Common use of Indemnification by the Company Stockholders Clause in Contracts

Indemnification by the Company Stockholders. (a) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1). (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From The Indemnifying Stockholders receiving the Merger Shares pursuant to Section 1.5 shall indemnify the Parent in respect of, and after the Closinghold it harmless against, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the GCL), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders receiving the Merger Shares pursuant to Section 1.5 shall indemnify the Parent in respect of, and hold it harmless against, loss, liability, deficiency, damages, expense or cost (aincluding without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified PartiesDamages”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffered, incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent resulting from: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the BCA), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders (the “Indemnifying Stockholders”) shall, for a period commencing from the Closing Date and ending eighteen (18) months the Closing Date, severally, not jointly, pro rata in such proportion as the number of Merger Shares received by each Indemnifying Stockholder pursuant to Section 1.5 bears to the total number of Merger Shares received by all Indemnifying Stockholders pursuant to Section 1.5, indemnify the Parent in respect of, and hold it harmless against, any and all debts, obligations losses, liabilities, deficiencies, damages, fines, fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (collectively, “Damages”) incurred or suffered by the Surviving Corporation or the Parent or any Affiliate thereof resulting from: (a) From and after the Closingany misrepresentation or breach of warranty by, subject or failure to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectivelyperform any covenant or agreement of, the “Purchaser Indemnified Parties”Company contained in this Agreement or the Company Certificate; (b) shall be indemnified and held harmless in accordance with Section 11.2(b)any claim by a stockholder or former stockholder of the Company, from and against or any and all Losses sufferedother person or entity, incurred seeking to assert, or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: based upon: (i) ownership or rights to ownership of any breach shares of or inaccuracy in any Company Fundamental Representation made as stock of the date hereof or as Company prior to the Effective Time; (ii) any rights of a stockholder prior to the Closing Date Effective Time (or, in the case of representations both (i) and warranties (ii), other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware Act), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company prior to the Effective Time; or (iv) any claim that by their terms speak as of a specific datehis, as of such date) her or in any certificate delivered its shares were wrongfully repurchased by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Effective Time; and (vic) any Liabilitiesclaim for brokers’ or finders’ fees or agents’ commissions arising from or through the Company, other than Income Taxany of its pre-related LiabilitiesMerger Affiliates or any Company Stockholder in connection with the negotiation or consummation of the transactions contemplated by this Agreement, except for claims arising under the Placement Agency Agreement with the Placement Agent or the agreements listed in Section 2.27 of EIS the Company Disclosure Schedule. (d) any violation of, or any liability under, any Environmental Law (an “Environmental Claim”) relating to or arising out from the activities and operations of the Company or any of its Subsidiaries prior to the Effective Time, regardless of when the environmental hazard giving rise to such Environmental Claim is discovered, and any liability in regards to any Mining Interests, for any all obligations, whether arising under contract, applicable Laws or otherwise, to abandon mines and close, decommission, dismantle and remove structures, buildings, equipment and other facilities and to restore and reclaim the sites for any of the foregoing and any lands used to gain access thereto (collectively, “Abandonment and Reclamation Liabilities”) of the Company or any of its Subsidiaries (or their respective successors) relating to any mines, structures, buildings, equipment and other facilities or any lands that were, or were required pursuant to applicable Law to have been, abandoned, decommissioned or reclaimed, as the case may be, prior to the Effective Time. Notwithstanding the foregoing, except with respect to any fraud or willful misconduct by the Company in connection with this Agreement, the Parent’s sole and exclusive right to collect any Damages with respect to claims resulting from or relating to the conduct any misrepresentation or breach of the EIS Business whether prior to, at warranty of or following the Closing failure to perform any covenant or the Spin-Off, or any payment obligations or other Liabilities of agreement by the Company Entities Stockholders contained in this Agreement shall be pursuant to EISa sale, in each casethe manner set forth in the Indemnification Escrow Agreement, of Indemnification Escrow Shares issued to such Indemnifying Stockholder by the Parent pursuant to Section 1.5(b) above. Notwithstanding anything to the extent imposed on contrary contained herein, except with respect to any fraud or willful misconduct by an Indemnifying Stockholder in connection with this Agreement, the indemnification of Parent by the Indemnifying Stockholders shall be without personal liability of or personal recourse against any Indemnifying Stockholder and the sole recourse of Parent and the Surviving Company against any Company Entity other than those obligations which are Stockholder shall be the express liability of the Company Indemnification Escrow Shares pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Indemnification Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Agreement. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders receiving the Merger Shares pursuant to Section 1.5 (a) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b"Indemnifying Stockholders"), from severally but not jointly, shall indemnify the Buyer in respect of, and against hold it harmless against, any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, reasonable fees and expenses of attorneys, accountants, financial advisors and other experts, and other reasonable expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of Buyer or any Affiliate thereof resulting from, relating to or constituting: (a) any inaccuracy in or breach of any representation or warranty or failure to perform any covenant or agreement of the Transactions;Company contained in this Agreement or the Company Certificate; or (b) any claim by a stockholder or former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware General Corporation Law), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Certificate of Incorporation or By-laws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From and after the Closing, subject Subject to the provisions of this Article XISection 6.3, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns the Company Stockholders (including the Principal Stockholders) (collectively, the “Purchaser Indemnified "Company Indemnifying Parties”") shall be indemnified severally and held harmless not jointly, in accordance with Section 11.2(btheir respective Pro Rata Portions agree to indemnify and hold Parent and its officers, directors and affiliates, including the First-Step Corporation and, if applicable, the Surviving Corporation (the "Parent Indemnified Parties"), from and harmless against any and all Losses sufferedclaims, losses, liabilities, damages, deficiencies, diminution in value, costs and expenses, including reasonable attorneys' fees and expenses of investigation and defense (hereinafter individually a "Parent Loss" and collectively "Parent Losses") incurred or sustained by the Parent Indemnified Parties, or any of them them, directly or to which any indirectly, as a result of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of a representation or warranty of the date hereof Company or as of the Closing Date (or, Principal Stockholders contained in the case of representations and warranties that by their terms speak as of a specific date, as of such date) this Agreement or in any agreement or certificate delivered pursuant to this Agreement, or (ii) any failure by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, Principal Stockholder to perform or otherwise in connection comply with any Dissenting Shares; (iii) covenant applicable to them contained in this Agreement or any breach agreement, delivered pursuant hereto. The Company Indemnifying Parties shall not have any right of fiduciary duty claim with respect to contribution from, and may not seek indemnification or advancement of expenses from, the Company, Parent, the Company Board, First-Step Corporation or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Loss claimed by a Parent Indemnified Party. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From The Indemnifying Stockholders receiving the Merger Shares pursuant to Section 1.5 shall indemnify the Parent in respect of, and after the Closinghold it harmless against, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the GCL), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders receiving the Merger Consideration pursuant to Section 1.5 (athe "Indemnifying Stockholders") From shall, jointly and after severally, indemnify the ClosingBuyer in respect of, subject to the provisions of this Article XIand hold it harmless against, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Buyer or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware General Corporation Law), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Certificate of Incorporation or By-laws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From and after the Closing, subject the holders of Participating Options and Persons who were stockholders of the Company immediately prior to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns Effective Time (collectively, the “Purchaser Indemnified PartiesCompany Stockholders”) shall be indemnified agree (solely through the application of the Escrow Funds and held harmless the Escrow Agreement and not in accordance with Section 11.2(b)their individual capacities) to indemnify fully, hold harmless, protect and defend, any of Parent, Merger Sub, their respective Affiliates and the respective directors, officers, agents and employees, successors and assigns of the foregoing (collectively, the “Parent Group Members” from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to:against): (i) any and all (A) losses, costs, obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, expenses, deficiencies or other charges and (B) expenses incurred in connection with investigating, defending or asserting any claim, action, suit or proceeding incident to any matter indemnified against hereunder, including court filing fees, court costs, arbitration fees or costs, witness fees, and reasonable fees and disbursements of legal counsel, investigators, expert witnesses, consultants, accountants and other professionals (collectively, “Losses”) incurred by any of them arising out of, relating to, or based upon any inaccuracy in, or breach of of, any (1) representations or inaccuracy in any Company Fundamental Representation made as warranties of the Company contained in or incorporated into this Agreement or (2) schedules, certificates, instruments or other documents delivered by the Company pursuant hereto; (ii) any and all Losses incurred by any of them arising out of, relating to, or based upon any failure to perform, or other breach of, any of the covenants or agreements of the Company contained in or incorporated into this Agreement; (iii) any and all Losses relating to or arising from (A) Taxes (or the non-payment thereof) of the Company and the Subsidiaries (other than Taxes included in the calculation of Actual Working Capital and Taxes arising from actions taken by or at the direction of Parent, and without the consent of Stockholders’ Representative, on or after the Closing Date) for all periods ending on or before the Closing date hereof and the portion through the end of the Closing date for any Taxable period that includes (but does not end on) the Closing Date (“Pre-Closing Tax Period”) (in the case of any taxable year that begins prior to and ends after the Closing Date (a “Straddle Period”), the Taxes that are attributable to the Pre-Closing Tax Period shall be determined by assuming that the Company (or the Subsidiary, as applicable) had a taxable year that ended on the Closing Date and by closing the books of the Company (or Subsidiary, as applicable) on the Closing Date, except that Taxes imposed on a periodic basis (e.g., property or ad valorem Taxes) shall be determined by apportioning an equal portion of such Tax for the entire Straddle Period to each day in such Straddle Period and deductions for depreciation or amortization, and any exemptions or allowances provided for under the Code that are a fixed dollar amount, or that are calculated or provided for on an annual basis, shall be apportioned on a time basis by assuming that an equal portion of such exemptions or allowances for the entire Straddle Period is allocable to each day in such Straddle Period), (B) Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company or any Subsidiary (or any predecessor of any of the foregoing) is or was a member on or prior to the Closing date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or foreign law or regulation, or (C) Taxes of any person (other than the Company or any Subsidiary) imposed on the Company or any Subsidiary as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which Taxes relate to an event or transaction occurring before the Closing; (iv) any amount by which the cash of the Company as of the Closing Date is less than the amount of cash reflected on the Statement of Cash; (v) any and all Losses related to the exercise by the State of South Carolina of its buyout rights pursuant to the Lease, to the extent that any person who was an officer or director of the Company for the six (6) month period immediately prior to the Closing, directly or indirectly, owns, manages, operates, controls or finances (or participates in the ownership, management, operation, control or financing of), or, directly or indirectly, has an equity or other economic interest in, or, directly or indirectly, serves or provides services as a director, officer, employee, consultant, or independent contractor of, or advisor to, any Person that replaces the Company as the tenant/lessee under the Lease; (vi) any and all Losses relating to (A) claims brought by the holders of Company Stock Options under Section 2.05, (B) claims brought by Company Stockholders related to the Share Distribution Schedule, or (C) any inaccuracy in Annex A or Section 3.03(a) (such Losses shall include, without limitation, any dilution suffered by Parent as a result of the case exercise of representations any Company Stock Options in light of the then fair market value of the Surviving Corporation); (vii) any and warranties that by their terms speak as all Losses relating to (A) payments (calculated on a per share basis) made in respect of a specific dateany Dissenting Shares in excess of the Per Share Common Stock Consideration or the Per Share Preferred Stock Consideration, as of such dateapplicable, or (B) or costs and expenses incurred by Parent and/or the Surviving Corporation related to any appraisal proceedings brought in connection with the Merger; (viii) any certificate delivered by and all Losses related to claims asserted against the Company by Persons who were officers of the Company or members of the Company Board or Special Committee prior to the Closing; (iiix) any and all Losses relating to Severance/Change in Control Obligations (to the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholderextent not taken into account in reducing the Merger Consideration), or any Proceeding involving including the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares;calculation and/or payment thereof; and/or (iiix) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or and all Losses relating to the Transactions;matters listed in Section 3.09 of the Company Disclosure Schedule. The right of any Parent Group Member to be indemnified hereunder shall not be limited or affected by any investigation conducted or notice or Knowledge obtained by or on behalf of any such Parent Group Member. (ivb) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to No indemnification under Section 4.2(d)9.02(a)(i) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); 9.02(a)(x) shall be due unless (vi) the amount of any Pre-Closing Taxes; providedLosses arising from a single claim (or series of related claims) exceeds $50,000 (the “Individual Occurrence Indemnification Threshold” and (ii) the aggregate amount of Losses (aggregating all indemnifiable matters under such Section) due exceeds $250,000 (the “Indemnification Threshold”) and thereafter indemnity shall become due only for the amount of Losses in excess of the Indemnification Threshold (i.e., that the Indemnification Threshold operates as a deductible). However, the Indemnification Threshold will not apply to any willful or intentional breach of the extent Company’s representations and warranties. (c) From and after the Closing, the maximum amount of Losses for which the Parent Group Members shall be entitled to be indemnified under this Agreement, shall be the balance of the Escrow Funds at any such Pre-Closing Taxes are subject time, as the same may be reduced from time to indemnification by EIS time, pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery provisions of such Losses pursuant to this Section 11.2(a)(v2.02(a) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1“Indemnification Cap”). (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. Fredxxxxx Xxxxxxx xxx Chrixxxxxxx Xxxxxx (xxe "Indemnifying Stockholders") shall severally, but not jointly, indemnify the Buyer in respect of, and hold it harmless against, any and all debts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or (a) From any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and after the Closing, subject marketable title to the provisions issued and outstanding Common Shares issued in the name of this Article XIsuch Company Stockholder, Purchaserfree and clear of all Security Interests; or (c) any claim by a stockholder or former stockholder of the Company, Merger Sub and their respective Affiliates and Representativesor any other person or entity, successors and assigns (collectivelyseeking to assert, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: based upon: (i) ownership or rights to ownership of any breach shares of or inaccuracy in any Company Fundamental Representation made as stock of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; Company; (ii) any rights of a stockholder (other than the exercise right to receive the Merger Shares pursuant to this Agreement or demand of any appraisal or dissenters’ rights under the applicable Law by provisions of the Connecticut Business Corporation Act), including any Company Stockholderoption, preemptive rights or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, rights to notice or otherwise in connection with any Dissenting Shares; to vote; (iii) any breach rights under the Certificate of fiduciary duty claim with respect to Incorporation or By-laws of the Company, the Company Board, ; or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders receiving the Merger Shares pursuant to Section 1.5 (a) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”"Indemnifying Stockholders") shall be indemnified indemnify the Buyer in respect of, and held hold it harmless in accordance with Section 11.2(b)against, from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Buyer or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware General Corporation Law), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Certificate of Incorporation or By-laws of the Company as constituted prior to the Transactions; Merger; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From and after the Closing, subject Subject to the provisions of limitations and qualifications set forth in this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectivelyVI, the “Purchaser Indemnified Parties”Company Stockholders receiving the Merger Consideration pursuant to Section 1.5 (the "Indemnifying Stockholders") shall be indemnified shall, at or following the Effective Time, indemnify the Buyer in respect of, and held hold it harmless in accordance with Section 11.2(b)against, from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) net of any insurance proceeds or payments from any responsible party received by the Indemnified Party incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Buyer or any Affiliate thereof, at any time prior to or after the Effective Time, resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Consideration pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware General Corporation Law), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Certificate of Incorporation or By-laws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation Company; all of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; providedabove, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)"Damages. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents."

Indemnification by the Company Stockholders. (a) From The Indemnifying Stockholders receiving the Merger Shares pursuant to Section 1.5 shall indemnify the Parent in respect of, and after the Closinghold it harmless against, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the California Corporations Code or GCL), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders identified on Exhibit J hereto receiving Merger Shares pursuant to Section 1.5 (the “Indemnifying Stockholders”) shall, for a period commencing from the Closing Date and ending eighteen (18) months the Closing Date, severally, not jointly, pro rata in such proportion as the number of Merger Shares received by each Indemnifying Stockholder pursuant to Section 1.5 bears to the total number of Merger Shares received by all Indemnifying Stockholders pursuant to Section 1.5, indemnify Parent in respect of, and hold it harmless against, any and all debts, obligations losses, liabilities, deficiencies, damages, fines, fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (collectively, “Damages”) incurred or suffered by the Surviving Corporation or Parent or any Affiliate thereof resulting from: (a) From and after the Closingany misrepresentation or breach of warranty by, subject or failure to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectivelyperform any covenant or agreement of, the “Purchaser Indemnified Parties”Company contained in this Agreement or the Company Certificate; (b) shall be indemnified and held harmless in accordance with Section 11.2(b)any claim by a stockholder or former stockholder of the Company, from and against or any and all Losses sufferedother person or entity, incurred seeking to assert, or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: based upon: (i) ownership or rights to ownership of any breach shares of or inaccuracy in any Company Fundamental Representation made as stock of the date hereof or as Company prior to the Effective Time; (ii) any rights of a stockholder prior to the Closing Date Effective Time (or, in the case of representations both (i) and warranties (ii), other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware Act), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company prior to the Effective Time; or (iv) any claim that by their terms speak as of a specific datehis, as of such date) her or in any certificate delivered its shares were wrongfully repurchased by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Effective Time; and (vic) any Liabilitiesclaim for brokers’ or finders’ fees or agents’ commissions arising from or through the Company, other than Income Taxany of its pre-related LiabilitiesMerger Affiliates or any Company Stockholder in connection with the negotiation or consummation of the transactions contemplated by this Agreement. (d) any violation of, of EIS or any liability under, any Environmental Law (an “Environmental Claim”) relating to or arising out from the activities and operations of the Company or any of its Subsidiaries prior to the Effective Time, regardless of when the environmental hazard giving rise to such Environmental Claim is discovered, and any liability in regards to any Mining Interests, for any all obligations, whether arising under contract, applicable Laws or otherwise, to abandon mines and close, decommission, dismantle and remove structures, buildings, equipment and other facilities and to restore and reclaim the sites for any of the foregoing and any lands used to gain access thereto (collectively, “Abandonment and Reclamation Liabilities”) of the Company or any of its Subsidiaries (or their respective successors) relating to any mines, structures, buildings, equipment and other facilities or any lands that were, or were required pursuant to applicable Law to have been, abandoned, decommissioned or reclaimed, as the case may be, prior to the Effective Time. Notwithstanding the foregoing, except with respect to any fraud or willful misconduct by the Company in connection with this Agreement, Parent’s sole and exclusive right to collect any Damages with respect to claims resulting from or relating to the conduct any misrepresentation or breach of the EIS Business whether prior to, at warranty of or following the Closing failure to perform any covenant or the Spin-Off, or any payment obligations or other Liabilities of agreement by the Company Entities Stockholders contained in this Agreement shall be pursuant to EISa sale, in each casethe manner set forth in the Indemnification Escrow Agreement, of Indemnification Escrow Shares issued to such Indemnifying Stockholder by Parent pursuant to Section 1.5(b) above. Notwithstanding anything to the extent imposed on contrary contained herein, except with respect to any fraud or willful misconduct by an Indemnifying Stockholder in connection with this Agreement, the indemnification of Parent by the Indemnifying Stockholders shall be without personal liability of or personal recourse against any Indemnifying Stockholder and the sole recourse of Parent and the Surviving Company against any Company Entity other than those obligations which are Stockholder shall be the express liability of the Company Indemnification Escrow Shares pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Indemnification Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Agreement. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From Subject to the other limitations in this Article VIII, from and after the Closing, subject the Company Stockholders shall, severally but not jointly, in accordance with their respective Pro-Rata Share (except with respect to the provisions Indemnity Escrow Amount, which will be available on a joint and several basis), indemnify, defend and hold harmless Parent, the Surviving Corporation, each of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representativeseach of their respective officers, successors directors, employees, members, agents and assigns representatives (collectively, the “Purchaser Indemnified PartiesParent Indemnitees”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses sufferedasserted against, imposed upon or incurred by such Parent Indemnitee that arise out of, are related to or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating toin connection with: (ia) any inaccuracy or breach of any of the representations or warranties of the Company contained in this Agreement (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or inaccuracy in obligation to be performed by the Company pursuant to this Agreement; (c) any claim made by any Company Fundamental Representation made as Stockholder relating to such Person’s rights with respect to the Total Merger Consideration, or the calculations and determinations set forth on the Consideration Spreadsheet; (d) any Excess Dissenting Share Payments (including reasonable attorneys’ fees and court costs and fees); or (e) any Company Stockholder Expenses or Indebtedness of the date hereof or Company outstanding as of the Closing Date (or, in to the case of representations and warranties that by their terms speak as of a specific date, as of such date) extent not paid or in any certificate delivered satisfied by the Company at or prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, if paid by Parent or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect Merger Sub at or prior to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each caseClosing, to the extent imposed on any Company Entity other than those obligations which are not deducted in the express liability determination of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Purchase Price. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From The Indemnifying Stockholders receiving the Merger Shares pursuant to Section 1.8 shall indemnify the Parent in respect of, and after the Closinghold it harmless against, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company that are not shown by the Company as being issued and outstanding as of immediately prior to the Transactions; Effective Date; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the DGCL), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders covenant and agree that they, jointly and severally, will indemnify, defend, and hold harmless IES, the Company, and the Surviving Corporation, and their respective officers, directors, employees, stockholders, agents, representatives, and affiliates (athe "IES Indemnitees") From at all times from and after the Closing, subject to the provisions date of this Article XIAgreement from and against all claims, Purchaserdamages, Merger Sub losses, liabilities (joint or several), obligations, penalties, defenses, actions, lawsuits, proceedings, judgments, demands, assessments, adjustments, costs, and their respective Affiliates expenses (including specifically, but without limitation, reasonable fees, disbursements, and Representativesexpenses of attorneys, successors accountants, other professional advisors and assigns of expert witnesses and costs of investigation and preparation) (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b"Damages"), from and against any and all Losses suffered, as they are incurred or sustained by any of them or to which any of them becomes subject, resulting from, relating to or arising out of or relating toof: (ia) any breach of or inaccuracy in any allegation or claim by a third party which, if true, would constitute a breach of any representation or warranty of Company Fundamental Representation made as of the date hereof Stockholders set forth herein or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific dateSchedules or certificates delivered in connection herewith; (b) any breach or non-performance, as of such date) partial or in any certificate delivered total, by the Company prior or any of the Company Stockholders of any covenant or agreement of the Company (or any affiliate or subsidiary thereof) or the Company Stockholders (or any affiliate or subsidiary thereof) contained in this Agreement, other than Company obligations due after Closing; or (c) the remediation, cleanup, testing, analysis, removal, containment, treatment, storage, disposal, release or other action required by law or expense related to items, if any, set forth or described by Schedule 3.18. Notwithstanding anything in this Agreement to the Closing; contrary, any Damages or other indemnification amounts owed or incurred by Company Stockholders, on the one hand, or IES on the other hand, in this Agreement shall be reduced by (i) reserves established by Company as of June 30, 1998 with regard to a specific indemnity obligation, (ii) any insurance proceeds received by Surviving Corporation or IES, on the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholderone hand, or any Proceeding involving the Surviving Corporation in connection with such appraisal rightsCompany Stockholders, or otherwise in connection with any Dissenting Shares; on the other hand, under insurance coverage; and (iii) any breach of fiduciary duty claim with respect resulting tax benefits. Notwithstanding any provision to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters contrary in this Agreement, Purchaser shall, and in no event whatsoever shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express aggregate liability of the Company pursuant to Stockholders, on the Spinoff Documents one hand, or IES, on the other hand, under this Agreement (butincluding all costs, in each case, only to the extent that EIS does not perform expenses and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubtattorneys' fees paid or incurred by IES, the Survival Expiration Date shall be extended Company and/or the Company Stockholders in connection therewith or with respect to such claimany indemnification or the curing of any and all misrepresentations or breaches under this Agreement) exceed $18,000,000; provided, and however, that the release of Escrow Shares to the extent provided in Section 11.1, foregoing limitation on liability shall be extended not apply with respect to such claim, in each case while such claim is being pursued pursuant (i) indemnity obligations under Section 6.1(a) relating to Section 11.1). 3.2, Section 3.19 hereof or (bii) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts with respect to recover any Losses which may be indemnified indemnity obligations under Section 11.2(a6.3(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant relating to Section 11.2(a)(i4.2(b) hereof or (iii) the failure of IES and/or Acquisition to pay all or any part of the Merger Consideration; (iv) with respect to any Damages that relate to or occur as a result of fraudulent misrepresentations or fraudulent actions; or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up with respect to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS IES's obligations pursuant to the Spin-Off DocumentsSection 5.6.

Indemnification by the Company Stockholders. Each Indemnifying Stockholder who surrenders his, her or its Certificate(s), which immediately prior to the Effective Time represented Company Shares, and accepts the Initial Shares pursuant to this Agreement upon conversion of the Company Shares formerly represented by such Certificate(s) pursuant to Section 1.03 shall be deemed to have agreed, and hereby agrees, to indemnify the Parent in respect of, and hold it harmless against, any and all debts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, diminutions in value, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or suffered by the Surviving Corporation or the Parent or any affiliate thereof resulting from, relating to or constituting: (a) From any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement; (b) any breach or failure to perform any covenant or agreement of the Parent contained in this Agreement; (c) any failure of any Company Stockholder to have good, valid and after the Closing, subject marketable title to the provisions issued and outstanding Company Shares issued in the name of this Article XIsuch Company Stockholder, Purchaserfree and clear of all Liens; (d) any claim by a stockholder or former stockholder of the Company, Merger Sub and their respective Affiliates and Representativesor any other person or entity, successors and assigns (collectivelyseeking to assert, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: based upon: (i) ownership or rights to ownership of any breach shares of or inaccuracy in any Company Fundamental Representation made as stock of the date hereof Company; (ii) any rights of a stockholder (other than the right to receive Merger Shares), including any option, preemptive rights or as rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Closing Date Company; or (oriv) any claim that his, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) her or in any certificate delivered its shares were wrongfully issued or repurchased by the Company prior to the ClosingCompany; (iie) any amount paid by Parent, the exercise Company or demand of any appraisal or dissenters’ rights under applicable Law by the Surviving Corporation to any Company StockholderStockholder with respect to Dissenting Shares pursuant to the DGCL, and all interest, costs, expenses and fees incurred by the Company, Parent or any Proceeding involving the Surviving Corporation in connection with such appraisal rightsthe exercise of all dissenters’ rights under the DGCL (including, or otherwise in connection with any Dissenting Shares;without limitation, all attorneys’ fees and expenses); or (iiif) any breach of fiduciary duty claim federal or state securities laws in connection with respect to the Company, the Company Board, or the Surviving Corporation or issuance of the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of and the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any LiabilitiesCompany Stockholders, other than Income Tax-actions related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether Parent prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Merger. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Common Stockholders (the “Indemnifying Stockholders”) receiving Merger Shares pursuant to Section 1.5 shall, for a period commencing from the Closing Date and ending on the third anniversary of the Closing Date, severally, not jointly, pro rata in such proportion as the number of Merger Shares received by each Indemnifying Stockholder pursuant to Section 1.5 bears to the total number of Merger Shares received by all Indemnifying Stockholders pursuant to Section 1.5, indemnify the Parent in respect of, and hold it harmless against, any and all debts, obligations losses, liabilities, deficiencies, damages, fines, fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (collectively, “Damages”) incurred or suffered by the Surviving Corporation or the Parent or any Affiliate thereof resulting from: (a) From and after the Closingany misrepresentation or breach of warranty by, subject or failure to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectivelyperform any covenant or agreement of, the “Purchaser Indemnified Parties”Company contained in this Agreement or the Company Certificate; (b) shall be indemnified and held harmless in accordance with Section 11.2(b)any claim by a stockholder or former stockholder of the Company, from and against or any and all Losses sufferedother person or entity, incurred seeking to assert, or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: based upon: (i) ownership or rights to ownership of any breach shares of or inaccuracy in any Company Fundamental Representation made as stock of the date hereof Company prior to the Effective Time; (ii) any rights of a stockholder prior to the Effective Time (other than the right to receive the Merger Shares pursuant to this Agreement or as appraisal rights under the applicable provisions of the Closing Date Delaware Act), including any option, preemptive rights or rights to notice or to vote; (oriii) any rights under the certificate of incorporation or bylaws of the Company prior to the Effective Time; or (iv) any claim that his, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) her or in any certificate delivered its shares were wrongfully repurchased by the Company prior to the ClosingEffective Time; (iic) any claim for brokers’ or finders’ fees or agents’ commissions arising from or through the exercise Company, any of its pre-Merger Affiliates or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation Stockholder in connection with such appraisal rights, the negotiation or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation consummation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification transactions contemplated by EIS pursuant to the Tax Matters this Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vid) any Liabilitiesviolation of, other than Income Tax-related Liabilitiesor any liability under, of EIS any Environmental Law (an “Environmental Claim”) relating to or arising out from the activities and operations of the Company or any of its Subsidiaries prior to the Effective Time, regardless of when the environmental hazard giving rise to such Environmental Claim is discovered, and any liability in regards to any Mining Interests, for any all obligations, whether arising under contract, applicable Laws or otherwise, to abandon mines and close, decommission, dismantle and remove structures, buildings, equipment and other facilities and to restore and reclaim the sites for any of the foregoing and any lands used to gain access thereto (collectively, “Abandonment and Reclamation Liabilities”) of the Company or any of its Subsidiaries (or their respective successors) relating to any mines, structures, buildings, equipment and other facilities or any lands that were, or were required pursuant to applicable Law to have been, abandoned, decommissioned or reclaimed, as the case may be, prior to the Effective Time. Notwithstanding the foregoing, except with respect to any fraud or willful misconduct by the Company in connection with this Agreement, the Parent’s sole and exclusive right to collect any Damages with respect to claims resulting from or relating to the conduct any misrepresentation or breach of the EIS Business whether prior to, at warranty of or following the Closing failure to perform any covenant or the Spin-Off, or any payment obligations or other Liabilities of agreement by the Company Entities Stockholders contained in this Agreement shall be pursuant to EISa sale, in each casethe manner set forth in the Indemnification Escrow Agreement, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect Indemnification Escrow Shares issued to such claim, and Indemnifying Stockholder by the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued Parent pursuant to Section 11.1)1.5(c) above. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders receiving the Merger Shares pursuant to Section 1.5 (a) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”"Indemnifying Stockholders") shall be indemnified jointly and held severally indemnify the Buyer in respect of, and hold it harmless in accordance with Section 11.2(b)against, from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of Buyer or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the TransactionsCompany contained in this Agreement, the Company Certificate or the Company CFO Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Common Shares issued in the name of such Company Stockholder, free and clear of all Security Interests; (c) any claim by a stockholder or former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware General Corporation Law), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Certificate of Incorporation or By-laws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation Company; or (d) any material variation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided estimates in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1). (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) Balance Sheet from the R&W Insurance Policyactual amounts which should have been reflected thereon. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(iFor purposes of this clause (d) only, "material" shall mean any amount in excess of $10,000 individually or (v) shall be satisfied (i) first, from the Purchaser Common Stock included $50,000 in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documentsaggregate.

Indemnification by the Company Stockholders. (a) From After the Effective Time, Parent and its affiliates (including, after the ClosingEffective Time, subject to the provisions of this Article XISurviving Corporation), Purchaserofficers, Merger Sub and their respective Affiliates and Representativesdirectors, employees, agents, successors and assigns (collectively, the “Purchaser "Parent Indemnified Parties”") shall be indemnified and held harmless by the Company Stockholders (to the extent of each Company Stockholder's pro-rata share of the Escrow Fund), severally and not jointly, for any and all liabilities, losses, damages of any kind, diminution in value, claims, costs, expenses, fines, fees, deficiencies, interest, awards, judgments, amounts paid in settlement and penalties (including, without limitation, attorneys', consultants' and experts' fees and expenses and other costs of defending, investigating or settling claims) suffered, incurred, accrued (in accordance with Section 11.2(b)U.S. GAAP) or paid by them (including, from and against without limitation, in connection with any and all Losses suffered, incurred action brought or sustained otherwise initiated by any of them or to which them) (hereinafter, a "Loss"), without adjustment for any of them becomes subject, resulting fromtax deduction relating thereto, arising out of or relating toresulting from: (i) any inaccuracy or breach of any representation or inaccuracy in any Company Fundamental Representation warranty made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to or any Company Stockholder in the ClosingAcquisition Documents; (ii) the exercise or demand breach of any appraisal covenant or dissenters’ rights under applicable Law agreement made by the Company or any Company Stockholder, or any Proceeding involving Stockholder in the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting SharesAcquisition Documents; (iii) any Losses from breach of fiduciary duty claim with respect contract or other claims made by any party alleging to have had a contractual or other right to acquire the Company, the Company Board, 's capital stock or the Surviving Corporation or the Company Shares arising out of or relating to the Transactionsassets ; (iv) the value of any claims relating to Tax deduction lost by the allocation Company by virtue of the Merger Consideration or (and/or application of Section 280G of the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d)Code ; (v) any Stockholder Expenses payable by the amount of any Pre-Surviving Corporation following the Closing Taxes; provided, that to were not included in the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Purchase Price Adjustment; and (vi) Losses that result from any Liabilities, former employee or contractor (it being understood that the term "contractor" as used in this section means any person who has been engaged (other than Income Tax-related Liabilities, of EIS or arising out of or relating as an employee) to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations perform software programming or other Liabilities services pursuant to which such contractor conceived or developed Company Intellectual Property) of the Company Entities having failed to EIS, execute and deliver an agreement in each case, substantially the form of the Company's standard Proprietary Information and Inventions Agreement (in the case of an employee) or Consulting Agreement (in the case of a contractor) (which agreements provide valid written assignments to the extent imposed on Company of all title and rights to any Company Entity other than those obligations which are the express liability of Intellectual Property conceived or developed thereunder but not already owned by the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance by operation of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1Law). (b) Purchaser shallAs used herein, and shall cause "Losses" are not limited to matters asserted by third parties, but include Losses incurred or sustained by the Purchaser Parent Indemnified Parties toin the absence of claims by third parties. (c) Notwithstanding anything to the contrary contained in this Agreement, use commercially reasonable efforts except with respect to recover any claims based on fraud or willful misrepresentation or misconduct: (i) the maximum aggregate amount of indemnifiable Losses which arising out of or resulting from the causes enumerated in Section 9.02(a) that may be indemnified recovered from the Company Stockholders shall not exceed the Escrow Fund, which shall be the sole and exclusive remedy for any such Losses; (ii) no indemnification payment by the Company Stockholders with respect to any indemnifiable Losses otherwise payable under Section 11.2(a9.02(a) and arising out of or resulting from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to causes enumerated in Section 11.2(a)(i) or (v9.02(a)(i) shall be satisfied payable until such time as all such indemnifiable Losses shall aggregate to more than $50,000, after which time the Company Stockholders shall be liable in full for all indemnifiable Losses (i) first, from including the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policyfirst $50,000), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), ; and (iii) thirdin the event that any Loss is covered by insurance maintained by or for the benefit of the Parent Indemnified Parties, such Loss shall be reduced by the amount of any insurance payments (net of any costs, premium adjustments or other obligations of the Parent Indemnified Parties relating to such recovery) actually received by the Parent Indemnified Parties. (d) Notwithstanding anything to the contrary contained in this agreement, the term "Losses" as used herein shall not include liabilities, losses, claims, costs, expenses, fines, fees, deficiencies, interest, awards, judgments, or amounts paid in settlement and penalties (including, without limitation, attorneys', consultants' and experts' fees and expenses and other costs of defending, investigating or settling claims) that result from the Purchaser Common Stock included actions of Parent in terminating the Indemnity Shares Amount 401(k) Plan or any subsequent action with respect to such plan; provided, however, that the term "Losses" as used in -------- ------- herein shall include all liabilities, losses, claims, costs, expenses, fines, fees, deficiencies, judgments, amounts paid in settlement and penalties (iv)including, if applicablewithout limitation, attorneys', consultants' and experts' fees and expenses and other costs of defending, investigating or settling claims) that result from EIS pursuant the failure of the Company to obtain favorable Determination Letters from the Internal Revenue Service with respect to the Spin-Off Documents401(k) Plan and the failure to file Form 5500s with the Internal Revenue Service with respect to the 401(k) Plan (including, but not limited to, any liabilities, expenses, fees, penalties or amounts paid in settlement incurred in terminating the 401(k) Plan that result from such failures).

Indemnification by the Company Stockholders. (a) From The Company Stockholders receiving the Initial Shares pursuant to Section 1.8 shall indemnify the Parent in respect of, and after the Closinghold it harmless against, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: i. any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; ii. any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder; or iii. any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company that are not shown by the Company as being issued and outstanding as of immediately prior to the Transactions; Effective Date; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement, the Additional Merger Shares or appraisal rights under the applicable provisions of the NRS), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, The Escrow Agreement is intended to secure the indemnification obligations of the Company Stockholders under this Agreement and shall cause be the Purchaser Indemnified Parties to, use commercially reasonable efforts exclusive means for the Parent to recover collect any Losses Damages under this Article VI for which may be indemnified it is entitled to indemnification under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documentsthis Article VI.

Indemnification by the Company Stockholders. (a) From and after the Closing, subject The holders of Company Shares immediately prior to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns Effective Time (collectively, the “Purchaser Indemnified PartiesIndemnifying Stockholders”) shall be indemnified indemnify the Buyer in respect of, and held hold it harmless in accordance with Section 11.2(b)against, from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Buyer or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware General Corporation Law), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Certificate of Incorporation or By-laws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders listed on SCHEDULE 6.1 attached hereto (a) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”"Indemnifying Stockholders") shall be indemnified indemnify the Buyer in respect of, and held hold it harmless in accordance with Section 11.2(b)against, from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, reasonable costs of investigators, reasonable fees and expenses of attorneys, accountants, financial advisors and other experts, and other reasonable expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Buyer resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company (other than (A) rights arising out under this Agreement or the First Merger Agreement, (B) the right to receive the merger consideration to which such stockholder is entitled pursuant to this Agreement or the First Merger Agreement, (C) appraisal rights under the applicable provisions of the Massachusetts Business Corporation Law, and (D) rights under the Options and Warrants assumed by the Buyer under the terms of this Agreement); (ii) any rights of a stockholder (other than (A) rights arising under this Agreement or relating the First Merger Agreement, (B) the right to receive the Transactions; merger consideration to which such stockholder is entitled pursuant to this Agreement or the First Merger Agreement, (C) appraisal rights under the applicable provisions of the Massachusetts Business Corporation Law, and (D) rights under the Options and Warrants assumed by the Buyer under the terms of this Agreement), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Articles of Organization or By-laws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased or acquired by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From and after the Closing, subject Subject to the provisions Section 6.5 of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectivelyAgreement, the “Purchaser Indemnified Parties”Company Stockholders receiving the Cash Consideration and the Merger Shares pursuant to Section 1.5 (the "Indemnifying Stockholders") shall be indemnified indemnify the Buyer in respect of, and held hold it harmless in accordance with Section 11.2(b)against, from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Buyer or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of or relating to the Transactionssuch Company Stockholder, free and clear of all Security Interests; (c) any claim by a stockholder or former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company; (ii) any rights of a stockholder (other than the right to receive the Cash Consideration and the Merger Shares pursuant to this Agreement or dissenters' rights under the applicable provisions of the Washington Business Corporation Act), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Articles of Incorporation or By-laws of the Company; or (iv) any claims relating claim that his, her or its shares were wrongfully repurchased by the Company, except with respect to any breach by the allocation Buyer of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d4.11(d); (vd) any costs and expenses (including accounting, financial advisor, legal or finder fees and expenses) incurred by the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement Company at or prior to seeking recovery of such Losses pursuant to Closing in connection with this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, Agreement and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilitiestransactions contemplated hereby, other than Income Tax-related Liabilitiesthe Permitted Legal Fees; or (e) the Isogen business, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubtincluding without limitation, the Survival Expiration Date shall be extended costs and expenses incurred in connection with respect to such claim, and the release wind-up of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Isogen. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders receiving the Merger Shares pursuant to Section 1.5 shall indemnify the Parent in respect of, and hold it harmless against, loss, liability, deficiency, damages, expense or cost (aincluding without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified PartiesDamages”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffered, incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent resulting from: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the GCL), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders ------------------------------------------- receiving the Merger Shares pursuant to Section 1.5 (a) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”"Indemnifying Stockholders") shall be indemnified indemnify the Buyer in respect of, and held hold it harmless in accordance with Section 11.2(b)against, from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Buyer or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate (other than with respect to the last sentence of Section 2.20(a) (and the portion of the Company Certificate relating thereto)); (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of or relating to the Transactionssuch Company Stockholder, free and clear of all Security Interests; (c) any claim by a stockholder or former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or dissenters rights under the applicable provisions of the Florida Business Corporation Act, including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Certificate of Incorporation or By-laws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d)Company; (vd) the amount of any Pre-Closing Taxes; provided, that to ongoing dispute between the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, Company and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided MCI Worldcom described in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.12.18 of the Disclosure Schedule (the "MCI Litigation"); and (vie) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Interglobe Agreement. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders identified on Exhibit G hereto (athe “Indemnifying Stockholders”) From and after receiving the ClosingMerger Shares pursuant to Section 1.5 shall, subject severally, not jointly, pro rata in such proportion as the number of Merger Shares received by each Indemnifying Stockholder pursuant to Section 1.5 bears to the provisions total number of this Article XIMergers Shares received by all Indemnifying Stockholders pursuant to Section 1.5, Purchaserindemnify the Parent in respect of, Merger Sub and their respective Affiliates hold it harmless against, loss, liability, deficiency, damages, expense or cost (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and Representativesexpenses of attorneys, successors accountants, financial advisors and assigns other experts, and other expenses of litigation) (collectively, the “Purchaser Indemnified PartiesDamages”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffered, incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent resulting from: (a) any misrepresentation or breach of warranty by or failure to perform any covenant or agreement of the Company Shares arising out of contained in this Agreement or relating to the TransactionsCompany Certificate; (b) any claim by a stockholder or former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the NRS), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders shall indemnify the Buyer and the Surviving Corporation in respect of, and hold the Buyer and the Surviving Corporation harmless against, any and all debts, obligations and other liabilities, monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) incurred or suffered by the Buyer or the Surviving Corporation or any officer or director thereof ("Damages"): (a) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of relating to or relating to: (i) constituting any misrepresentation, breach of warranty or inaccuracy in failure to perform any Company Fundamental Representation made as covenant or agreement of the date hereof Company contained in this Agreement or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior pursuant to the ClosingSection 5.2(f); (iib) resulting from any claim by a stockholder or former stockholder of the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company StockholderCompany, or any Proceeding involving the Surviving Corporation in connection with such appraisal rightsother person, firm, corporation or entity, seeking to assert, or otherwise in connection with based upon: (i) ownership or rights to ownership of any Dissenting Shares; shares of stock of the Company, or options therefor (other than the right to receive the Merger Shares pursuant to this Agreement or rights as a dissenting stockholder under the Florida Business Corporation Law); (ii) any rights as a stockholder of the Company (other than the right to receive the Merger Shares pursuant to this Agreement or rights as a dissenting stockholder under the Florida Business Corporation Law); or (iii) any breach of fiduciary duty claim with respect to that his or her shares were wrongfully repurchased by the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions;; or (ivc) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities failure of the Company Entities Stockholders to EIS, in each case, pay any amounts owed to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, Broker in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations accordance with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)4.11. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From The Indemnifying Stockholders receiving the Merger Shares pursuant to Section 1.5 shall indemnify the Parent in respect of, and after the Closinghold it harmless against, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the California Corporations Code), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the articles of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From After ------------------------------------------- the Effective Time, Parent and its affiliates (including, after the ClosingEffective Time, subject to the provisions of this Article XISurviving Corporation), Purchaserofficers, Merger Sub and their respective Affiliates and Representativesdirectors, employees, agents, successors and assigns (collectively, the “Purchaser "Parent Indemnified Parties”") shall be -------------------------- indemnified and held harmless in accordance with Section 11.2(b)by the Company Stockholders, from jointly and against severally, for any and all Losses sufferedliabilities, losses, damages of any kind, diminution in value, claims, costs, expenses, fines, fees, deficiencies, interest, awards, judgments, amounts paid in settlement and penalties (including, without limitation, reasonable attorneys', consultants' and experts' fees and expenses and other costs of defending, investigating or settling claims) suffered or incurred by them (including, without limitation, in connection with any action brought or sustained otherwise initiated by any of them them), reduced by any recovery by Parent actually received under insurance policies (such reduction to be net of any out-of-pocket expenses, increases in premiums or to which any of them becomes subjectdeductible incurred in obtaining such reduction) (hereinafter, resulting froma "Loss"), ---- arising out of or relating toresulting from: (i) any the breach of any representation or inaccuracy warranty (in any Company Fundamental Representation made as each case, solely for purposes of determining the amount of the date hereof or as of Loss resulting from such breach, and not for determining the Closing Date (or, in the case of representations and warranties that by their terms speak as existence of a specific datebreach, without giving any effect as of such dateto materiality qualifications contained therein) or in any certificate delivered made by the Company prior to in this Agreement or any Company Stockholder in the ClosingVoting Agreements; (ii) the exercise or demand breach of any appraisal covenant or dissenters’ rights under applicable Law agreement made by the Company in this Agreement or any Company Stockholder, or any Proceeding involving Stockholder in the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares;Voting Agreements; or (iii) any breach of fiduciary duty claim with respect to the Companyall costs, fees or expenses incurred by the Company Board, or in connection with this Agreement and the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation transactions contemplated hereby in excess of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Aggregate Fees. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable Notwithstanding anything to the Purchaser Indemnified Parties pursuant contrary contained in this Agreement, except with respect to Section 11.2(a)(i) claims based on fraud or (v) shall be satisfied willful misconduct: (i) firstin seeking indemnification for Losses under this Article IX, from the Purchaser Common Stock included Parent Indemnified Parties shall exercise their remedies solely and exclusively with respect to the Escrow Shares in the Indemnity Shares Amount (up to Escrow Fund; provided, -------- however, that no such claim for Losses will be asserted after the retention amount expiration of ------- the R&W Insurance Policy), Escrow Period; (ii) second, from (A) no Company Stockholder shall have any liability to a Parent Indemnified Party under this Agreement or the R&W Insurance Policy (Voting Agreements except to the extent of the limits therein), Escrow Shares attributable to such Company Stockholder and (B) the remedies set forth in this Article IX shall be the exclusive remedies of Parent and the other Parent Indemnified Parties hereunder against any Company Stockholder; and (iii) third, no indemnification payment by the Company Stockholders with respect to any indemnifiable Loss otherwise payable under Section 9.02(a) and arising out of or resulting from the Purchaser causes enumerated in Section 9.02(a)(i) shall be payable until such time as all such indemnifiable Losses shall aggregate to more than $400,000, after which time the Company Stockholders shall be liable in full for all indemnifiable Losses (including the first $400,000); provided, however, that the limitations set forth above in this clause (iii) -------- ------- shall not be operative with respect to Losses arising from breaches of any of the representations and warranties set forth in Sections 3.01, 3.02, 3.03, 3.04, 3.05, 3.06, 3.13, 3.15, 3.16 and 3.20. (c) The parties agree that any payment required to be made by Parent to compensate the Company Stockholders for any Loss incurred by such Company Stockholder as a result of a breach by Parent or Merger Sub of any of its representations and warranties in this Agreement shall be paid in cash; provided, however, that in no event shall cash be paid to the extent that such -------- ------- payment or portion of such payment, when aggregated with any other payments made for Losses pursuant to this Article IX and other non-stock consideration paid to the Company Stockholders (including, without limitation, cash paid for fractional shares and Dissenting Shares, if any) would equal or exceed an amount such that the Parent Common Stock included would constitute less than eighty percent (80%) of total Merger consideration (including payments for Losses pursuant to this Article IX). Any such excess shall be paid in shares of Parent Common Stock, which shall be valued by dividing the Indemnity Shares Amount and dollar amount of the Loss by the average closing price per share of Parent Common Stock on The Nasdaq National Market for the thirty consecutive trading days immediately preceding the date of the determination by a court or arbitrator having competent jurisdiction over the matters relating to the claim (iv)or the date of the written instructions or deemed acknowledgment of the claim by Parent, as the case may be, if applicable, from EIS pursuant no such determination is obtained) as to the Spin-Off Documentsamount of any claim for indemnification.

Indemnification by the Company Stockholders. The Company Stockholders shall, on a basis providing for equal culpability (except as otherwise provided in clause (c) below), indemnify the Buyer in respect of, and hold it harmless against, any and all Damages incurred or suffered by the Company, the Surviving Corporation, the Buyer or any Affiliate thereof resulting from, relating to or constituting: (a) From any breach, as of the date of this Agreement or as of the Closing Date, of any representation or warranty of the Company contained in this Agreement; (b) any failure to perform any covenant or agreement of the Company or any Company Stockholder contained in this Agreement; (c) any failure of any Company Stockholder to have good, valid and after the Closing, subject marketable title to the provisions issued and outstanding Company Shares issued in the name of this Article XIsuch Company Stockholder, Purchaser, Merger Sub free and their respective Affiliates and Representatives, successors and assigns clear of all Security Interests (collectively, with respect to which the “Purchaser Indemnified Parties”) Company Stockholders' indemnification obligation shall be indemnified several and held harmless not joint); (d) any claim by a stockholder or former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Certificate of Incorporation or By-laws of the Company; or (iv) any claim that his, her or its shares were wrongfully repurchased by the Company; (e) any Litigation Matter; (f) any failure of the Buyer to recognize as revenue in accordance with Section 11.2(b)GAAP, an amount equal to the difference between (i) $1,350,000 and (ii) revenue recognized by the Company in accordance with GAAP between January 1, 2007 and the Closing Date, up to a maximum of $150,000 per calendar month or prorated portion thereof, under the terms of the contract listed on Schedule VII during the period commencing on the Closing Date and ending on the date that is nine months following the Closing Date unless, prior to the end of the eighth month of such nine-month period, the contract listed on Schedule VII is terminated by either party thereto other than for cause and the Buyer and enters into a new agreement with the third party listed on Schedule VII for the same or substantially the same services as set forth in the contract listed on Schedule VII within 60 days of such termination; (g) any obligation of the Buyer, pursuant to the terms of the contract listed on Schedule VIII, to refund any portion of the $1,187,525 prepayment received by the Company under such contract that arises during the period commencing on the Closing Date and ending on the date that is 18 months following the Closing Date; (h) with respect to any customer listed on Schedule IV attached hereto, (i) any failure of the ready-for-use date (as defined in the Company's standard customer contract) or similar date if such term is not used in the applicable customer agreement to occur prior to the date that is nine months following the Closing Date; (ii) any failure of such customer's trial or termination for convenience period to lapse following the applicable ready-for-use date or similar date; or (iii) any failure to collect at least one payment from such customer, in the amount set forth opposite the name of such customer on Schedule IV attached hereto, on or prior to such date unless, with respect to each customer listed on Schedule IV, prior to the end of the eighth month of such nine-month period, such contract listed on Schedule IV is terminated by either party thereto other than for cause and against any and all Losses suffered, incurred the Buyer enters into a new agreement with such customer for the same or sustained by any substantially the same services as set forth in the applicable contract for such customer within 60 days of them or to which any of them becomes subject, resulting from, arising out of or relating to:such termination; or (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights claim arising under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Article VIII. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From The Company Stockholders shall indemnify the Parent in respect of, and after the Closinghold it harmless against, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company that are not shown by the Company as being issued and outstanding as of immediately prior to the Transactions; Effective Date; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the MCA), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From The Indemnifying Stockholders receiving the Merger Shares pursuant to Section 1.8 shall indemnify the Parent in respect of, and after the Closinghold it harmless against, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company that are not shown by the Company as being issued and outstanding as of immediately prior to the Transactions; Effective Date; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the DGCL), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectivelyEffective Time, the “Purchaser Indemnified Parties”Company Stockholders shall, except as otherwise provided in paragraph (c) shall be indemnified below, jointly and held severally indemnify the Buyer in respect of, and hold it harmless in accordance with Section 11.2(b)against, from and against any and all Losses suffered, Damages incurred or sustained suffered by the Company, the Surviving Corporation, the Buyer or any of them or to which any of them becomes subject, Affiliate thereof resulting from, arising out of relating to or relating toconstituting: (ia) any breach of or inaccuracy in any Company Fundamental Representation made breach, as of the date hereof of this Agreement or as of the Closing Date (orDate, in the case of representations and warranties that by their terms speak as any representation or warranty of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closingcontained in this Agreement; (iib) any failure to perform any covenant or agreement of the exercise Company or demand any Company Stockholder contained in this Agreement; (c) any failure of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares issued in the name of such Company Stockholder, free and clear of all Security Interests (it being understood that the indemnity provided for in this paragraph (c) shall be on a several and not joint basis); (d) any claim by a stockholder or former stockholder of the Company, or any Proceeding involving the Surviving Corporation in connection with such appraisal rightsother person or entity, seeking to assert, or otherwise in connection with based upon: (i) ownership or rights to ownership of any Dissenting Shares; shares of stock of the Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement), including any option (other than those options assumed by the Buyer pursuant to Section 1.9), preemptive rights or rights to notice or to vote; (iii) any breach rights under the Certificate of fiduciary duty claim with respect to Incorporation or By-laws of the Company, the Company Board, ; or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d)Company; (ve) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); andLitigation Matter; (vif) any Liabilities, other than Income Tax-related Liabilities, of EIS or claim arising out of or relating to the conduct under Article VIII; (g) any of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities matters set forth in paragraph 2 of Section 2.1 of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1).Disclosure Schedule; or (bh) Purchaser shallany appraisal rights claims and/or claims alleging any breach of fiduciary duty, breach of good faith and shall cause the Purchaser Indemnified Parties tofair dealing, use commercially reasonable efforts to recover breach of duty of independence, fraud and/or derivative lawsuits instituted by any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) holder or (v) shall be satisfied (i) first, from the Purchaser holders of Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documentsand/or Preferred Shares.

Indemnification by the Company Stockholders. Rohix Xxxx (xxe "Indemnifying Stockholder") shall indemnify the Buyer in respect of, and hold it harmless against, any and all debts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or suffered by the Company or the Buyer or any Affiliate thereof resulting from, relating to or constituting: (a) From any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company Stockholders or the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and after the Closing, subject marketable title to the provisions issued and outstanding Common Shares issued in the name of this Article XIsuch Company Stockholder, Purchaserfree and clear of all Security Interests; or (c) any claim by a stockholder or former stockholder of the Company, Merger Sub and their respective Affiliates and Representativesor any other person or entity, successors and assigns (collectivelyseeking to assert, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: based upon: (i) ownership or rights to ownership of any breach shares of or inaccuracy in any Company Fundamental Representation made as stock of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; Company; (ii) the exercise any rights of a stockholder, including any option, preemptive rights or demand of any appraisal rights to notice or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; to vote; (iii) any breach rights under the Articles of fiduciary duty claim with respect to Incorporation or By-laws of the Company, the Company Board, ; or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders receiving Merger Shares pursuant to Section 1.5 (the “Indemnifying Stockholders”) shall, for a period commencing from the Closing Date and ending on the first anniversary of the Closing Date, severally, not jointly, pro rata in such proportion as the number of Merger Shares received by each Indemnifying Stockholder pursuant to Section 1.5 bears to the total number of Merger Shares received by all Indemnifying Stockholders pursuant to Section 1.5, indemnify the Parent in respect of, and hold it harmless against, any and all debts, obligations losses, liabilities, deficiencies, damages, fines, fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (collectively, “Damages”) incurred or suffered by the Surviving Corporation or the Parent or any Affiliate thereof resulting from: (a) From and after the Closingany misrepresentation or breach of warranty by, subject or failure to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectivelyperform any covenant or agreement of, the “Purchaser Indemnified Parties”Company contained in this Agreement or the Company Certificate; (b) shall be indemnified and held harmless in accordance with Section 11.2(b)any claim by a stockholder or former stockholder of the Company, from and against or any and all Losses sufferedother person or entity, incurred seeking to assert, or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: based upon: (i) ownership or rights to ownership of any breach shares of or inaccuracy in any Company Fundamental Representation made as stock of the date hereof or as Company prior to the Effective Time; (ii) any rights of a stockholder prior to the Closing Date Effective Time (or, in the case of representations both (i) and warranties (ii), other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware Act), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company prior to the Effective Time; or (iv) any claim that by their terms speak as of a specific datehis, as of such date) her or in any certificate delivered its shares were wrongfully repurchased by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Effective Time; and (vic) any Liabilitiesclaim for brokers’ or finders’ fees or agents’ commissions arising from or through the Company, other than Income Taxany of its pre-related LiabilitiesMerger Affiliates or any Company Stockholder in connection with the negotiation or consummation of the transactions contemplated by this Agreement, except for claims arising under the Placement Agency Agreement with the Placement Agent or the agreements listed in Section 2.25 of EIS the Company Disclosure Schedule. Notwithstanding the foregoing, except with respect to any fraud or arising out of willful misconduct by the Company in connection with this Agreement, the Parent’s sole and exclusive right to collect any Damages with respect to claims resulting from or relating to the conduct any misrepresentation or breach of the EIS Business whether prior to, at warranty of or following the Closing failure to perform any covenant or the Spin-Off, or any payment obligations or other Liabilities of agreement by the Company Entities Stockholders contained in this Agreement shall be pursuant to EISa sale, in each casethe manner set forth in the Indemnification Escrow Agreement, of Indemnification Escrow Shares issued to such Indemnifying Stockholder by the Parent pursuant to Section 1.5(b) above. Notwithstanding anything to the extent imposed on contrary contained herein, except with respect to any fraud or willful misconduct by an Indemnifying Stockholder in connection with this Agreement, the indemnification of Parent by the Indemnifying Stockholders shall be without personal liability of or personal recourse against any Indemnifying Stockholder and the sole recourse of Parent and the Surviving Company against any Company Entity other than those obligations which are Stockholder shall be the express liability of the Company Indemnification Escrow Shares pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Indemnification Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Agreement. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders identified on Schedule 6.1 hereto (a) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified PartiesIndemnifying Stockholders”) receiving the Merger Shares pursuant to Section 1.6 shall be indemnified indemnify the Parent in respect of, and held hold it harmless in accordance with Section 11.2(b)against, from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company that are not shown by the Company as being issued and outstanding as of immediately prior to the Transactions; Effective Date; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the NRS), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. Subject to the limitations set forth in this Article VI, the Company Stockholders (aby virtue of the approval of the Merger by the Company Stockholders) From severally in accordance with their respective Pro Rata Share (as set forth in the Payment Spreadsheet), shall defend, indemnify and hold harmless Parent and its Affiliates (including the Companies after the Closing), subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates shareholders, partners, members, managers, officers, directors and Representatives, successors and assigns employees (collectively, the each a “Purchaser Parent Indemnified PartiesParty”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting fromLosses, arising out of or relating toresulting from: (ia) any inaccuracy in or breach of any of the representations or warranties made by the Company in this Agreement or any Ancillary Agreement; (b) any breach or non-fulfillment of any covenant or inaccuracy in agreement to be performed by the Company, any Company Fundamental Representation made as Stockholder, the Stockholder Representative or any of their respective Affiliates pursuant to this Agreement or any Ancillary Agreement; (c) (i) all Taxes (or the non-payment thereof) not disclosed on the Closing Balance Sheet of the date hereof Companies with respect to any Pre-Closing Tax Period and, (ii) with respect to Straddle Period, all Taxes (or as the non-payment thereof) not disclosed on the Closing Balance Sheet of the Closing Date (or, in Companies with respect to the case of representations and warranties that by their terms speak as of a specific date, as portion of such datetaxable year or period ending on and including the Closing Date; (iii) all Taxes not disclosed on the Closing Balance Sheet of any member of an affiliated, consolidated, combined or in unitary group of which the Companies (or any certificate delivered by predecessor of any of the Company foregoing) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation §1.1502-6 or any analogous or similar state, local, or non-U.S. law or regulation, and (iv) any and all Taxes not disclosed on the Closing Balance Sheet of any Person imposed on any of the Companies or any of the Washington Entities arising under the principles of transferee or successor liability or by contract or pursuant to any law, rule, or regulation, which Taxes relate to an event or transaction occurring before the Closing; (iid) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding shares of Company Capital Stock issued in the name of such Company Stockholder, free and clear of all Liens; (e) any inaccuracy in the Payment Spreadsheet, as in effect from time to time; (f) the exercise or demand matters set forth on Section 6.02(f) of the Disclosure Schedule; (g) any appraisal or dissenters’ rights under applicable Law Action by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with Stockholder relating to such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim Person's rights with respect to the Company, the Company BoardMerger Consideration, or the Surviving Corporation or calculations and determinations set forth on the Company Shares arising out of or relating to the Transactions;Payment Spreadsheet; and (ivh) any claims relating Action by any Company Stockholder who has properly exercised appraisal rights related to their Company Capital Stock in accordance with Section 262 of the allocation DGCL resulting in Losses that are in excess of the value of such Company’s Stockholder’s Pro Rata Share of the Merger Consideration or (and/or that such Company Stockholder would have received hereunder had such holders not been holders of Dissenting Shares. Notwithstanding anything to the allocation contrary provided for herein, the Company Stockholders shall be obligated to pay any of Parent’s reasonable attorney’s fees and the cost of enforcing any adjustment thereto pursuant right to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) indemnification hereunder regardless of the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification recovery by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses a Company Stockholder under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.16.02(h). (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From The Indemnifying Stockholders receiving the Merger Shares pursuant to Section 1.5 shall indemnify the Parent in respect of, and after the Closinghold it harmless against, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the ARS), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders receiving Merger Shares pursuant to Section 1.5 (the “Indemnifying Stockholders”) shall, for a period commencing from the Closing Date and ending on the first anniversary of the Closing Date, severally, not jointly, pro rata in such proportion as the number of Merger Shares received by each Indemnifying Stockholder pursuant to Section 1.5 bears to the total number of Merger Shares received by all Indemnifying Stockholders pursuant to Section 1.5, indemnify the Parent in respect of, and hold it harmless against, any and all debts, obligations losses, liabilities, deficiencies, damages, fines, fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (collectively, “Damages”) incurred or suffered by the Surviving Corporation or the Parent or any Affiliate thereof resulting from: (a) From and after the Closingany misrepresentation or breach of warranty by, subject or failure to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectivelyperform any covenant or agreement of, the “Purchaser Indemnified Parties”Company contained in this Agreement or the Company Certificate; (b) shall be indemnified and held harmless in accordance with Section 11.2(b)any claim by a stockholder or former stockholder of the Company, from and against or any and all Losses sufferedother person or entity, incurred seeking to assert, or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: based upon: (i) ownership or rights to ownership of any breach shares of or inaccuracy in any Company Fundamental Representation made as stock of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; Effective Time; (ii) any rights of a stockholder prior to the exercise Effective Time (in the case of both (i) and (ii), other than the right to receive the Merger Shares pursuant to this Agreement or demand of any appraisal or dissenters’ rights under the applicable Law by provisions of the WBCA), including any Company Stockholderoption, preemptive rights or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, rights to notice or otherwise in connection with any Dissenting Shares; to vote; or (iii) any breach rights under the articles of fiduciary duty claim with respect incorporation or bylaws of the Company prior to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Effective Time; and (vic) any Liabilitiesclaim for brokers’ or finders’ fees or agents’ commissions arising from or through the Company, any of its pre-Merger Affiliates or any Company Stockholder in connection with the negotiation or consummation of the transactions contemplated by this Agreement or any of the other than Income Tax-related LiabilitiesTransaction Documents. Notwithstanding the foregoing, except with respect to any fraud or willful misconduct by the Company in connection with this Agreement, the Parent’s sole and exclusive right to collect any Damages with respect to any claims under this Agreement shall be pursuant to a sale, in the manner set forth in the CCI Indemnification Escrow Agreement, of EIS CCI Indemnification Escrow Shares issued to such Indemnifying Stockholder by the Parent pursuant to Section 1.5(b) above. Notwithstanding anything to the contrary contained herein, except with respect to any fraud or arising out willful misconduct by an Indemnifying Stockholder in connection with this Agreement, the indemnification of Parent by the Indemnifying Stockholders shall be without personal liability of or relating to personal recourse against any Indemnifying Stockholder and the conduct sole recourse of Parent and the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Surviving Company Entities to EIS, in each case, to the extent imposed on against any Company Entity other than those obligations which are Stockholder shall be the express liability of the Company CCI Indemnification Escrow Shares pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of CCI Indemnification Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Agreement. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From The Company Stockholders, jointly and after severally, shall indemnify the ClosingBuyer in respect of, subject to the provisions of this Article XIand hold it harmless against, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations, and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses, and expenses (including amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Buyer or any Affiliate thereof resulting from, relating to, or constituting: (a) any misrepresentation, breach of warranty, or failure to perform any covenant or agreement of the Company Shares arising out contained in this Agreement, the Zehrxx Xxxtificate, or the Company Certificate; (b) any failure of or relating any Company Stockholder to have good, valid, and marketable title to the Transactionsissued and outstanding Common Shares issued in the name of such Company Stockholder, free and clear of all Security Interests; (c) any litigation listed on Section 2.19 of the Disclosure Schedule; and/or (d) any claim by a stockholder or former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement), including any option, preemptive rights, or rights to notice or to vote; (iii) any rights under the Articles of Incorporation or By-laws of the Company; or (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or claim that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; providedhis, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Offher, or any payment obligations or other Liabilities of its shares were wrongfully repurchased by the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From The Indemnifying Stockholders receiving the Merger Shares pursuant to Section 1.5 shall indemnify the Parent in respect of, and after the Closinghold it harmless against, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (“Damages”) incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Parent or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Nevada Revise Statutes and California Corporations Code) including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. (a) From After the Effective Time, Parent and its Affiliates (including, after the ClosingEffective Time, subject to the provisions of this Article XISurviving Corporation), Purchaserofficers, Merger Sub and their respective Affiliates and Representativesdirectors, employees, agents, successors and assigns (each a “Parent Indemnified Party” and collectively, the “Purchaser Parent Indemnified Parties”) shall be indemnified and held harmless by the Company Stockholders (in accordance with Section 11.2(b), from and against proportion to their respective Company Common Stock Ratios) for any and all Losses sufferedLiabilities, losses, damages of any kind, diminution in value, claims, costs, expenses, fines, fees, deficiencies, interest, awards, judgments, amounts paid in settlement and penalties (including, without limitation, attorneys’, consultants’ and experts’ fees and expenses and other costs of defending, investigating or settling claims) actually suffered or incurred by them (including, without limitation, in connection with any action brought or sustained otherwise initiated by any of them or to which any of them becomes subjectthem) (hereinafter, resulting from“Loss(es)”), arising out of or relating toresulting from: (i) any breach of or inaccuracy in or breach (or any Company Fundamental Representation made claim by any third party alleging or constituting an inaccuracy or breach) of any representation or warranty of the Company, as of the date hereof of this Agreement, contained in this Agreement or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) Ancillary Agreements or in any certificate other instrument delivered by the Company prior pursuant to the Closingthis Agreement; (ii) the exercise or demand any breach of any appraisal covenant or dissenters’ rights under applicable Law agreement made by any the Company Stockholder, in this Agreement or in the Ancillary Agreements or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares;other instrument delivered pursuant to this Agreement; or (iii) Losses from breach of contract or other claims made by any party alleging to have had a contractual or other right to acquire Company Capital Stock or any of the Company’s Assets and Properties, or (iv) Losses in excess of $53,200 resulting (A) from any Action or Proceeding brought by or on behalf of Xxxxxx Xxxxxxx or (B) in connection with the disclosure in Section 2.11(d) of the Company Disclosure Schedule; or (v) Losses resulting from any action taken by the relevant Taxing Authority with respect to the deductions and related transactions disclosed in Section 2.11(a) of the Company Disclosure Schedule; or (vi) Losses with respect to any unfunded pension or similar defined benefit obligations under the PBSL, BV Pension Plan related to the period prior to the Closing and not reflected in the Interim Financial Statements; or (vii) Losses with respect to any Company Expenses required to be paid by the Company Stockholders pursuant to Section 5.5; or (viii) Losses with respect to any breach of fiduciary duty claim the representations, warranties and covenants contained in Section 2.30 and the last sentence of Section 5.10. (b) Notwithstanding anything to the contrary contained in this Agreement, except with respect to claims based on fraud committed by the Company, the Company BoardSubsidiaries, or the Surviving Corporation or Company Stockholders: (i) the Company Shares maximum aggregate amount of indemnifiable Losses arising out of or relating to resulting from the Transactions; causes enumerated in Section 7.2(a) that may be recovered from the Company Stockholders shall not exceed $6,223,375 (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d“Maximum Indemnity”)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to if the extent such Pre-Closing Taxes Note Conditions are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement satisfied on or prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (andDecember 31, for 2002, then the avoidance of doubt, the Survival Expiration Date Maximum Indemnity shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)$4,223,375; and (viii) no indemnification payment by the Company Stockholders with respect to any Liabilities, other than Income Tax-related Liabilities, of EIS or indemnifiable Loss otherwise payable under Section 7.2(a) and arising out of or relating resulting from the causes enumerated in Section 7.2(a) shall be payable until such time as all such indemnifiable Losses shall aggregate to more than $150,000, after which time the conduct Company Stockholders shall be liable in full for all indemnifiable Losses in excess of $150,000, subject to clause (i) above; provided, however, that the EIS Business whether prior to, at limitations set forth above in each of clauses (i) and (ii) shall not be operative with respect to Losses (A) arising from any inaccuracy in or following the Closing or the Spin-Off, breach (or any payment obligations claim by any third party alleging or other Liabilities constituting an inaccuracy or breach) of any representation or warranty of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided contained in Section 11.12.2 or Section 2.3(b), shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1). (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (vB) shall be satisfied (i) first, from the Purchaser Common Stock included described in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and clauses (iv), if applicable(v), from EIS pursuant to the Spin-Off Documents(vi), (vii) and (viii) of Section 7.2(a).

Indemnification by the Company Stockholders. The Company Stockholders receiving the Merger Shares pursuant to Section 1.5 (a) From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”"Indemnifying Stockholders") shall be indemnified indemnify the Buyer in respect of, and held hold it harmless in accordance with Section 11.2(b)against, from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Buyer or any Affiliate thereof resulting from, relating to or constituting: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company contained in this Agreement or the Company Certificate; (b) any failure of any Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares arising out issued in the name of such Company Stockholder, free and clear of all Security Interests; or (c) any claim by a stockholder or relating former stockholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Transactions; Company; (ii) any rights of a stockholder (other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware General Corporation Law), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the Certificate of Incorporation or By-laws of the Company; or (iv) any claims relating to claim that his, her or its shares were wrongfully repurchased by the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Company. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

Indemnification by the Company Stockholders. The Company Stockholders receiving the Merger Shares pursuant to Section 1.5 (athe "Indemnifying Stockholders") From and after the Closingshall, subject to the provisions and limitations of this Article XIVI, Purchaserseverally and not jointly, in proportion to their interests in the Merger Sub Shares held under the Escrow Agreement, indemnify the Buyer in respect of, and their respective Affiliates and Representativeshold it harmless against, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffereddebts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") incurred or sustained suffered by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: (i) any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of Buyer or any Affiliate thereof resulting from, relating to the Transactions;or constituting: (iva) any claims relating misrepresentation, breach of warranty or failure to the allocation of the Merger Consideration perform any covenant or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and (vi) any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities agreement of the Company Entities to EIS, contained in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of this Agreement or the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1).Certificate; (b) Purchaser shallany Third Party Expenses incurred by the Company in excess of the amounts set forth in the proviso to Section 4.7; (c) any claim by Key in connection with, and shall cause the Purchaser Indemnified Parties related to, use commercially reasonable efforts or arising out of, (A) ownership or rights to recover ownership of any Losses which may be indemnified under Section 11.2(ashares of capital stock, warrants or other securities of the Company, or (B) from any claim by Key for a payment of money; any claim by NFI in connection with, related to, or arising out of, the R&W Insurance Policy. Any amounts payable NFI Services Agreement; and any claim by Deloitte & Touche LLP in connection with, related to, or arising out of, the recapture of any discounts, write-offs or xxxx-xxxxx on professional service fees and expenses previously granted to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off DocumentsCompany.

Indemnification by the Company Stockholders. The Company Stockholders identified on Exhibit I hereto receiving Merger Shares pursuant to Section 1.5 (the “Indemnifying Stockholders”) shall, for a period commencing from the Closing Date and ending eighteen (18) months the Closing Date, severally, not jointly, pro rata in such proportion as the number of Merger Shares received by each Indemnifying Stockholder pursuant to Section 1.5 bears to the total number of Merger Shares received by all Indemnifying Stockholders pursuant to Section 1.5, indemnify the Parent in respect of, and hold it harmless against, any and all debts, obligations losses, liabilities, deficiencies, damages, fines, fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) (collectively, “Damages”) incurred or suffered by the Surviving Corporation or the Parent or any Affiliate thereof resulting from: (a) From and after the Closingany misrepresentation or breach of warranty by, subject or failure to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectivelyperform any covenant or agreement of, the “Purchaser Indemnified Parties”Company contained in this Agreement or the Company Certificate; (b) shall be indemnified and held harmless in accordance with Section 11.2(b)any claim by a stockholder or former stockholder of the Company, from and against or any and all Losses sufferedother person or entity, incurred seeking to assert, or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to: based upon: (i) ownership or rights to ownership of any breach shares of or inaccuracy in any Company Fundamental Representation made as stock of the date hereof or as Company prior to the Effective Time; (ii) any rights of a stockholder prior to the Closing Date Effective Time (or, in the case of representations both (i) and warranties (ii), other than the right to receive the Merger Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the Delaware Act), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the certificate of incorporation or bylaws of the Company prior to the Effective Time; or (iv) any claim that by their terms speak as of a specific datehis, as of such date) her or in any certificate delivered its shares were wrongfully repurchased by the Company prior to the Closing; (ii) the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares; (iii) any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions; (iv) any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d); (v) the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Effective Time; and (vic) any Liabilitiesclaim for brokers’ or finders’ fees or agents’ commissions arising from or through the Company, other than Income Taxany of its pre-related LiabilitiesMerger Affiliates or any Company Stockholder in connection with the negotiation or consummation of the transactions contemplated by this Agreement, except for claims arising under the Placement Agency Agreement with the Placement Agent or the agreements listed in Section 2.27 of EIS the Company Disclosure Schedule. (d) any violation of, or any liability under, any Environmental Law (an “Environmental Claim”) relating to or arising out from the activities and operations of the Company or any of its Subsidiaries prior to the Effective Time, regardless of when the environmental hazard giving rise to such Environmental Claim is discovered, and any liability in regards to any Mining Interests, for any all obligations, whether arising under contract, applicable Laws or otherwise, to abandon mines and close, decommission, dismantle and remove structures, buildings, equipment and other facilities and to restore and reclaim the sites for any of the foregoing and any lands used to gain access thereto (collectively, “Abandonment and Reclamation Liabilities”) of the Company or any of its Subsidiaries (or their respective successors) relating to any mines, structures, buildings, equipment and other facilities or any lands that were, or were required pursuant to applicable Law to have been, abandoned, decommissioned or reclaimed, as the case may be, prior to the Effective Time. Notwithstanding the foregoing, except with respect to any fraud or willful misconduct by the Company in connection with this Agreement, the Parent’s sole and exclusive right to collect any Damages with respect to claims resulting from or relating to the conduct any misrepresentation or breach of the EIS Business whether prior to, at warranty of or following the Closing failure to perform any covenant or the Spin-Off, or any payment obligations or other Liabilities of agreement by the Company Entities Stockholders contained in this Agreement shall be pursuant to EISa sale, in each casethe manner set forth in the Indemnification Shares Escrow Agreement, of Indemnification Escrow Shares issued to such Indemnifying Stockholder by the Parent pursuant to Section 1.5(b) above. Notwithstanding anything to the extent imposed on contrary contained herein, except with respect to any fraud or willful misconduct by an Indemnifying Stockholder in connection with this Agreement, the indemnification of Parent by the Indemnifying Stockholders shall be without personal liability of or personal recourse against any Indemnifying Stockholder and the sole recourse of Parent and the Surviving Company against any Company Entity other than those obligations which are Stockholder shall be the express liability of the Company Indemnification Escrow Shares pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Indemnification Shares Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1)Agreement. (b) Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.