Common use of INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS Clause in Contracts

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. Subject to the conditions and limitations expressed in this Section 12, the Stockholders, severally but not jointly, and the Company (but the Company’s indemnification obligations under this Section 12 shall expire on the Closing) shall indemnify, defend and hold harmless Buyer and Merger Sub and the Surviving Corporation, and each of their respective officers, directors, employees, agents, representatives and their successors and assigns (each a “Buyer Indemnified Party” or, collectively, “Buyer Indemnified Parties”) from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs and expenses, including reasonable attorney’s fees and court costs, except for attorney’s fees and court costs related to the Zeiss Matter described in Schedule 12.1.4 (“Loss”, or “Losses”), sustained or incurred by a Buyer Indemnified Party, arising out of or caused by, directly or indirectly, any of the following: 12.1.1 Any misrepresentation, breach or failure of any warranty or representation made by the Company in or pursuant to this Agreement. 12.1.2 Any failure or refusal by the Company to satisfy or perform any covenant, term or condition of this Agreement or any agreement to be executed and delivered pursuant to this Agreement that is required to be satisfied or performed by the Company. 12.1.3 Any deficiency, adjustment or assessment for Taxes made against or imposed upon the Company (or any of its predecessors or successors) with respect to any period ending on or before the Closing Date that is not accrued on the Closing Balance Sheet, other than Taxes attributable to the Merger, which, for the avoidance of doubt, shall include any Taxes arising from the Merger, including the failure of the Merger to qualify as a reorganization within the meaning of Section 368(a) of the Code, other than such Taxes arising as a result of actions taken by any Stockholder not expressly contemplated by this Agreement. The right of the Buyer Indemnified Parties to indemnification under this Section 12.1.3 shall not be affected by the fact that such deficiency, adjustment or assessment is made against or imposed upon the Buyer Indemnified Parties as a result of the fact that, after the Closing Date, the Surviving Corporation shall be included in the consolidated federal income tax returns filed by the Buyer. 12.1.4 The Zeiss Matter, as and to the extent set forth on Schedule 12.1.4 hereto. 12.1.5 Any claims by any Stockholder, holder of Company Options or of Dissenting Shares or claims by any other Person, (A) claiming that any amount is owed to such Person other than that portion of the Merger Consideration allocated to such Person pursuant to the Merger Consideration Calculation Statement, or (B) claiming that such Person has an equity interest in Surviving Corporation or Buyer (whether through ownership of capital stock, options, warrants convertible securities or otherwise).

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. (a) Subject to the conditions Sections 6.1(b) and limitations expressed in this Section 126.1(c) hereof, the StockholdersStockholders hereby agree, jointly and severally, except as otherwise specifically provided throughout this Agreement with respect to representations and warranties made severally but and not jointlyjointly by each Stockholder as to which each such Stockholder hereby severally and not jointly agrees, and the Company (but the Company’s indemnification obligations under this Section 12 shall expire on the Closing) shall indemnify, defend to indemnify and hold harmless Buyer THINK against and Merger Sub and the Surviving Corporation, and each in respect of their respective officers, directors, employees, agents, representatives and their successors and assigns (each a “Buyer Indemnified Party” or, collectively, “Buyer Indemnified Parties”) from and against any and all actions, suitsdamages, claims, demandslosses and expenses (including, debtswithout limitation, liabilities, obligations, losses, damages, costs and expenses, including reasonable attorney’s attorneys' fees and court costs, except for attorney’s fees and court costs related to the Zeiss Matter described in Schedule 12.1.4 (“Loss”, or “Losses”), sustained or disbursements) reasonably incurred by a Buyer Indemnified Party, THINK (all such amounts may hereinafter be referred to as the "Damages") arising out of of: (i) any misrepresentation or caused by, directly or indirectly, any of the following: 12.1.1 Any misrepresentation, breach or failure of any representation or warranty or representation made by the Company or the Stockholders pursuant to the provisions of this Agreement or in any statement, certificate or other document furnished by the Company or the Stockholders pursuant to this Agreement. 12.1.2 Any failure ; and (ii) the nonperformance or refusal by the Company to satisfy or perform breach of any covenant, term agreement or condition obligation of the Company or the Stockholders contained in this Agreement or which has not been waived by THINK in writing. The Stockholders shall have no right to seek contribution from the Company in the event that they are required to make any agreement payments hereunder. (b) Subject to Section 3.3 hereof, the Stockholders shall be executed and delivered obligated to indemnify THINK pursuant to this Agreement that is required to be satisfied or performed by the Company. 12.1.3 Any deficiency, adjustment or assessment for Taxes made against or imposed upon the Company (or any of its predecessors or successors) Section 6.1 with respect to any period ending claims for Damages as to which THINK shall have given written notice to the Company and the Stockholders on or before the Closing Date that is not accrued close of business on the sixtieth (60) day following the first anniversary of the Closing Balance SheetDate. The Stockholders shall be obligated to indemnify THINK with respect to claims for Damages arising out of any misrepresentation or breach of warranty made by the Company or the Stockholders relating to Subsection 3.1(s) as to which THINK shall have given notice on or before the close of business on the sixtieth (60) day following the later of: (i) the expiration date of the statute of limitations applicable to any indemnified federal, other than Taxes attributable to state, foreign or local tax liability; or (ii) the Merger, which, for the avoidance final determination of doubt, shall include any Taxes arising from the Mergersuch tax liability, including the failure final administrative and/or judicial determination thereof. (c) Notwithstanding the indemnification provided pursuant to Subsection 6.1 (a) and 6.1(b) above, no amount shall be payable by the Stockholders in indemnification hereunder or under any other provision of this Agreement unless the aggregate amount of such Damages in respect of which the Company or the Stockholders would be liable, but for operation and application of the Merger to qualify as a reorganization within the meaning provisions of Section 368(a) of the Code, other than such Taxes arising as a result of actions taken by any Stockholder not expressly contemplated by this Agreement. The right of the Buyer Indemnified Parties to indemnification under this Section 12.1.3 6.1(c), exceeds on a cumulative basis Fifty Thousand Dollars ($50,000) and then only to the extent of such excess; PROVIDED, HOWEVER, that the Stockholders shall not be affected by the fact that such deficiency, adjustment or assessment is liable for claims made against or imposed upon the Buyer Indemnified Parties as a result in excess of the fact that, after total purchase price paid to the Closing Date, Stockholders (the Surviving Corporation "Cap") and each such Stockholder shall be included in the consolidated federal income tax returns filed by the Buyer. 12.1.4 The Zeiss Matter, as and to the extent set forth on Schedule 12.1.4 hereto. 12.1.5 Any claims by any Stockholder, holder of Company Options or of Dissenting Shares or claims by any other Person, (A) claiming that any amount is owed to such Person other than liable for his pro rata portion thereof based upon that portion of the Merger Consideration allocated total Purchase Price he is entitled to such Person receive pursuant to Sections 1.2(a) and 1.2(b) hereto. (d) Notwithstanding the Merger Consideration Calculation Statementforegoing, there shall be no Cap and the Company shall be entitled to full indemnification by the Stockholders with respect to claims involving employment matters, environmental matters, tax matters and intellectual property matters. (e) In any case where the Stockholders have indemnified THINK for any Damages and THINK recovers from a third party all or (B) claiming that such Person has an equity interest in Surviving Corporation or Buyer (whether through ownership any part of capital stockthe amount so indemnified by the Stockholders, options, warrants convertible securities or otherwise)THINK shall promptly reimburse to the Stockholders the amount so recovered.

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. Subject to the conditions and limitations expressed in this Section 12, the Stockholders, severally but not jointly, The Company and the Company (but the Company’s indemnification obligations under this Section 12 shall expire on the Closing) Stockholders jointly and severally shall indemnify, defend and hold harmless Buyer and Merger Sub and the Surviving Corporation, and each of their respective officersits employees, directors, employees, agentsofficers, representatives and their successors and assigns affiliates, including the Company after the Closing (each a “Buyer Indemnified Party” or, and collectively, the “Buyer Indemnified Parties”) from and against against, and pay or reimburse, as the case may be, the Buyer Indemnified Parties for, any and all actions, suitslosses, claims, demands, debts, liabilities, obligationsdamages, losses, damagesdeficiencies, costs and expenses, including the reasonable attorney’s fees and court costsexpenses of attorneys, except for attorney’s fees accountants and court costs related to the Zeiss Matter described in Schedule 12.1.4 other professionals (each a “Loss”, or ” and collectively “Losses”)) paid, incurred, accrued or sustained or incurred by a the Buyer Indemnified PartyParties, or any one of them, directly or indirectly, arising out of or caused byrelating to (A) any breach or inaccuracy of a representation, directly warranty or indirectly, any covenant of the following: 12.1.1 Any misrepresentation, breach or failure Company contained in (i) this Agreement as of any warranty or representation made by the Company in or pursuant to this Agreement. 12.1.2 Any failure or refusal by the Company to satisfy or perform any covenant, term or condition date of this Agreement or on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date, except for those representations and warranties which address matters only as of a particular date (which representations shall be deemed to have been made only as of such particular date), (ii) in the certificates delivered pursuant to Section 7.3 of this Agreement or (iii) any agreement other agreement, certificate or instrument executed or delivered by the Stockholders or the Company in connection with this Agreement and (B) any Company Outstanding Debt not listed on Schedule 2.7. Stockholders are receiving Merger Consideration pursuant to this Agreement subject to their obligations under the Stockholder Agreement (as defined herein), and Stockholders under such Stockholder Agreement expressly agree to be executed bound to the indemnity obligations under this Article IX. Notwithstanding the foregoing, Buyer Indemnified Parties may not seek indemnification from the Stockholders for Losses until (i) the aggregate amount of such Losses exceed one hundred and fifty thousand dollars ($150,000), and after which, Buyer Indemnified Parties may seek indemnification under this Article IX for the full amount of such Losses subject to Section 9.2(e), and (ii) immediately following the end of the Initial Earn-out Period. Notwithstanding anything herein to the contrary, in the event that Buyer Indemnified Party has the right to seek indemnification from the Stockholders under this Section 9.2(a), Buyer Indemnified Parties shall first offset any Losses by deducting the aggregate amount of such Losses from the Initial Earn-out Payment and the Performance Earn-out Payment, if any, and shall not pursue indemnification from individual Stockholders with respect to Initial Merger Consideration unless the amount of fifteen percent (15%) of the Initial Earn-out Payment and one hundred percent (100%) of the Performance Earn-out Payment is less than the aggregate amount of Losses incurred by such Buyer Indemnified Parties. For purposes of determining the amount of any Loss or Losses incurred by Buyer Indemnified Parties pursuant to this Article IX, any representation or warranty of the Company contained in this Agreement or in any certificate or instrument delivered to Buyer pursuant to this Agreement that is required to qualified in scope by materiality (including Material Adverse Effect) shall be satisfied deemed made or performed by given without such qualification. Notwithstanding the Company. 12.1.3 Any deficiencyforegoing, adjustment or assessment for Taxes made against or imposed upon the Buyer Indemnified Parties may not seek indemnification from the Company ESOP or its successors (or any of its predecessors or successorsi) with respect to any period ending on its pro rata share of the Initial Merger Consideration (whether pursuant to either Section 9.2(a) or before (b) below) and (ii) following the Closing Date that is not accrued on Initial Earn-out Period in excess of the Closing Balance Sheetamount of the Total Earn-out Payments, other than Taxes attributable if any, to be paid to the Merger, which, for the avoidance of doubt, shall include any Taxes arising from the Merger, including the failure of the Merger to qualify as a reorganization within the meaning of Section 368(a) of the Code, other than such Taxes arising as a result of actions taken by any Stockholder not expressly contemplated by this Agreement. The right of the Buyer Indemnified Parties to indemnification under this Section 12.1.3 shall not be affected by the fact that such deficiency, adjustment Company ESOP or assessment is made against or imposed upon the Buyer Indemnified Parties as a result of the fact that, after the Closing Date, the Surviving Corporation shall be included in the consolidated federal income tax returns filed by the Buyerits successors. 12.1.4 The Zeiss Matter, as and to the extent set forth on Schedule 12.1.4 hereto. 12.1.5 Any claims by any Stockholder, holder of Company Options or of Dissenting Shares or claims by any other Person, (A) claiming that any amount is owed to such Person other than that portion of the Merger Consideration allocated to such Person pursuant to the Merger Consideration Calculation Statement, or (B) claiming that such Person has an equity interest in Surviving Corporation or Buyer (whether through ownership of capital stock, options, warrants convertible securities or otherwise).

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. (a) Subject to the conditions and limitations expressed in this Section 125.1(b) hereof, the Stockholders, severally but not jointly, Company and the Company (but the Company’s indemnification obligations under this Section 12 shall expire on the Closing) shall indemnifyStockholders hereby agree, defend severally, to indemnify and hold harmless Buyer Telscape and Merger Sub and the Surviving Corporation, and each of their respective officers, directors, employees, agents, representatives and their successors and assigns Newco (each a “Buyer Indemnified Party” or, collectively, “Buyer the "Indemnified Parties”") from against and against any and in respect of all actions, suitsdamages, claims, demandslosses and expenses (including, debtswithout limitation, liabilities, obligations, losses, damages, costs and expenses, including reasonable attorney’s attorneys' fees and court costs, except for attorney’s fees and court costs related to the Zeiss Matter described in Schedule 12.1.4 (“Loss”, or “Losses”), sustained or disbursements) reasonably incurred by a Buyer Indemnified Party, Telscape and Newco (all such amounts may hereinafter be referred to as the "Damages") arising out of of: (i) any misrepresentation or caused by, directly or indirectly, any of the following: 12.1.1 Any misrepresentation, breach or failure of any warranty or representation made by the Company or the Stockholder (as the case may be) pursuant to the provisions of this Agreement or in any statement, certificate or other document furnished by the Company or such Stockholder pursuant to this Agreement. 12.1.2 Any failure ; and (ii) the nonperformance or refusal by the Company to satisfy or perform breach of any covenant, term agreement or condition obligation of the Company or any Stockholder contained in this Agreement or which has not been waived by Telscape and Newco collectively. No Stockholder shall have the right to seek contribution from the Company in the event that such Stockholder is required to make any agreement payments hereunder. (b) The Company and the Stockholders shall be obligated to be executed and delivered indemnify the Indemnified Parties pursuant to this Agreement that is required to be satisfied or performed by the Company. 12.1.3 Any deficiency, adjustment or assessment for Taxes made against or imposed upon the Company (or any of its predecessors or successors) Section 5.1 with respect to any period ending claims for Damages as to which the Indemnified Parties shall have given written notice to the Company and the Stockholders on or before the Closing Date that is not accrued close of business on the sixtieth day following the second anniversary of the Closing Balance SheetDate. The Company and the Stockholders shall be obligated to indemnify the Indemnified Parties with respect to claims for Damages arising out of any misrepresentation or breach of warranty made by the Company or such Stockholder(s), other than Taxes attributable as the case may be, as to which the MergerIndemnified Parties shall have given notice on or before the close of business on the sixtieth day following the later of: (i) the expiration date of the statute of limitations applicable to any indemnified federal, whichstate, for foreign or local tax liability; or (ii) the avoidance final determination of doubt, shall include any Taxes arising from the Mergersuch tax liability, including the failure of the Merger to qualify as a reorganization within the meaning of Section 368(a) of the Code, other than such Taxes arising as a result of actions taken by any Stockholder not expressly contemplated by this Agreement. The right of the Buyer Indemnified Parties to indemnification under this Section 12.1.3 shall not be affected by the fact that such deficiency, adjustment or assessment is made against or imposed upon the Buyer Indemnified Parties as a result of the fact that, after the Closing Date, the Surviving Corporation shall be included in the consolidated federal income tax returns filed by the Buyerfinal administrative and/or judicial determination thereof. 12.1.4 The Zeiss Matter, as and to the extent set forth on Schedule 12.1.4 hereto. 12.1.5 Any claims by any Stockholder, holder of Company Options or of Dissenting Shares or claims by any other Person, (A) claiming that any amount is owed to such Person other than that portion of the Merger Consideration allocated to such Person pursuant to the Merger Consideration Calculation Statement, or (B) claiming that such Person has an equity interest in Surviving Corporation or Buyer (whether through ownership of capital stock, options, warrants convertible securities or otherwise).

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. Subject to (a) The Company and each of the conditions and limitations expressed in this Section 12, the Stockholders, severally but not jointly, and the Company (but the Company’s indemnification obligations under this Section 12 shall expire on the Closing) shall indemnify, defend Stockholders will indemnify and hold harmless Buyer QuadraMed and Merger Sub Acquisition Co. and the Surviving Corporation, and each of their respective officers, directors, agents and employees, agentsand each Person, representatives if any, who controls or may control QuadraMed or Acquisition Co. within the meaning of the Securities Act (each, an "Indemnified Person" and their successors and assigns (each a “Buyer Indemnified Party” or, collectively, “Buyer the "Indemnified Parties”) Persons"), from and against any and all claims, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses ("Losses"), arising out of or relating to any misrepresentation or breach of or default or other action or omission in connection with either (i) any of the representations, warranties and covenants given or made by the Company or the Stockholders in this Agreement, in any exhibit or schedule hereto or any certificate, document or instrument delivered by or on behalf of the Company pursuant hereto, or (ii) any and all actions, suits, claimsclaims or legal, demandsadministrative, debtsarbitration, liabilitiesgovernmental or other proceedings or investigations against any Indemnified Person that relate to the Company or any of the Stockholders in which the principal event giving rise thereto occurred prior to the Closing or which result from or arise out of any action or inaction prior to the Closing of the Stockholders, obligationsthe Company or any director, lossesofficer, damagesemployee, costs and expensesagent, including reasonable attorney’s fees and court costsrepresentative or subcontractor of the Company, except for attorney’s fees and court costs related those which the Surviving Corporation specifically assumes in writing. Any claim for indemnification hereunder must be made on or prior to the Zeiss Matter described in Schedule 12.1.4 (“Loss”, or “Losses”), sustained or incurred by a Buyer Indemnified Party, arising out of or caused by, directly or indirectly, any expiration of the following: 12.1.1 Any misrepresentationSurvival Period; provided, breach however, that any claim made prior to such expiration shall continue until such claim is finally determined or failure of any warranty or representation made by the Company in or pursuant to this Agreementsettled. 12.1.2 Any failure or refusal by (b) Notwithstanding the Company to satisfy or perform any covenantforegoing, term or condition of this Agreement or any agreement to be executed and delivered pursuant to this Agreement that is required to be satisfied or performed by the Company. 12.1.3 Any deficiency, adjustment or assessment for Taxes made against or imposed upon the Company (or any of its predecessors or successors) Stockholders shall have no liability with respect to any period ending on the matters described in paragraph (a) above unless and until the aggregate amount of Losses equal or before exceed $25,000 (the "Threshold Amount"). At such time as the aggregate Losses equal or exceed the Threshold Amount, QuadraMed and/or Acquisition Co. shall be indemnified to the full extent of all such Losses (including Losses counted in determining whether the aggregate Losses equal or exceed the Threshold Amount); provided, (c) As security for their obligation to indemnify QuadraMed and/or Acquisition Co. hereunder, concurrently with payment of the Closing Date that is not accrued on Consideration by QuadraMed, the Stockholders shall place into escrow from the Closing Balance Sheet, other than Taxes attributable Consideration that number of QuadraMed Shares equal to $415,000 (the Merger, which, for the avoidance of doubt, shall include any Taxes arising from the Merger, including the failure of the Merger to qualify as a reorganization within the meaning of Section 368(a"Escrow Shares") of the Code, other than such Taxes arising as a result of actions taken by any Stockholder not expressly contemplated by this Agreement. The right of the Buyer Indemnified Parties to indemnification under this Section 12.1.3 shall not be affected by the fact that such deficiency, adjustment or assessment is made against or imposed upon the Buyer Indemnified Parties as a result of the fact that, after the Closing Date, the Surviving Corporation shall be included in the consolidated federal income tax returns filed by the Buyer. 12.1.4 The Zeiss Matter, as and to the extent set forth on Schedule 12.1.4 hereto. 12.1.5 Any claims by any Stockholder, holder of Company Options or of Dissenting Shares or claims by any other Person, (A) claiming that any amount is owed to such Person other than that portion of the Merger Consideration allocated to such Person pursuant to the Merger Consideration Calculation Statementterms and conditions of that certain Escrow Agreement substantially in the form attached hereto as Exhibit "G" and incorporated herein by this reference, or (B) claiming that such Person has an equity interest to be held in Surviving Corporation or Buyer (whether through ownership escrow until the expiration of capital stock, options, warrants convertible securities or otherwise)the Survival Period as security for the indemnification obligations of the Stockholders hereunder.

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. (a) Subject to the conditions and limitations expressed in this of Section 122(b), the StockholdersCompany, severally prior to the Effective Time agrees, and all of the holders of the Company's securities (including but not jointlylimited to holders of capital stock, warrants and/or options) (the "Stockholders"), jointly and severally, after the Effective Time agree, to indemnify in full Purchaser, Merger Subsidiary and the Company (but the Company’s indemnification obligations under this Section 12 shall expire on the Closing) shall indemnify, defend and hold harmless Buyer and Merger Sub and the Surviving Corporation, and each of their respective officers, directors, employees, agents, representatives agents and their successors and assigns shareholders (each a “Buyer Indemnified Party” or, collectively, “Buyer the "Purchaser Indemnified Parties”") from and hold them harmless against any and all actionsloss, suitsliability, claimsdeficiency, demandsdamage, debts, liabilities, obligations, losses, damages, costs and expenses, expense or cost (including reasonable attorney’s fees and court costslegal expenses), except for attorney’s fees and court costs related actually incurred or paid (collectively, "Losses"), which Purchaser Indemnified Parties may suffer, sustain or become subject to, prior to the Zeiss Matter described first anniversary of the Effective Time, as a result of (i) any misrepresentation in Schedule 12.1.4 (“Loss”, or “Losses”), sustained or incurred by a Buyer Indemnified Party, arising out of or caused by, directly or indirectly, any of the following: 12.1.1 Any misrepresentationrepresentations and warranties of the Company contained in the Merger Agreement or in any exhibits, schedules, certificates or other documents delivered or to be delivered by or on behalf of the Company pursuant to the terms of the Merger Agreement or otherwise referenced or incorporated in the Merger Agreement (collectively, the "Company Documents") or (ii) any breach of, or failure to perform, any agreement or covenant of any warranty or representation made by the Company or the Stockholders contained in or pursuant to this the Merger Agreement. 12.1.2 Any failure or refusal by , the Company to satisfy or perform any covenantVoting Agreement, term or condition of this Agreement or any agreement of the Company Documents (collectively, "Purchaser Losses"). (b) The Company and the Stockholders will be liable to the Purchaser Indemnified Parties for any Purchaser Losses (i) only if Purchaser Indemnified Parties deliver to the Company and the Stockholders written notice, setting forth in reasonable detail the identity, nature and amount of Purchaser Losses related to such claim or claims prior to the first anniversary of the Effective Time and (ii) only if the aggregate amount of all Purchaser Losses exceeds One Million Dollars ($1,000,000) (the "Basket Amount"), in which case the Company and the Stockholders shall be executed and delivered pursuant obligated to indemnify the Purchaser Indemnified Parties for the excess of the aggregate amount of all such Purchaser Losses over the Basket Amount. A Purchaser Indemnified Party's failure to provide the detail required by clause (i) in the preceding sentence shall not constitute either a breach of this Agreement that is required to be satisfied or performed by the Company. 12.1.3 Any deficiency, adjustment Purchaser Indemnified Party or assessment any basis for Taxes made against or imposed upon the Company (or any the Stockholders to assert that a Purchaser Indemnified Party did not comply with the terms of this Section 2 sufficient to cause the Purchaser Indemnified Party to have waived its predecessors or successors) with respect to any period ending on or before the Closing Date that is not accrued on the Closing Balance Sheet, other than Taxes attributable to the Merger, which, for the avoidance of doubt, shall include any Taxes arising from the Merger, including the failure of the Merger to qualify as a reorganization within the meaning of Section 368(a) of the Code, other than such Taxes arising as a result of actions taken by any Stockholder not expressly contemplated by this Agreement. The right of the Buyer Indemnified Parties to indemnification rights under this Section 12.1.3 2. Notwithstanding the foregoing, the Company and the Stockholders shall not be affected by liable for Purchaser Losses that cannot be satisfied from the fact that such deficiency, adjustment or assessment is made against or imposed upon the Buyer Indemnified Parties as a result proceeds of the fact that, after the Closing Date, the Surviving Corporation shall be included in the consolidated federal income tax returns filed by the Buyer. 12.1.4 The Zeiss Matter, as and to the extent set forth on Schedule 12.1.4 hereto. 12.1.5 Any claims by any Stockholder, holder of Company Options or of Dissenting Parent Shares or claims by any other Person, (A) claiming that any amount is owed to such Person other than that portion of the Merger Consideration allocated to such Person held pursuant to the Merger Consideration Calculation Statement, or (B) claiming that such Person has an equity interest in Surviving Corporation or Buyer (whether through ownership of capital stock, options, warrants convertible securities or otherwise)Escrow Agreement.

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. Subject to the conditions and limitations expressed in this Section 12, the Stockholders, severally but not jointly, The Company and the Company (but the Company’s indemnification obligations under this Section 12 Stockholders unconditionally, absolutely and irrevocably agree to and shall expire on the Closing) shall indemnifydefend, defend indemnify and hold harmless Buyer and Merger Sub and the Surviving CorporationPurchaser, and each of their respective Purchaser's subsidiaries, stockholders, Affiliates, officers, directors, employees, counsel, agents, successors, assigns, heirs and legal and personal representatives (Purchaser and their successors and assigns (each a “Buyer all such other Persons are collectively referred to as the "Purchaser's Indemnified Party” or, collectively, “Buyer Indemnified Parties”Persons") from and against any against, and all actionsshall reimburse the Purchaser's Indemnified Persons for, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs each and expenses, including reasonable attorney’s fees and court costs, except for attorney’s fees and court costs related to the Zeiss Matter described every Loss (as defined in Schedule 12.1.4 (“Loss”, or “Losses”Section 10.13), sustained paid, imposed on or incurred by a Buyer the Purchaser's Indemnified Party, arising out of or caused byPersons, directly or indirectly, relating to, resulting from or arising out of, or any allegation by any third party of any inaccuracy in any representation or warranty of the following: 12.1.1 Any misrepresentationCompany under this Agreement, breach or failure of the Schedules hereto or any warranty agreement or representation made certificate delivered or to be delivered by the Company pursuant hereto in any respect (except for representations or pursuant to this Agreement. 12.1.2 Any failure covenants made by individual Stockholders in the Stockholders' Letters or refusal Affiliates Letters, as applicable, which shall be governed by the Company indemnification provisions set forth therein), in each case without regard to satisfy any applicable materiality thresholds, whether or perform not the Purchaser's Indemnified Persons relied thereon or had knowledge thereof, or any breach or nonfulfillment of any covenant, term agreement or condition other obligation of the Company or the Stockholders under this Agreement or any agreement to be executed and delivered pursuant hereto. With respect to this Agreement that matters not involving Proceedings commenced or threatened by third parties, within five days after notification to the Stockholders' Representative from the Purchaser's Indemnified Persons supported by reasonable documentation setting forth the nature of the circumstances entitling the Purchaser's Indemnified Persons to indemnity hereunder (including, but not limited to, references to the provisions hereof upon which the Purchaser's Indemnified Person is required relying in making such claim), the Stockholders' Representative, at no cost or expense to be satisfied or performed by the Company. 12.1.3 Any deficiencyPurchaser's Indemnified Persons, adjustment or assessment for Taxes made against or imposed upon shall diligently commence resolution of such matters in a manner reasonably acceptable to the Company (Purchaser's Indemnified Persons and shall diligently and timely prosecute such resolution to completion. If litigation or any of its predecessors other Proceeding is commenced or successors) with respect to any period ending on or before threatened, the Closing Date that is not accrued on the Closing Balance Sheet, other than Taxes attributable to the Merger, which, for the avoidance of doubt, shall include any Taxes arising from the Merger, including the failure of the Merger to qualify as a reorganization within the meaning provisions of Section 368(a) of the Code, other than such Taxes arising as a result of actions taken by any Stockholder not expressly contemplated by this Agreement. The right of the Buyer Indemnified Parties to indemnification under this Section 12.1.3 9.3 shall not be affected by the fact that such deficiency, adjustment or assessment is made against or imposed upon the Buyer Indemnified Parties as a result of the fact that, after the Closing Date, the Surviving Corporation shall be included in the consolidated federal income tax returns filed by the Buyercontrol. 12.1.4 The Zeiss Matter, as and to the extent set forth on Schedule 12.1.4 hereto. 12.1.5 Any claims by any Stockholder, holder of Company Options or of Dissenting Shares or claims by any other Person, (A) claiming that any amount is owed to such Person other than that portion of the Merger Consideration allocated to such Person pursuant to the Merger Consideration Calculation Statement, or (B) claiming that such Person has an equity interest in Surviving Corporation or Buyer (whether through ownership of capital stock, options, warrants convertible securities or otherwise).

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. (a) Subject to the conditions Sections 5.1(b) and limitations expressed in this Section 125.1(c) hereof, the StockholdersStockholders hereby agree, severally but not jointly, and the Company (but the Company’s indemnification obligations under this Section 12 shall expire on the Closing) shall indemnify, defend to indemnify and hold harmless Buyer THINK against and Merger Sub and the Surviving Corporation, and each in respect of their respective officers, directors, employees, agents, representatives and their successors and assigns (each a “Buyer Indemnified Party” or, collectively, “Buyer Indemnified Parties”) from and against any and all actions, suitsdamages, claims, demandslosses and expenses (including, debtswithout limitation, liabilities, obligations, losses, damages, costs and expenses, including reasonable attorney’s attorneys' fees and court costs, except for attorney’s fees and court costs related to the Zeiss Matter described in Schedule 12.1.4 (“Loss”, or “Losses”), sustained or disbursements) reasonably incurred by a Buyer Indemnified Party, THINK (all such amounts may hereinafter be referred to as the "Damages") arising out of of: (i) any misrepresentation or caused by, directly or indirectly, any of the following: 12.1.1 Any misrepresentation, breach or failure of any representation or warranty or representation made by the Company or the Stockholders pursuant to the provisions of this Agreement or in any statement, certificate or other document furnished by the Company or the Stockholders pursuant to this Agreement; and (ii) the nonperformance or breach of any covenant, agreement or obligation of the Company or the Stockholders contained in this Agreement which has not been waived by THINK in writing. The Stockholders shall have no right to seek contribution from the Company in the event that they are required to make any payments hereunder. 12.1.2 (b) Until the close of business on the Anniversary Date and subject to Section 3.3 hereof, the Stockholders shall be obligated to indemnify THINK pursuant to this Section 5.1 with respect to claims for Damages as to which THINK shall have given written notice to the Company and the Stockholders on or before: (i) the close of business on the sixtieth (60th) day following discovery by THINK of the facts upon which a claim for indemnification is being made; or (ii) if the claim for indemnification relates to assertions made by a third party, the close of business on the thirtieth (30th) day following receipt of notice by a third party of a claim for indemnification by such party (a "Third Party Claim"). Any failure such notice shall describe the nature of the claim for Damages, the provisions of this Agreement upon which such claim is based and the amount of the Damages, if then ascertainable or refusal if not then ascertainable, an estimate thereof. The Stockholders shall be obligated to indemnify THINK with respect to claims for Damages arising out of any misrepresentation or breach of warranty made by the Company or the Stockholders relating to satisfy or perform any covenant, term or condition of this Agreement or any agreement Subsection 3.1(q) as to be executed and delivered pursuant to this Agreement that is required to be satisfied or performed by the Company. 12.1.3 Any deficiency, adjustment or assessment for Taxes made against or imposed upon the Company (or any of its predecessors or successors) with respect to any period ending which THINK shall have given notice on or before the Closing Date that is not accrued close of business on the Closing Balance Sheetsixtieth (60th) day following the later of: (i) the expiration date of the statute of limitations applicable to any indemnified federal, other than Taxes attributable to state, foreign or local tax liability; or (ii) the Merger, which, for the avoidance final determination of doubt, shall include any Taxes arising from the Mergersuch tax liability, including the failure final administrative and/or judicial determination thereof. (c) Notwithstanding the indemnification provided pursuant to Subsection 5.1 (a) and 5.1(b) above, no amount shall be payable by the Stockholders in indemnification hereunder or under any other provision of this Agreement unless the aggregate amount of such Damages in respect of which the Company or the Stockholders would be liable, but for operation and application of the Merger to qualify as a reorganization within the meaning provisions of Section 368(a) of the Code, other than such Taxes arising as a result of actions taken by any Stockholder not expressly contemplated by this Agreement. The right of the Buyer Indemnified Parties to indemnification under this Section 12.1.3 5.1(c), exceeds on a cumulative basis Fifty Thousand Dollars ($50,000) and then only to the extent of such excess; PROVIDED, HOWEVER, that the Stockholders shall not be affected by the fact that such deficiency, adjustment or assessment is liable for claims made against or imposed upon the Buyer Indemnified Parties as a result in excess of the fact that, after value of the Closing Date, the Surviving Corporation shall be THINK Stock included in the consolidated federal income tax returns filed by Purchase Price (the Buyer. 12.1.4 The Zeiss Matter, as "Cap") and to the extent set forth on Schedule 12.1.4 hereto. 12.1.5 Any claims by any Stockholder, holder of Company Options or of Dissenting Shares or claims by any other Person, (A) claiming that any amount is owed to each such Person other than Stockholder shall be liable for his pro rata portion thereof based upon that portion of the Merger Consideration allocated total Purchase Price he is entitled to such Person receive pursuant to Sections 1.2 hereof. The value of the Merger Consideration Calculation StatementTHINK Stock for purposes of application of this section shall be determined by multiplying the number of shares of THINK Stock included in the Purchase Price by the average of the closing transaction price per share of THINK Stock for the twenty (20) trading days immediately prior to the date of the notice of claim. (d) Notwithstanding the foregoing, there shall be no Cap and the Company shall be entitled to full indemnification by the Stockholders with respect to claims involving employment matters, environmental matters, tax matters and intellectual property matters. (e) In any case where the Stockholders have indemnified THINK for any Damages and THINK recovers from a third party all or (B) claiming that such Person has an equity interest in Surviving Corporation or Buyer (whether through ownership any part of capital stockthe amount so indemnified by the Stockholders, options, warrants convertible securities or otherwise)THINK shall promptly reimburse to the Stockholders the amount so recovered.