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

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. (a) Subject to SECTION 8.03 and SECTION 9.01(b), from and after the Closing, the Company and each Stockholder agree, jointly and severally, to indemnify, defend and save TMP, the Surviving Corporation and their Affiliates, and each of their respective officers, directors, employees, agents, employee benefit plans and fiduciaries, plan administrators or other parties dealing with any such plans (each, an "INDEMNIFIED TMP PARTY"), harmless from and against, and to promptly pay to an Indemnified TMP Party or reimburse an Indemnified TMP Party for, any and all liabilities (whether contingent, fixed or unfixed, liquidated or unliquidated, or otherwise), obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses, interest, fines, penalties, actual or punitive damages or costs or expenses of any and all investigations, proceedings, judgments, environmental analyses, remediations, settlements and compromises (including reasonable fees and expenses of attorneys, accountants and other experts incurred by any indemnified party in any action or proceeding between such indemnified party and the indemnitor or between any indemnified party and any third party or otherwise) (individually a "LOSS" and collectively, the "LOSSES") sustained or incurred by any Indemnified TMP Party relating to, resulting from, arising out of or otherwise by virtue of (i) any misrepresentation or breach of a representation or warranty made herein by the Company or any Stockholder, (ii) any non-compliance with or breach by the Company or any Stockholder, or any Affiliate of the Company or any Stockholder, of any of their respective covenants or agreements contained in this Agreement or the Transaction Documents to be performed by the Company, any Stockholder, or any Affiliate of the Company or any Stockholder, (iii) allegations by a third party that is not an Indemnified TMP Party which, if true, would constitute a misrepresentation or breach of a representation or warranty made herein by the Company or any Stockholder or non-compliance with or breach by the Company or any Stockholder of any of their respective covenants or agreements contained in this Agreement or the Transaction Documents to be performed by any Stockholder, the Company or any or their respective Affiliates, (iv) any claims, suits, actions, complaints, allegations or demands which have been or may be brought against the Company, any of the Stockholders, TMP, TMP Sub and their respective Affiliates and any of their respective officers, directors, employees or agents, including by the Specified Entity (as defined below), relating to the Specified Entity or arising from similar facts and circumstances as any claims brought by the Specified Entity or relating to the contracts with brokers identified on SCHEDULE 3.13, (v) any amounts required to be paid to holders of Dissenting Shares in excess of the amount that such holders would have been paid pursuant to SECTION 2.03 hereof, and (vi) Taxes owed by the Company pursuant to SECTION 8.06 hereof. (b) Notwithstanding SECTION 9.01(a), no Indemnified TMP Party shall be entitled to indemnification under this SECTION 9.01 until the total Losses under SECTION 9.01(a) shall exceed $100,000 (the "INDEMNIFICATION THRESHOLD"). Once total Losses under SECTION 9.01(a) exceed the Indemnification Threshold, each Indemnified TMP Party shall be entitled to indemnification for the full amount of any and all such Losses, including the first $100,000 of Losses applied to the Indemnification Threshold. The aggregate maximum amount of Losses for which all Stockholders shall be liable pursuant to SECTION 9.01 hereof shall be 40% of the Adjusted Merger Consideration (100% of the Adjusted Merger Consideration with respect to breaches of SECTIONS 3.25, 3.36 and 3.37, hereof); it being agreed and understood that each Stockholder shall be so liable for such Stockholder's proportionate share (based on the proportion of the TMP Shares received by such Stockholder hereunder to the total number of TMP Shares issued hereunder) of any individual Loss. The Indemnification Threshold shall not apply to any Loss related to the Specified Entity or arising out of a breach of a representation or warranty made in SECTIONS 3.05, 3.25 and 3.30; in the event of such Loss or breach by the Company or any Stockholder, the Indemnified TMP Party shall be entitled to full recovery of all Losses under SECTION 9.01(a). (c) If the Indemnified TMP Party is TMP, the Surviving Corporation or another non-natural person Affiliate of TMP, then the Stockholders shall be entitled, at their sole option, to satisfy their indemnification obligations under this SECTION 9.01 by surrending that number of TMP Shares obtained by dividing (i) the amount of such indemnification obligation by (ii) the Imputed TMP Share Value.

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. (a) Subject to SECTION 8.03 and SECTION 9.01(b), from and after the Closing, the The Company and each Stockholder agree, of the Stockholders shall jointly and severallyseverally indemnify and hold harmless Veeco, to indemnify, defend and save TMP, the Surviving Corporation and their Affiliates, Acquisition and each of their respective agents, representatives, employees, officers, directors, employeesstockholders, agents, employee benefit plans controlling persons and fiduciaries, plan administrators or other parties dealing with any such plans Affiliates (each, an "INDEMNIFIED TMP PARTY"), harmless from and against, and to promptly pay to an Indemnified TMP Party or reimburse an Indemnified TMP Party for, any and all liabilities (whether contingent, fixed or unfixed, liquidated or unliquidated, or otherwise), obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses, interest, fines, penalties, actual or punitive damages or costs or expenses of any and all investigations, proceedings, judgments, environmental analyses, remediations, settlements and compromises (including reasonable fees and expenses of attorneys, accountants and other experts incurred by any indemnified party in any action or proceeding between such indemnified party and the indemnitor or between any indemnified party and any third party or otherwise) (individually a "LOSS" and collectively, the "LOSSESVEECO INDEMNITEES"), and shall reimburse the Veeco Indemnitees for, any loss, liability, claim, damage, expense (including, but not limited to, costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-party claim (collectively, "DAMAGES") sustained arising from or incurred in connection with (a) any inaccuracy in any of the representations and warranties of any Stockholder or the Company in this Merger Agreement or in any certificate or other document required to be delivered by any Indemnified TMP Party Stockholder or the Company pursuant to this Merger Agreement, (b) any failure of any Stockholder or the Company to perform or comply with any agreement to be performed or complied with by it in this Merger Agreement, (c) any claim by any Person for brokerage or finder's fees or similar payments in connection with any of the transactions contemplated hereunder as the result of brokers, finders or investment bankers retained by any Stockholder or the Company, (d) any claim by any direct or indirect holder or former holder of capital stock or warrants or other securities of the Company in his or her capacity as such, (e) any Damages arising from or relating toto any Environmental Liabilities, resulting fromregardless of by whom caused, arising out of or otherwise by virtue of (i) any misrepresentation or breach violation of a representation or warranty made herein by any Environmental Laws existing as of the Company or any StockholderClosing Date in respect of the Owned Real Property, (ii) any non-compliance with emission, migration, Release, indirect or breach by direct discharge from the Company Owned Real Property to any adjacent property occurring prior to the Closing Date regardless of where such activities occurred or any Stockholder, had their effect or any Affiliate of from offsite locations to which Hazardous Substances were transported from the Company or any Stockholder, of any of their respective covenants or agreements contained in this Agreement or the Transaction Documents to be performed by the Company, any Stockholder, or any Affiliate of the Company or any StockholderOwned Real Property, (iii) allegations any disposal, dumping, burial of, or the hauling, transportation, treatment or removal of any Hazardous Substances from the Owned Real Property prior to the Closing Date, (iv) any claim or demand by any Governmental Authority for any response actions at the Owned Real Property, including, without limitation, remediation of the Owned Real Property, required by applicable Environmental Laws relating to Hazardous Substances present at the Owned Real Property prior to the Closing Date in soil, surface waters, sediment, wetlands or ground waters or for injury or damage or claim of injury or damage to natural resources caused by such Hazardous Substances and (v) any injury or damage or claim of injury or damage to any Person or property, including, but not limited to, claims for medical surveillance, emotional distress, increased risk of illness or disease or diminution in the value of property related to such Hazardous Substances present at the Owned Real Property prior to the Closing Date except, in all of the foregoing cases, for Environmental Liabilities caused solely by the actions of Veeco, Acquisition or the Company or their invitees after the Closing Date or (f) Veeco's enforcement of the indemnification provisions contained herein. Notwithstanding the foregoing, the Company and the Stockholders shall only be liable under Section 8.02(e) with respect to periods prior to or after the Company's occupancy or ownership of the Owned Real Property to the extent that the Company had knowledge of such violation. Notwithstanding the foregoing, the Company and the indemnifying Stockholders shall have no liability to Veeco or Acquisition under clause (a), (b), (d) or (e) of this Section 8.02 until the aggregate amount of all Damages under such clauses exceeds $6,667, and then for all such Damages without deduction. Notwithstanding the foregoing, the maximum liability of the Stockholders pursuant to this Section 8.02 shall not exceed the 6,573 Veeco Shares placed in escrow pursuant to the Escrow Agreement; PROVIDED that the limitations set forth in this Section 8.02 shall not apply to the extent of Damages arising from fraud. The Company's obligation to indemnify the Veeco Indemnitees under this Section 8.02 after the Closing shall be satisfied solely out of the Veeco Shares deposited under the Escrow Agreement. If the Veeco Shares so deposited are not adequate to satisfy any claim by a third party that is not an Indemnified TMP Party whichVeeco Indemnitee, if true, would constitute a misrepresentation or breach of a representation or warranty made herein by such Veeco Indemnitee shall have no further right to recover from the Company or any Stockholder or non-compliance with or breach by and shall have no further claim against the Company or any Stockholder of except to the extent any of their respective covenants Damages incurred or agreements contained in this Agreement or the Transaction Documents to be performed claim made by any Stockholder, the Company or any or their respective Affiliates, (iv) any claims, suits, actions, complaints, allegations or demands which have been or may be brought against the Company, any of the Stockholders, TMP, TMP Sub and their respective Affiliates and any of their respective officers, directors, employees Veeco Indemnitees arises from or agents, including by relates to fraud on the Specified Entity (as defined below), relating to the Specified Entity or arising from similar facts and circumstances as any claims brought by the Specified Entity or relating to the contracts with brokers identified on SCHEDULE 3.13, (v) any amounts required to be paid to holders of Dissenting Shares in excess of the amount that such holders would have been paid pursuant to SECTION 2.03 hereof, and (vi) Taxes owed by the Company pursuant to SECTION 8.06 hereof. (b) Notwithstanding SECTION 9.01(a), no Indemnified TMP Party shall be entitled to indemnification under this SECTION 9.01 until the total Losses under SECTION 9.01(a) shall exceed $100,000 (the "INDEMNIFICATION THRESHOLD"). Once total Losses under SECTION 9.01(a) exceed the Indemnification Threshold, each Indemnified TMP Party shall be entitled to indemnification for the full amount part of any and all such Losses, including the first $100,000 of Losses applied to the Indemnification Threshold. The aggregate maximum amount of Losses for which all Stockholders shall be liable pursuant to SECTION 9.01 hereof shall be 40% of the Adjusted Merger Consideration (100% of the Adjusted Merger Consideration with respect to breaches of SECTIONS 3.25, 3.36 and 3.37, hereof); it being agreed and understood that each Stockholder shall be so liable for such Stockholder's proportionate share (based on the proportion of the TMP Shares received by such Stockholder hereunder to the total number of TMP Shares issued hereunder) of any individual Loss. The Indemnification Threshold shall not apply to any Loss related to the Specified Entity or arising out of a breach of a representation or warranty made in SECTIONS 3.05, 3.25 and 3.30; in the event of such Loss or breach by the Company or any Stockholder, the Indemnified TMP Party shall be entitled to full recovery of all Losses under SECTION 9.01(a). (c) If the Indemnified TMP Party is TMP, the Surviving Corporation or another non-natural person Affiliate of TMP, then the Stockholders shall be entitled, at their sole option, to satisfy their indemnification obligations under this SECTION 9.01 by surrending that number of TMP Shares obtained by dividing (i) the amount of such indemnification obligation by (ii) the Imputed TMP Share Value.

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. (a) Subject to SECTION 8.03 and SECTION 9.01(b), from and after the Closing, the The Company and each Stockholder agree, of the Party Stockholders shall jointly and severallyseverally indemnify and hold harmless Veeco, to indemnify, defend and save TMP, the Surviving Corporation and their Affiliates, Acquisition and each of their respective agents, representatives, employees, officers, directors, employeesstockholders, agents, employee benefit plans controlling persons and fiduciaries, plan administrators or other parties dealing with any such plans Affiliates (each, an "INDEMNIFIED TMP PARTY"), harmless from and against, and to promptly pay to an Indemnified TMP Party or reimburse an Indemnified TMP Party for, any and all liabilities (whether contingent, fixed or unfixed, liquidated or unliquidated, or otherwise), obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses, interest, fines, penalties, actual or punitive damages or costs or expenses of any and all investigations, proceedings, judgments, environmental analyses, remediations, settlements and compromises (including reasonable fees and expenses of attorneys, accountants and other experts incurred by any indemnified party in any action or proceeding between such indemnified party and the indemnitor or between any indemnified party and any third party or otherwise) (individually a "LOSS" and collectively, the "LOSSESVEECO INDEMNITEES"), and shall reimburse the Veeco Indemnitees for, any loss, liability, claim, damage, expense (including, but not limited to, costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-party claim (collectively, "DAMAGES") sustained arising from or incurred in connection with (a) any inaccuracy in any of the representations and warranties of any Party Stockholder or the Company in this Merger Agreement or in any certificate or other document required to be delivered by any Indemnified TMP Party Stockholder or the Company pursuant to this Merger Agreement, (b) any failure of any Stockholder or the Company to perform or comply with any agreement to be performed or complied with by it in this Merger Agreement, (c) except as set forth on SCHEDULE 3.22, any claim by any Person for brokerage or finder's fees or similar payments in connection with any of the transactions contemplated hereunder as the result of brokers, finders or investment bankers retained by any Stockholder or the Company, (d) any claim by any direct or indirect holder or former holder of capital stock or warrants or other securities of the Company in his or her capacity as such, (e) any Damages arising from or relating toto any Environmental Liabilities, resulting fromregardless of by whom caused, arising out of or otherwise by virtue of (i) any misrepresentation violation of any Environmental Laws existing as of the Closing Date in respect of any premises now or breach of a representation previously owned or warranty made herein occupied by the Company or any StockholderCompany, (ii) any non-compliance with emission, migration, Release, indirect or breach by direct discharge from any such premises to any adjacent property occurring prior to the Company Closing Date regardless of where such activities occurred or any Stockholder, had their effect or any Affiliate of the Company or any Stockholder, of any of their respective covenants or agreements contained in this Agreement or the Transaction Documents from offsite locations to be performed by the Company, any Stockholder, or any Affiliate of the Company or any Stockholderwhich Hazardous Substances were transported from such premises, (iii) allegations by a third party that is not an Indemnified TMP Party whichany disposal, if truedumping, would constitute a misrepresentation burial of, or breach of a representation the hauling, transportation, treatment or warranty made herein by the Company or any Stockholder or non-compliance with or breach by the Company or any Stockholder removal of any of their respective covenants or agreements contained in this Agreement or Hazardous Substances from any such premises prior to the Transaction Documents to be performed by any Stockholder, the Company or any or their respective AffiliatesClosing Date, (iv) any claimsclaim or demand by any Governmental Authority for any response actions at any such premises, suitsincluding, actionswithout limitation, complaintsremediation of any such premises, allegations required by applicable Environmental Laws relating to Hazardous Substances present at any such premises prior to the Closing Date in soil, surface waters, sediment, wetlands or demands which have been ground waters or may be brought for injury or damage or claim of injury or damage to natural resources caused by such Hazardous Substances and (v) any injury or damage or claim of injury or damage to any Person or property, including, but not limited to, claims for medical surveillance, emotional distress, increased risk of illness or disease or diminution in the value of property related to such Hazardous Substances present at any such premises prior to the Closing Date except, in all of the foregoing cases, for Environmental Liabilities caused solely by the actions of Veeco, Acquisition or the Company or their invitees after the Closing Date, (f) all Damages (including, without limitation, any fines, penalties or voluntary compliance fees) arising, directly or indirectly, from or in connection with any claim against the Company, Veeco, Acquisition or any Benefit Plan (or a director, officer or employee of any one of them), including, without limitation, any claim that any Benefit Plan that is intended to be "qualified" under Section 401(a) of the StockholdersCode is or was not so qualified at any time, TMPthat is attributable to (i) the establishment, TMP Sub and their respective Affiliates and maintenance, operation and/or termination of any of their respective officers, directors, employees or agents, including by the Specified Entity (as defined below), relating to the Specified Entity or arising from similar facts and circumstances as any claims brought by the Specified Entity or relating to the contracts with brokers identified on SCHEDULE 3.13, (v) any amounts required to be paid to holders of Dissenting Shares in excess of the amount that such holders would have been paid pursuant to SECTION 2.03 hereof, and (vi) Taxes owed Benefit Plan by the Company pursuant to SECTION 8.06 hereof. (b) Notwithstanding SECTION 9.01(a), no Indemnified TMP Party shall be entitled to indemnification under this SECTION 9.01 until the total Losses under SECTION 9.01(a) shall exceed $100,000 (the "INDEMNIFICATION THRESHOLD"). Once total Losses under SECTION 9.01(a) exceed the Indemnification Threshold, each Indemnified TMP Party shall be entitled to indemnification for the full amount of at any and all such Losses, including the first $100,000 of Losses applied time prior to the Indemnification ThresholdClosing, or (ii) any inaccuracy in the representations and warranties in Section 3.14(e) and (i) of this Merger Agreement or (g) Veeco's enforcement of the indemnification provisions contained herein. The aggregate maximum amount of Losses for which all Notwithstanding the foregoing, the Company and the Stockholders shall only be liable pursuant to SECTION 9.01 hereof shall be 40% of the Adjusted Merger Consideration (100% of the Adjusted Merger Consideration under Section 8.02(e) with respect to breaches periods prior to or after the Company's occupancy or ownership of SECTIONS 3.25any such premises to the extent that the Company had knowledge of such violation (which shall mean actual knowledge without inquiry in the case of any such premises other than the premises located at 0000 Xxxx Xxxxxxxx, 3.36 Xxxx Xxxxxxx, Colorado 80525). Notwithstanding the foregoing, the Company and 3.37the indemnifying Stockholders shall have no liability to Veeco or Acquisition under clause (a), hereof(b); it being agreed , (d), (e) or (f) of this Section 8.02 until the aggregate amount of all Damages under such clauses exceeds $143,333, and understood that each Stockholder shall be so liable then for all such Stockholder's proportionate share (based on Damages without deduction. Notwithstanding the proportion foregoing, the maximum liability of the TMP Stockholders pursuant to this Section 8.02 shall not exceed the 144,371 Veeco Shares received by such Stockholder hereunder placed in escrow pursuant to the total number of TMP Shares issued hereunder) of any individual Loss. The Indemnification Threshold Escrow Agreement; PROVIDED that the limitations set forth in this Section 8.02 shall not apply to any Loss related the extent of Damages arising from fraud. The obligations of the Company and the Party Stockholders to indemnify the Specified Entity or arising Veeco Indemnitees under this Section 8.02 after the Closing shall be satisfied solely out of the Veeco Shares deposited under the Escrow Agreement. If the Veeco Shares so deposited are not adequate to satisfy any claim by a breach of a representation or warranty made in SECTIONS 3.05Veeco Indemnitee, 3.25 and 3.30; in the event of such Loss or breach by Veeco Indemnitee shall have no further right to recover from the Company or any Party Stockholder and shall have no further claim against the Company or any Party Stockholder except to the extent any Damages incurred or claim made by any of the Veeco Indemnitees arises from or relates to fraud on the part of any Party Stockholder, the Indemnified TMP Party shall be entitled to full recovery of all Losses under SECTION 9.01(a). (c) If the Indemnified TMP Party is TMP, the Surviving Corporation or another non-natural person Affiliate of TMP, then the Stockholders shall be entitled, at their sole option, to satisfy their indemnification obligations under this SECTION 9.01 by surrending that number of TMP Shares obtained by dividing (i) the amount of such indemnification obligation by (ii) the Imputed TMP Share Value.

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. The Company and each of the Company Stockholders shall jointly and severally indemnify and hold harmless Veeco, Acquisition and each of their respective agents, representatives, employees, officers, directors, stockholders, controlling persons and Affiliates (collectively, the "VEECO INDEMNITEES"), and shall reimburse the Veeco Indemnitees for, any loss, liability, claim, damage, expense (including, but not limited to, costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-party claim (collectively, "DAMAGES") arising from or in connection with (a) Subject any inaccuracy in any of the representations and warranties of any Company Stockholder or the Company in this Merger Agreement or in any certificate or other document required to SECTION 8.03 be delivered by any Company Stockholder or the Company pursuant to this Merger Agreement, (b) any failure of any Company Stockholder or the Company to perform or comply with any agreement to be performed or complied with by it in this Merger Agreement, (c) any claim by any Person for brokerage or finder's fees or similar payments in connection with any of the transactions contemplated hereunder as the result of brokers, finders or investment bankers retained by any Stockholder or the Company, (d) any claim by any direct or indirect holder or former holder of capital stock or warrants or other securities of the Company in his or her capacity as such, (e) any Damages resulting from the election by any Stockholder, pursuant to the MBCA, to demand appraisal of their Company Common Stock in excess of the aggregate amount of Merger Consideration such Stockholder would have been entitled to receive pursuant to this Merger Agreement, or (f) Veeco's enforcement of the indemnification provisions contained herein. Notwithstanding the foregoing, the Company and SECTION 9.01(bthe indemnifying Company Stockholders shall have no liability to Veeco or Acquisition under clause (a), (b) (other than any failure to comply with the covenant contained in Section 5.03(b)) or (d) of this Section 8.02, until the aggregate amount of all Damages under such clauses exceeds $850,000, and then for all such Damages in excess of such amount. Notwithstanding the foregoing, during the Escrow Period, the maximum liability of the Company Stockholders pursuant to this Section 8.02 shall not exceed the Veeco Shares placed in escrow pursuant to the Escrow Agreement plus $7.3 million, and subsequent to the expiration of the Escrow Period, the maximum liability of the Company Stockholders pursuant to this Section 8.02 shall not exceed $7.3 million; PROVIDED that the limitations set forth in this Section 8.02 shall not apply to the extent of Damages arising from actual fraud. Notwithstanding the foregoing, from and after the ClosingEffective Time, the obligation to indemnify the Veeco Indemnitees under this Section 8.02 shall be solely the joint and several obligation of the Company Stockholders and each Stockholder agree, jointly and severally, to indemnify, defend and save TMP, the Surviving Corporation and their Affiliates, and each of their respective officers, directors, employees, agents, employee benefit plans and fiduciaries, plan administrators or other parties dealing with any such plans (each, an "INDEMNIFIED TMP PARTY"), harmless from and against, and to promptly pay to an Indemnified TMP Party or reimburse an Indemnified TMP Party for, any and all liabilities (whether contingent, fixed or unfixed, liquidated or unliquidated, or otherwise), obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses, interest, fines, penalties, actual or punitive damages or costs or expenses of any and all investigations, proceedings, judgments, environmental analyses, remediations, settlements and compromises (including reasonable fees and expenses of attorneys, accountants and other experts incurred by any indemnified party in any action or proceeding between such indemnified party and the indemnitor or between any indemnified party and any third party or otherwise) (individually a "LOSS" and collectively, the "LOSSES") sustained or incurred by any Indemnified TMP Party relating to, resulting from, arising out of or otherwise by virtue of shall be satisfied (i) any misrepresentation during the Escrow Period out of the Veeco Shares deposited under the Escrow Agreement (or breach of a representation or warranty made herein by the payment by the Company or Stockholders of cash in lieu thereof, as more particularly described in the Escrow Agreement) or, if the Veeco Shares so deposited are not adequate to satisfy any Stockholder, claim by a Veeco Indemnitee directly by the Company Stockholders in accordance with this Article VIII and (ii) any non-compliance with or breach subsequent to the expiration of the Escrow Period, directly by the Company or any Stockholder, or any Affiliate of the Company or any Stockholder, of any of their respective covenants or agreements contained Stockholders in accordance with this Agreement or the Transaction Documents to be performed by the Company, any Stockholder, or any Affiliate of the Company or any Stockholder, (iii) allegations by a third party that is not an Indemnified TMP Party which, if true, would constitute a misrepresentation or breach of a representation or warranty made herein by the Company or any Stockholder or non-compliance with or breach by the Company or any Stockholder of any of their respective covenants or agreements contained in this Agreement or the Transaction Documents to be performed by any Stockholder, the Company or any or their respective Affiliates, (iv) any claims, suits, actions, complaints, allegations or demands which have been or may be brought against the Company, any of the Stockholders, TMP, TMP Sub and their respective Affiliates and any of their respective officers, directors, employees or agents, including by the Specified Entity (as defined below), relating to the Specified Entity or arising from similar facts and circumstances as any claims brought by the Specified Entity or relating to the contracts with brokers identified on SCHEDULE 3.13, (v) any amounts required to be paid to holders of Dissenting Shares in excess of the amount that such holders would have been paid pursuant to SECTION 2.03 hereof, and (vi) Taxes owed by the Company pursuant to SECTION 8.06 hereofArticle VIII. (b) Notwithstanding SECTION 9.01(a), no Indemnified TMP Party shall be entitled to indemnification under this SECTION 9.01 until the total Losses under SECTION 9.01(a) shall exceed $100,000 (the "INDEMNIFICATION THRESHOLD"). Once total Losses under SECTION 9.01(a) exceed the Indemnification Threshold, each Indemnified TMP Party shall be entitled to indemnification for the full amount of any and all such Losses, including the first $100,000 of Losses applied to the Indemnification Threshold. The aggregate maximum amount of Losses for which all Stockholders shall be liable pursuant to SECTION 9.01 hereof shall be 40% of the Adjusted Merger Consideration (100% of the Adjusted Merger Consideration with respect to breaches of SECTIONS 3.25, 3.36 and 3.37, hereof); it being agreed and understood that each Stockholder shall be so liable for such Stockholder's proportionate share (based on the proportion of the TMP Shares received by such Stockholder hereunder to the total number of TMP Shares issued hereunder) of any individual Loss. The Indemnification Threshold shall not apply to any Loss related to the Specified Entity or arising out of a breach of a representation or warranty made in SECTIONS 3.05, 3.25 and 3.30; in the event of such Loss or breach by the Company or any Stockholder, the Indemnified TMP Party shall be entitled to full recovery of all Losses under SECTION 9.01(a). (c) If the Indemnified TMP Party is TMP, the Surviving Corporation or another non-natural person Affiliate of TMP, then the Stockholders shall be entitled, at their sole option, to satisfy their indemnification obligations under this SECTION 9.01 by surrending that number of TMP Shares obtained by dividing (i) the amount of such indemnification obligation by (ii) the Imputed TMP Share Value.