sale and Assumption; (iii) the Excluded Liabilities; (iv) the Excluded Assets; or (v) any Losses sustained, suffered or incurred by any Purchaser Indemnified Parties arising from or in connection with Taxes payable by an Asset Selling Corporation with respect to any period ending on or prior to the Closing Date (or the portion ending on the Closing Date for any Straddle Taxable Period). (b) any Third Party Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder of Notwithstanding the Company attributable to disclosed or undisclosed liabilities that arise out of the conduct or activities of the Business after the Effective Time; provided that for purposes provisions of this Section 9.3(b)Article 6, any such Third Party Loss or Losses shall beexcept in the case of fraud, and Parent shall only not be required liable to indemnify the Shareholder Purchaser Indemnified Parties for any Losses with respect to the matters contained in Section 6.3(a)(i) involving representations and warranties except to the extent the Losses therefrom exceed Three Hundred Thousand Dollars ($300,000), in which event Parent shall be liable to the Purchaser Indemnified Parties for all such Losses in excess of such amount, subject to Section 6.3(c). In addition, so as to avoid duplicative recovery, Parent shall not be liable to the amount of Purchaser Indemnified Parties for any such Third Party Loss or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party Losses with respect to any amount being claimed if such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds;item has been reflected as a Liability in Final Working Capital. (c) Liability Except in the case of fraud, neither the Parent Purchaser Indemnified Parties nor the Seller Indemnified Parties may recover Losses under this Agreement for untruth, inaccuracy or its subsidiaries breach of representations and warranties which in the aggregate exceed the amount equal to (exclusive of the Company i) Two Million Five Hundred Thousand Dollars ($2,500,000) minus (ii) Losses incurred by Purchaser and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of Parent in connection with this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses Affiliates relating to any investment banker, broker, lawyer or accountantKnown AMS Infringement and not indemnified by Purchaser as an Assumed Liability pursuant to Sections 2.1(c)(vii) and 6.2(iii).

Indemnification by Parent. Subject to (a) From and after the terms and conditions of this Article 9, including the limitations set forth in Section 9.6 belowClosing, Parent and the Surviving Corporation shall indemnify indemnify, defend and hold the Securityholders harmless each Shareholder and their respective heirs, legal representatives, assigns and agents (the “Shareholder Indemnified Persons”) from and against any and all Indemnified Losses incurred or to actual losses, judgments, liabilities, damages, obligations, settlements, awards, offsets, costs and expenses (including, without limitation, reasonable attorneys' fees, accounting fees, and defense and investigation costs) (collectively, "Losses") that may be incurred by any of them, resulting from or Securityholders arising out of: of or relating to (ai) the breach of any agreement inaccuracy in any representation or covenant warranty of Parent or its Affiliates Sub (disregarding for such purpose any materiality, Material Adverse Effect or similar qualifiers) contained in Article 6 Section 3.2 or any breach of or noncompliance with any covenant or agreement of Parent or Sub contained in this Agreement; Agreement or (bii) any Third Party Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder the operation or control of the Company attributable to disclosed or undisclosed liabilities that arise out of the conduct or activities of the Business after the Effective Time; provided that for purposes of this Section 9.3(b), any such Third Party Loss or Losses shall be, and Parent shall only be required to indemnify the Shareholder Indemnified Parties to the extent of the amount of any such Third Party Loss or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party with respect to such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds; (c) Liability of the Parent or its subsidiaries (exclusive business of the Company and its SubsidiariesSubsidiaries after the Closing Date. (b) Notwithstanding anything to the contrary in this Agreement: (i) the Securityholders are not entitled to indemnification under Section 10.1(a) for Taxes for any taxable period ending on Losses based upon any inaccuracy in any representation or before the Effective Time or for any Taxes warranty of Parent or its subsidiaries Sub contained in this Agreement until such time as the Losses incurred by the Securityholders in the aggregate exceed $1,250,000 (including the Company "Minimum"), at which time Parent and its subsidiariesthe Surviving Corporation shall be liable for all Losses in excess of the Minimum incurred by the Securityholders, except for the representations and warranties contained in Sections 3.2(a) (Organization), 3.2(b) (Authority) and 3.2(f) (Brokers and Finders) for which the Minimum shall not be applicable. (ii) Notwithstanding the foregoing, in no event will Securityholders be entitled to indemnification under Section 10.1(a) with respect to a particular matter unless and until the aggregate amount of Losses incurred with respect to such matter for which indemnification is sought (or the reasonable estimate of such Losses likely to be incurred with respect to such matter) exceeds $10,000. (iii) Securityholders' sole and exclusive remedy against Parent or the Surviving Corporation for any Losses described in Section 10.1(a) is the right to proceed for indemnification in the manner, and only to the extent, provided by this Section 10, other than with respect to fraud. (c) The representations and warranties of Parent and Sub contained in this Agreement or in any certificate or instrument delivered under this Agreement will survive for eighteen months after the Effective Time; and Closing Date (dthe "Expiration Date"), other than with respect to Sections 3.2(b) transaction costs and expenses incurred by or on behalf of Parent in connection with this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses relating to any investment banker, broker, lawyer or accountant(Authority) which shall survive indefinitely.

Indemnification by Parent. Subject (a) Each of the Stockholder Indemnified Parties shall be indemnified and held harmless by Parent for and against any and all Adverse Consequences, arising out of or resulting from: (i) the breach of any representation or warranty made by Parent or Merger Sub contained in the Acquisition Documents; provided that written notice of a claim with respect to such breach, which specifies in reasonable detail the basis of such claim, has been given by a Stockholder Indemnified Party to Parent prior to the terms expiration of the applicable representation and conditions warranty period as set forth in Section 8.01(b); or (ii) the breach of any covenant or agreement by Parent contained in the Acquisition Documents. To the extent that Parent’s undertakings set forth in this Article 9Section 8.03 may be unenforceable, including Parent shall contribute the maximum amount that it is permitted to contribute under applicable Law to the payment and satisfaction of all Adverse Consequences incurred by the Stockholder Indemnified Parties, subject to the limitations set forth in Section 9.6 below, Parent shall indemnify and hold harmless each Shareholder and their respective heirs, legal representatives, assigns and agents (the “Shareholder Indemnified Persons”) from and against any and all Indemnified Losses incurred or to be incurred by any of them, resulting from or arising out of: (a) the breach of any agreement or covenant of Parent or its Affiliates contained in Article 6 of this Agreement;8.04. (b) The Stockholders’ Representative, on behalf of a Stockholder Indemnified Party, shall give Parent prompt notice of any matter which such Stockholder Indemnified Party has determined has given rise to a right of indemnification under this Agreement stating the amount of the Adverse Consequences, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided, however, that the failure to provide such notice promptly shall not release Parent from any of its obligations under this Article VIII except to the extent that Parent is materially prejudiced by such failure to give prompt notice. The obligations and Liabilities of Parent under this Article VIII with respect to Adverse Consequences arising from Third Party Claims shall be governed by and be contingent upon the following additional terms and conditions. If a Stockholder Indemnified Party shall receive notice of any Third Party Losses asserted against Claim, the Stockholders’ Representative, on behalf of such Stockholder Indemnified Party, shall give Parent prompt notice of such Third Party Claim following the receipt by the Stockholder Indemnified Party of such notice; provided, however, that the failure to provide such notice promptly shall not release Parent from any Shareholder solely in of its obligations under this Article VIII except to the extent that Parent is materially prejudiced by such Person’s capacity as a shareholder failure to give prompt notice. Parent shall be entitled to assume, control and conduct the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Stockholders’ Representative within fifteen (15) days of the Company attributable receipt of such notice from the Stockholders’ Representative; provided, however, that if there exists or is reasonably likely to disclosed or undisclosed liabilities exist a conflict of interest that arise out would make it inappropriate in the judgment of the conduct or activities Stockholders’ Representative in its reasonable discretion, for the same counsel to represent both the Stockholder Indemnified Party and Parent then the Stockholder Indemnified Party shall be entitled to retain its own counsel at the expense of Parent. For the avoidance of doubt, under such circumstances, Parent shall be responsible only for the expenses of a single law firm representing all of the Business after Stockholder Indemnified Parties involved. In the Effective Time; provided event that for purposes of this Section 9.3(b), Parent exercises the right to undertake any such defense against any such Third Party Loss Claim as provided above, the Stockholder Indemnified Party shall cooperate with Parent in such defense and make available to Parent at Parent’s expense, all witnesses, pertinent records, materials and information in the Stockholder Indemnified Party’s possession or Losses shall beunder the Stockholder Indemnified Party’s control relating thereto as is reasonably required by Parent. Similarly, in the event Parent does not exercise the right to undertake the defense against any Third Party Claim and Parent shall only be required to indemnify the Shareholder Stockholder Indemnified Parties to Party is conducting the extent of the amount of defense against any such Third Party Loss Claim, Parent shall cooperate with the Stockholder Indemnified Party in such defense and make available to the Stockholder Indemnified Party, at Parent’s expense, all such witnesses, records, materials and information in Parent’s possession or Lossesunder Parent’s control relating thereto as is reasonably required by the Stockholder Indemnified Party. No such Third Party Claim the defense of which is conducted by Parent may be settled, after or the Closing Date and at no point before, following the application entry of any available insurance proceeds available to any Shareholder order, ruling, judgment, decision, or similar determination or finding consented to, by Parent without the prior written consent of the Stockholders’ Representative, which shall not be unreasonably withheld, conditioned or delayed. No such Third Party Claim the defense of which is conducted by a Stockholders Indemnified Party with respect to may be settled by such Stockholder Indemnified Losses, less Party without the reasonable expenses incurred to obtain such proceeds; (c) Liability of the Parent or its subsidiaries (exclusive of the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes prior written consent of Parent which shall not be unreasonably withheld, conditioned or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of Parent in connection with this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses relating to any investment banker, broker, lawyer or accountantdelayed.

Indemnification by Parent. (a) Subject to the terms and conditions provisions of this Article 9, including the limitations set forth in Section 9.6 belowVIII, Parent shall indemnify indemnify, defend and hold harmless each Shareholder the Eligible Company Holders and their respective heirsRepresentatives, legal representativesequity owners and each Person, assigns and agents if any, who controls or may control such Eligible Company Holders within the meaning of the Securities Act or the Exchange Act (collectively the “Shareholder Eligible Holder Indemnified PersonsParties”) ), from and against any and all Indemnified Losses incurred or to be incurred by any of them, resulting from or Damages arising out ofof or related to: (ai) the Any misrepresentation or breach of or default or inaccuracy in any agreement of the representations or covenant warranties of Parent or its Affiliates contained in Article 6 IV; or (ii) Any breach or failure to comply with any of the covenants of Parent set forth in this Agreement;; and/or (iii) any third party claim, or threatened third party claim, asserted against any Eligible Holder Indemnified Party arising out of Parent’s or Merger Sub’s actions or inactions prior to the Effective Time. (b) Any claim for indemnification made by any Third Eligible Holder Indemnified Party Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder of the Company attributable to disclosed or undisclosed liabilities that arise out of the conduct or activities of the Business after the Effective Time; provided that for purposes of under this Section 9.3(b8.3 must be made in writing delivered to Parent no later than the Final Escrow Release Date (an “Eligible Holder Claim Notice”). If delivered to Parent no later than the Final Escrow Release Date, any such Third Party Loss or Losses a claim for indemnification set forth in an Eligible Holder Claim Notice as provided herein shall be, and Parent shall only be required to indemnify survive the Shareholder Indemnified Parties to the extent of the amount of any such Third Party Loss or Losses, after the Closing Final Escrow Release Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party with respect to such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds;until final resolution thereof as provided in this Article VIII. (c) Liability Notwithstanding the foregoing provisions of this Article VIII (or any other provision of this Agreement), the Parties agree that: (i) the indemnification provided for in Section 8.3(a)(i) shall not apply unless and until the aggregate Damages for which the Eligible Holder Indemnified Parties seek or have sought indemnification hereunder, as stated in one or more Eligible Holder Claim Notices, exceed the Basket, in which case the right to recover Damages shall apply to the full amount of the Parent or its subsidiaries (exclusive of claim; provided, however, that the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of Parent in connection with this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses relating Basket shall not apply to any investment banker, broker, lawyer or accountant.such indemnification claim

Indemnification by Parent. Subject Parent agrees to the terms and conditions of this Article 9, including the limitations set forth in Section 9.6 below, Parent shall indemnify and hold harmless the Stockholder Representative, the Equityholders and each Shareholder and of their respective heirsAffiliates, legal representativesdirectors, assigns officers, employees, members, managers and agents (and each Person who controls the “Shareholder Indemnified Persons”) Stockholder Representative or any of the Equityholders within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable Legal Requirements, from and against any and all Indemnified Losses incurred to which they or to be incurred by any of them, resulting from them may become subject insofar as such Losses (or arising out of: (aactions in respect thereof) the breach of any agreement or covenant of Parent or its Affiliates contained in Article 6 of this Agreement; (b) any Third Party Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder of the Company attributable to disclosed or undisclosed liabilities that arise out of or are based upon (x) any untrue statement or alleged untrue statement of a material fact contained in the conduct Registration Statement as originally filed or activities in any amendment thereof or any preliminary, final or summary Prospectus or Free Writing Prospectus included in the Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (y) any violation or alleged violation by Parent of the Business after Securities Act, the Effective Time; provided that for purposes of this Section 9.3(b)Exchange Act, any such Third Party Loss other federal law, any state or Losses shall beforeign securities law, or any rule or regulation promulgated under of the foregoing laws, relating to the offer or sale of the Registrable Securities, and in any such case, Parent shall only agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating, preparing or defending any such Loss, claim, damage, liability, action or investigation (whether or not the indemnified party is a party to any proceeding); provided, however, that Parent will not be required to indemnify the Shareholder Indemnified Parties liable in any case to the extent of the amount of that any such Third Party Loss arises out of or Losses, after is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information relating to the Closing Date and at no point before, following the application of Stockholder Representative or any available insurance proceeds available Equityholder furnished to any Shareholder Indemnified Party with respect to such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds; (c) Liability of the Parent or its subsidiaries (exclusive of the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of the Stockholder Representative or such Equityholder specifically for inclusion therein, it being understood and agreed that the only information so furnished by any Equityholder will be that information that was provided by such Equityholder in the questionnaire provided to Parent (such information, the “Equityholder Information”). This indemnity agreement will be in connection with this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses relating addition to any investment banker, broker, lawyer or accountantliability which Parent may otherwise have.

Indemnification by Parent. (a) Subject to the other terms and conditions of this Article 9, including the limitations set forth in Section 9.6 belowAgreement, Parent shall indemnify the Preferred Holder Parties against and hold them harmless each Shareholder and their respective heirsfrom all Losses which any the Preferred Holder Party may suffer, legal representativessustain or become subject to, assigns and agents as a result of, in connection with or by virtue of (the “Shareholder Indemnified Persons”i) from and against any and all Indemnified Losses incurred misrepresentation or to be incurred by any of them, resulting from or arising out of: (a) the breach of any agreement representation or covenant warranty of Parent or its Affiliates contained in Article 6 this Agreement or any exhibit or schedule hereto or any certificate delivered at the Closing by or on behalf of Parent to the Preferred Holder in connection with the Merger and the transactions contemplated hereby (which breach shall be determined for purposes of this Agreement;Article 5 without regard to any qualification by terms such as “material” or “material adverse effect” contained in such representation or warranty), and (ii) any breach of any covenant or agreement of Parent contained in this Agreement or any exhibit or schedule hereto or any certificate delivered at the Closing by or on behalf of it to the Preferred Holder in connection with the Merger and the transactions contemplated hereby. (b) Parent shall not have any Third Party Liability to the Preferred Holder Parties under Section 5.3(a)(i) unless the aggregate amount of all such Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder of incurred by the Company attributable to disclosed or undisclosed liabilities that arise out of the conduct or activities of the Business after the Effective Time; provided that Preferred Holder Parties for purposes of which Parent would, but for this Section 9.3(b5.3(b), any such Third Party Loss or Losses shall bebe liable exceeds, on a cumulative basis, the Basket, and Parent shall then only be required to indemnify the Shareholder Indemnified Parties to the extent of the amount of Losses in excess of the Basket; provided, however, that the Basket shall not apply to a breach of any Fundamental Representation. Parent shall not have any Liability to the Preferred Holder Parties under Section 5.3(a)(i) to the extent the aggregate amount of indemnifiable Losses under that Section exceeds the Cap. (c) Parent shall not have any Liability to the Preferred Holder Parties under Section 5.3(a) unless the Preferred Holder gives written notice demanding indemnification with respect thereto to Parent on or prior to the Applicable Limitation Date (if any), it being agreed that if such demand for indemnification is timely made, the relevant representations and warranties, covenants and agreements shall survive with respect to the claims for indemnification set forth in such notice until such matter is resolved. (d) The Preferred Holder shall give Parent written notice of any claim, assertion, event or proceeding by or in respect of a third party as to which any Preferred Holder Party may request indemnification hereunder or as to which the Basket may be applied as soon as is practicable and in any event within thirty (30) days of the time that the Preferred Holder actually learns of such claim, assertion, event or proceeding, describing in reasonable detail the claim, the amount thereof (if known) and the basis thereof; provided, however, that the failure to so notify Parent shall not affect the rights of the Preferred Holder Parties to indemnification hereunder except to the extent that Parent is actually prejudiced by such failure. Parent shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third Party Loss claim or Lossesproceeding brought by a third party at Parent’s own expense, after so long as Parent gives written notice to the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party Preferred Holder Parties accepting full responsibility for indemnification with respect to such Indemnified Lossesclaim or proceeding within fifteen (15) days of the receipt of notice from the Preferred Holder. If Parent elects to assume the defense of any such claim or proceeding, less Parent shall consult with the Preferred Holder for the purpose of allowing the Preferred Holder to participate in such defense, but in such case the expenses of the Preferred Holder shall be paid by the Preferred Holder, unless (i) the employment thereof has been specifically authorized by Parent in writing or (ii) Parent has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Preferred Holder, on the one hand, and Parent, on the other hand. The Preferred Holder shall reasonably cooperate with Parent in the defense or settlement thereof, and Parent shall reimburse the Preferred Holder for all the reasonable out-of-pocket expenses incurred to obtain such proceeds; (c) Liability of the Preferred Holder in connection therewith. The Preferred Holder shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Parent or its subsidiaries (exclusive consents in writing in advance to such payment. Parent shall obtain the prior written consent of the Company Preferred Holder before entering into any settlement of any third party claim if the settlement does not expressly release the applicable Preferred Holder Parties from all Liabilities and its Subsidiaries) for Taxes for obligations with respect to such third party claim or the settlement imposes injunctive or other equitable relief against the Preferred Holder Parties. If Parent does not elect or fails to defend or if, after commencing or undertaking any taxable period ending on such defense, Parent fails to prosecute or before withdraws from such defense, the Effective Time Preferred Holder shall have the right to undertake the defense or for settlement thereof, at Parent’s expense. In such case, the Preferred Holder shall keep Parent reasonably apprised of the status of the claim, liability or expense and any Taxes of resulting suit, proceeding or enforcement action, shall furnish Parent or its subsidiaries (including the Company with all documents and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of information that Parent in connection with this Agreement may reasonably request and the transactions contemplated herebyPreferred Holder shall consult with Parent prior to acting on major matters, including without limitationsettlement discussions. In addition, fees and expenses relating Parent shall at all times have the right to any investment banker, broker, lawyer participate in such defense at its own expense directly or accountantthrough counsel.

Indemnification by Parent. Subject (a) Following the applicable Closing, subject to the terms and conditions of this Article 9, including the limitations set forth in Section 9.6 belowARTICLE VIII, Parent shall indemnify and hold harmless each Shareholder Buyer and its Affiliates (including the Acquired Companies) and their respective heirssuccessors, legal representativespermitted assigns, assigns equityholders, officers, directors, employees, Representatives, members, partners and agents (collectively, the “Shareholder Buyer Indemnified PersonsParties”) from and against against, without duplication, any and all Indemnified Losses incurred or to be incurred suffered by any of them, resulting from or Buyer Indemnified Party arising out of: , relating to or resulting from any breach of any of the representations or warranties contained in ARTICLE III or ARTICLE IV as of the date such representation or warranty was made and as if such representation or warranty was made at and as of the Closing (a) except for any such representations or warranties that speak as of a specific date, the breach of which shall be determined as of such specified date), in each case, with respect to the Acquired Companies purchased by Buyer pursuant hereto, any agreement breach of any of the covenants or covenant agreements of Parent and Landcar Management (solely with respect Landcar Management, a breach of a Landcar Management Provision during the First Interim Period) of the covenants or agreements in this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation by Parent in Section 6.16, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to Section 6.16), any Closing Indebtedness and Closings Unpaid Transaction Expenses solely to the extent not reflected in the calculation of the Final Purchase Price or the components thereof, and any plan subject to Title IV of ERISA which an Acquired Company or a present or former member of its Affiliates contained in Article 6 of this Agreement;Controlled Group participated in, sponsored, or contributed to prior to the applicable Closing. (b) any Third Party Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder of Subject to the Company attributable to disclosed or undisclosed liabilities that arise out of the conduct or activities of the Business after the Effective Time; provided that for purposes terms of this ARTICLE VIII, the obligation of Parent to indemnify the Buyer Indemnified Parties for Losses with respect to Section 9.3(b), any such Third Party Loss or Losses shall be, and 8.2(a) is subject to the limitations below. (i) Parent shall only not be required to indemnify provide indemnification to any Buyer Indemnified Party pursuant to Section 8.2(a)(i) unless the Shareholder aggregate amount of Losses incurred or suffered by Buyer Indemnified Parties from the matters contained in Section 8.2(a)(i) exceeds the Aggregate Deductible, and then Buyer Indemnified Parties shall be entitled to indemnification for only the extent amount in excess of the Aggregate Deductible. (ii) In no event shall the aggregate amount of Losses for which Parent is obligated to indemnify Buyer Indemnified Parties pursuant to Section 8.2(a)(i) exceed the Aggregate Cap. (iii) Parent shall not be required to provide indemnification to any such Third Buyer Indemnified Party Loss pursuant to Section 8.2(a)(i) in connection with any single item or group of related items that results in indemnifiable Losses that do not exceed $25,000 (“De Minimis Losses”); provided, however, De Minimis Losses shall apply towards Buyer satisfying the Aggregate Deductible. (iv) Parent shall not be required to provide indemnification to any Buyer Indemnified Party pursuant to Section 8.2(a)(i) in connection with any single item or group of related items that results in Losses that do not exceed $5,000 (the “Minimum Threshold Losses”); provided, however, no Minimum Threshold Losses shall apply towards Buyer satisfying the Aggregate Deductible. (v) Notwithstanding anything contained in this Section 8.2(b), none of the Minimum Threshold Losses, after De Minimis Losses, the Closing Date and at no point beforeAggregate Deductible, following or the application of any available insurance proceeds available Aggregate Cap shall apply to any Shareholder Indemnified Party such claim for indemnification pursuant Sections 8.2(a)(i) (solely with respect to such Indemnified LossesFundamental Representations), less the reasonable expenses incurred to obtain such proceeds;8.2(a)(ii), 8.2(a)(iii) or 8.2(a)(iv). (cvi) The maximum aggregate Liability of Parent for all indemnifiable Losses under this ARTICLE VIII and Section 6.16(g) shall not exceed the Parent or its subsidiaries (exclusive of the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; andFinal Purchase Price. (dvii) transaction costs and expenses incurred by All indemnifiable Losses with respect to any indemnification claim made pursuant to Section 8.2(a)(i) shall be satisfied as follows: (1) first, from the Indemnity Escrow Amount until such funds are depleted or on behalf of Parent released in connection accordance with this the Escrow Agreement and the transactions contemplated hereby(2) second, including without limitation, fees and expenses relating by direct recourse to any investment banker, broker, lawyer or accountantParent.

Indemnification by Parent. (a) Subject to the terms and conditions limitations of this Article 9, including the limitations set forth in Section 9.6 below9.3(b) hereof, Parent shall agrees to indemnify in full holders of Company Capital Stock, Qualified Options and hold harmless each Shareholder Qualified Warrants immediately prior to the Effective Time and their respective heirsofficers, legal representativesdirectors, assigns employees, agents and agents subsidiaries (collectively, the “Shareholder Holder Indemnified PersonsParties”) and hold them harmless from and against any and all Indemnified Losses incurred or to be incurred by which any of themthe Holder Indemnified Parties may suffer, resulting sustain or become subject to, arising from or arising out of: relating to (ai) the any inaccuracy or misrepresentation in or breach of any agreement of the representations and warranties of Parent contained in this Agreement or other Related Documents or (ii) any breach of, or failure to perform, any covenant of Parent or its Affiliates contained in Article 6 this Agreement (collectively, the “Holder Losses”) provided, however, that Holder Losses shall not include any amount for “punitive”, “consequential” or “special damages” or damages for “lost profits” except to the extent that (x) a Claim alleges such forms of damages, (y) a Holder Indemnified Party is deemed responsible therefor pursuant to such Claim and (z) the responsible Holder Indemnified Party incurs Losses as a result thereof. The calculation of any such Holder Loss will reflect (A) the amount of any Tax benefit actually recognized by the Holder Indemnified Parties for the United States federal and state income Tax purposes in the year in which such Holder Loss is suffered or incurred and which is determined by the applicably Holder Indemnified Party’s Tax Return preparers to be without material risk of being disallowed upon audit and (B) the amount of any insurance proceeds received by the Holder Indemnified Party in respect of such Holder Loss. For purposes of (A) above, a Tax benefit is “actually realized” if it can be utilized to reduce such Holder Indemnified Party’s Tax liability with respect to the Tax year in which the Holder Loss is suffered or incurred, and, for the avoidance of doubt, the mere incurring or increase in a capital or net operating loss or similar Tax asset, without a resulting reduction in Tax in that year, will not be deemed a Tax benefit for purposes of this Agreement;provisions. (b) Parent will be liable to the Holder Indemnified Parties for Holder Losses from an inaccuracy or misrepresentation in or breach of any Third Party Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder of the Company attributable to disclosed or undisclosed liabilities that arise out representations and warranties of the conduct Parent contained in this Agreement or activities of in the Business after the Effective Time; provided that for purposes of this Related Documents (i) only if Stockholders’ Representative delivers to Parent a written notice, pursuant to Section 9.3(b)9.4 or 9.5 hereof, any such Third Party Loss or Losses shall beas applicable, and Parent shall only be required to indemnify the Shareholder Indemnified Parties to the extent of the amount of any such Third Party Loss or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party with respect to such Holder Indemnified Party’s claim to be indemnified for such Holder Losses prior to 15 months after the Closing Date, and (ii) only if the aggregate amount of all such Holder Losses exceeds the Basket Amount, in which case Parent shall be obligated to indemnify the Holder Indemnified Parties for the aggregate amount of all Holder Losses, less provided, however, that no Holder Indemnified Party shall make any claim for Losses pursuant to Section 9.3(a) hereof which individually does not exceed $15,000, and such claims not meeting this threshold shall not be applied in calculating the reasonable expenses incurred to obtain such proceeds; (c) Liability of the Parent or its subsidiaries (exclusive of the Company and its Subsidiaries) Basket Amount specified above. Except for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of Parent fraud in connection with any breach or misrepresentation by Parent, Parent’s aggregate liability for Holder Losses resulting from inaccuracies or misrepresentations in or breaches of any of the representations and warranties of Parent contained in this Agreement and shall not exceed the transactions contemplated hereby, including without limitation, fees and expenses relating to any investment banker, broker, lawyer or accountantCap.

Indemnification by Parent. Subject (i) Parent shall defend, indemnify and hold the APAR Holders harmless from and against and in respect of any and all actual losses, liabilities, damages, judgments, settlements and expenses, including reasonable attorney fees, incurred directly by the APAR Holders (hereinafter “APAR Holders Losses”) arising out of any breach of any of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4, 4.6, 4.10 and 4.13 hereof. The APAR Holders shall give Parent prompt written notice of any third party claim which may give rise to any indemnity obligation under this Section 6.5(b), together with the estimated amount of such claim, and Parent shall have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the APAR Holders within 60 days of receipt of Parent’s written notice; provided, however, that Parent’s counsel shall be reasonably satisfactory to the terms APAR Holders. Failure to give prompt notice shall not affect the indemnification obligations hereunder in the absence of actual prejudice. If any APAR Holder desires to participate in any such defense assumed by Parent such APAR Holder may do so at their own individual sole cost and conditions expense. If Parent declines to assume any such defense, it shall be liable for all costs and expenses of defending such claim incurred by the APAR Holders, including reasonable fees and disbursements of counsel. Neither party shall, without the prior written consent of the other party, which shall not be unreasonably withheld, settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the other party or any Subsidiary or Affiliate thereof or if such settlement or compromise does not include an unconditional release of the other party for any liability arising out of such claim or demand. (ii) The foregoing obligation to indemnify the APAR Holders set forth in this Section 6.5(b) shall be subject to each of the following limitations: (1) Parent’s indemnification obligation for any breach of the representations and warranties described in (A) Sections 4.1, 4.2, 4.3 and 4.4 of this Article Agreement shall survive from the Effective Time until the end of time, (B) in Sections 4.6 and 4.10 shall survive for only a period of nine (9) months from the Effective Time, including (C) Section 4.20 of this Agreement shall survive for only a period of eighteen (18) months or statutory after the Effective Time and (D) Section 4.13 shall survive until the expiration of the relevant statute of limitations; after the expiration of the respective survival period, such representations and warranties of Parent and Merger Sub under this Agreement shall be extinguished. No claim for the recovery of such APAR Holders Losses may be asserted after such 9-month, 18-month or statutory period other than those that survive hereof until the end of time; provided, however, that claims first asserted in writing with specificity within such period shall not be thereafter barred. (2) No reimbursement for the APAR Holders Losses asserted against Parent under this Section 6.5(b) shall be required unless and until the cumulative aggregate amount of such APAR Holders Losses equals or exceeds $1.25 million (the “Parent Threshold”) and then only to the extent that the cumulative aggregate amount of the APAR Holders Losses, as finally determined, exceeds said Parent Threshold up to a maximum of $10 million; provided that in calculating the Parent Threshold, any Parent Losses which individually total less than $100,000 each (“De Minimis APAR Holders Losses”) shall be excluded in their entirety and Parent and its Affiliates in any event shall have no liability hereunder to the APAR Holders and its Affiliates for any such De Minimis APAR Holders Losses. (3) Parent’s liability to the APAR Holders under this Section 6.5(b) for APAR Holders Losses in excess of the Parent Threshold shall be limited to the issuance of additional shares of Parent Common Stock to the APAR Holders. Solely for purposes of determining the number of additional shares of Parent Common Stock to be issued to the APAR Holders pursuant to this Section 6.5(b), each share of Parent Common Stock shall be deemed to have a value of $13.00. (iii) The indemnities provided in this Section 6.5(b) shall survive the Closing, subject to the limitations on survival set forth in Section 9.6 below, Parent 6.5(b)(ii). The indemnity provided in this Section 6.5(b) shall indemnify be the sole and hold harmless each Shareholder exclusive remedy of the indemnified party against the indemnifying party at law or equity for any matter covered by paragraphs (b)(i) and their respective heirs, legal representatives, assigns and agents (the “Shareholder Indemnified Persons”) from and against any and all Indemnified Losses incurred or to be incurred by any of them, resulting from or arising out of:ii). (aiv) the breach of any agreement or covenant of In no event shall Parent or its Affiliates contained in Article 6 of this Agreement; (b) any Third Party Losses asserted against any Shareholder solely in such Person’s capacity as a shareholder of the Company attributable to disclosed or undisclosed liabilities that arise out of the conduct or activities of the Business after the Effective Time; provided that for purposes of this Section 9.3(b), any such Third Party Loss or Losses shall be, and Parent shall only be required to indemnify the Shareholder Indemnified Parties liable to the extent of the amount of any such Third Party Loss APAR Holders for special, indirect, incidental, consequential or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party with respect to such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds; (c) Liability of the Parent or its subsidiaries (exclusive of the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (d) transaction costs and expenses incurred by or on behalf of Parent in connection with this Agreement and the transactions contemplated hereby, including without limitation, fees and expenses relating to any investment banker, broker, lawyer or accountantpunitive damages.

Indemnification by Parent. Subject to From and after the terms and conditions of this Article 9, including the limitations set forth in Section 9.6 belowClosing, Parent shall indemnify and hold harmless each Shareholder the Former Securityholders, their Affiliates and their respective heirsagents, legal representatives, successors and assigns (collectively “Securityholder Claimants” and agents (the individually “Shareholder Indemnified PersonsSecurityholder Claimant”) from and harmless against any and all Indemnified Losses incurred Damages, whether or to be not involving a third-party claim, that the Securityholder Claimants incurred by any reason of them, resulting from or arising out ofattributable to: (a) the inaccuracy or breach of any agreement representation or covenant warranty of Parent Parent, Merger Sub or its Affiliates CEA Merger Sub contained in (i) Article 6 III of this AgreementAgreement or (ii) the Parent Closing Certificate; (b) any Third Party Losses asserted against failure by Parent, Merger Sub, CEA Merger Sub, the Surviving Corporation, or the CEA Surviving Corporation to perform or comply with any Shareholder solely covenant or obligation of Parent, Merger Sub or the Surviving Corporation contained in such Person’s capacity as a shareholder this Agreement; provided, however, that in the case of the Company attributable to disclosed or undisclosed liabilities that arise out of Surviving Corporation and the conduct or activities of the Business after the Effective Time; provided that for purposes of CEA Surviving Corporation, this Section 9.3(b), any such Third Party Loss or Losses shall be, and Parent clause (b) shall only be required applicable to indemnify covenants or obligations to be performed by the Shareholder Indemnified Parties to Surviving Corporation and the extent of the amount of any such Third Party Loss CEA Surviving Corporation at or Losses, after the Closing Date and at no point before, following the application of any available insurance proceeds available to any Shareholder Indemnified Party with respect to such Indemnified Losses, less the reasonable expenses incurred to obtain such proceeds; (c) Liability of the Parent or its subsidiaries (exclusive of the Company and its Subsidiaries) for Taxes for any taxable period ending on or before the Effective Time or for any Taxes of Parent or its subsidiaries (including the Company and its subsidiaries) after the Effective Time; and (dc) transaction costs and expenses incurred any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any Person with Parent (or any Person acting on behalf of Parent its behalf) in connection with this Agreement and the transactions contemplated hereby. (A) Other than in connection with indemnifying the Securityholder Claimants from third party claims (“Third Party Claims”) which seek punitive, including without limitationconsequential, fees and expenses relating exemplary incidental or other special-type Damages, the Parent shall not be liable for any punitive, consequential or exemplary Damages. Parent shall not be required to indemnify a Securityholder Claimant under clause (a) of this Section 7.3 unless the aggregate cumulative sum of all amounts for which indemnity would otherwise be due under clause (a) of this Section 7.3 exceeds $3,000,000, in which case Parent shall only be responsible for such excess. In addition, Parent’s aggregate maximum liability for indemnification under clause (a) of this Section 7.3 shall not exceed $15,000,000. The limitations set forth in the immediately two preceding sentences shall not apply to claims arising from any investment banker, broker, lawyer inaccuracy or accountantbreach of the representations or warranties contained in Sections 3.2 or claims based on fraud.