Common use of Indemnification by the Company Stockholders Clause in Contracts

Indemnification by the Company Stockholders. Subject to the terms of this ARTICLE 9, each of the Company Stockholders, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointly, shall indemnify and hold harmless Parent and its Affiliates (including the Company after the Effective Time) and their respective officers, directors, managers, members, partners, employees, agents and representatives, successors and assigns (the “Parent Indemnified Parties”) against, and reimburse any Parent Indemnified Party for, all Damages that such Parent Indemnified Party suffers or incurs as a result of: (a) the failure of any representation or warranty of the Company contained in ARTICLE 3 of this Agreement to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualified; (c) any Indemnified Copyright Action (including any Damages arising prior to or after the Effective Time); (d) the amount of any Dissenting Share Payments; (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Party.

Indemnification by the Company Stockholders. Subject to the terms of limitations set forth in this ARTICLE 9Article IX, each of from and after the Effective Time, the Company Stockholders, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointly, Stockholders shall indemnify and hold harmless Parent and its Affiliates (including Parent, the Company after the Effective Time) and their respective officers, directors, managers, members, partners, agents and employees, agents and representativeseach person, successors and assigns if any, who controls or may control Parent within the meaning of the Securities Act (each of the foregoing being referred to individually as an “Parent Indemnified PartiesPerson” and collectively as “Parent Indemnified Persons”) againstfrom and against any and all losses, liabilities, damages, fees, reductions in value, costs and reimburse expenses, including costs of investigation, defense and settlement and reasonable fees and expenses of lawyers (other than costs relating to in-house legal counsel), experts and other professionals, but excluding any punitive damages (except to the extent payable by any Indemnified Person to a third person pursuant to a third-party claim) (collectively, “Parent Indemnified Party forIndemnifiable Damages”), all Damages that such Parent Indemnified Party suffers whether or incurs as not due to a result third-party claim, arising out of: , resulting from or in connection with, or otherwise proximately caused by (ai) the any breach, failure or inaccuracy of any representation or warranty made by the Company in this Agreement or the Company Disclosure Schedule (including any exhibit or schedule to the Company Disclosure Schedule) to be true and correct as of the date of this Agreement and as of the Closing Date as though such representation or warranty were made as of the Closing Date (except in the case of representations and warranties which by their terms speak only as of a specific date or dates, which representations and warranties shall be true and correct as of such date), (ii) any failure of any certification, representation or warranty made by the Company contained in ARTICLE 3 any certificate delivered to Parent pursuant to any provision of this Agreement to be true and correct as of the Effective Date and as date such certificate is delivered to Parent, (iii) any breach of or default in connection with any of the covenants or agreements made by the Company in this Agreement or the Company Disclosure Schedule (including any exhibit or schedule to the Company Disclosure Schedule), (iv) any inaccuracies in the Final Conversion Schedule, (v) any payments paid with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the amounts that otherwise would have been payable pursuant to Section 2.01(a) upon the exchange of such Dissenting Shares, and (vi) any Taxes of the Company for any Pre-Closing Date as if made on the Closing DatePeriod, except to the extent that such Taxes were reflected as a reserve on the Reference Balance Sheet. Materiality standards or qualifications in any representation, warranty or covenant shall only be taken into account in determining whether a breach of or default in connection with such representation representation, warranty or warranty relates to a specific date, in which case the covenant (or failure of such any representation or warranty to be true and correct as of such datecorrect) exists, and shall not be taken into account in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualified; (c) any Indemnified Copyright Action (including any Damages arising prior to or after the Effective Time); (d) the amount of any Dissenting Share Payments; (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior Parent Indemnifiable Damages with respect to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Partiessuch breach, the default or failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Party.

Indemnification by the Company Stockholders. Subject to the terms limitations set forth in the remainder of this ARTICLE 9Article IX, each of the Indemnifying Company Stockholders, Stockholder shall indemnify (severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointly) Parent, shall indemnify and hold harmless Parent and or any of its Affiliates (including the Company after the Effective Time) Surviving Corporation and their respective its Subsidiaries), officers, directors, managersemployees or agents (collectively, members, partners, employees, agents and representatives, successors and assigns (the “Parent Buyer Indemnified Parties”) against, against and reimburse hold Buyer Indemnified Parties harmless from any Parent and all Damages suffered or incurred by any Buyer Indemnified Party forto the extent arising from: (i) any breach of, all Damages that such Parent Indemnified Party suffers or incurs as a result of: (a) the failure of any inaccuracy or misrepresentation with respect to, any representation or warranty of the Company contained in ARTICLE 3 Article IV, (ii) any breach of this Agreement any covenant or agreement of the Company to be true and correct as performed prior to Closing, (iii) a Company stockholder exercising appraisal rights in accordance with Section 262 of the Effective Date DGCL, or (iv) a Legal Action is brought against the Company or Parent by a Company stockholder, their agent or Representative in connection with the Merger; provided that: (a) the Buyer Indemnified Parties shall not be entitled to recover under Section 9.02(i) until the total amount which the Buyer Indemnified Parties would otherwise recover under Section 9.02(i) (but for this Section 9.02(b)) exceeds on a cumulative basis an amount equal to $75,000 (the “Deductible”), and as of the Closing Date as if made on the Closing Date, except then only to the extent that of any such representation excess; provided, however, such Deductible shall not apply to Parent’s Damages arising from a Company stockholder exercising appraisal rights in accordance with Section 262 of the DGCL, or warranty relates to a specific date, Legal Action brought by a Company stockholder against the Company or Parent in which case connection with the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correctMerger; (b) the breach aggregate indemnification obligation of the Indemnifying Company Stockholders under Section 9.02(i) shall in no event exceed the amount calculated by multiplying the Average Closing Price by the Company aggregate number of any of its covenants or agreements contained in this Agreement to be performed prior to Escrow Shares (the Closing in each case with Damages being determined without regard to any materiality (including the word “materialCap”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualified; (c) the liability of any Indemnifying Company Stockholder under this Section 9.02 as to any specific claim by a Buyer Indemnified Copyright Action (including any Party for Damages arising prior to or after the Effective Time);shall in no event exceed such Indemnifying Company Stockholder’s Allocation Percentage of such Damages; and (d) the amount aggregate liability of any Dissenting Share Payments; (e) the amount of (i) all Indemnifying Company Transaction Expenses in excess of $250,000 that is not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f9.02 (other than in respect of claims pursuant to Section 9.02(iii) or (iv), all Damages determined to be subject to ) shall in no event exceed such indemnification obligation Indemnifying Company Stockholder’s Allocation Percentage of the Escrow Shares and the aggregate liability of any Indemnifying Company Stockholder under Section 9.02(iii) or (iv) shall be payable in full solely by no event exceed such Stockholder PartyIndemnifying Company Stockholder’s Allocation Percentage of the Additional Escrow Shares.

Indemnification by the Company Stockholders. Subject to the terms of this ARTICLE 9limitations set forth herein, each of the Company Stockholders, severally (based on the respective Pro Rata Shares of such Company Stockholders) from and not jointly, shall indemnify and hold harmless Parent and its Affiliates (including the Company after the Effective Time, the stockholders of the Company and the holders of CVC Warrants will on a several (not joint) and their respective officerspro rata basis based on the percentage of Merger Consideration received by such stockholder or holder of a CVC Warrant defend and indemnify Parent (and, after the Closing, the Surviving Corporation) and its Affiliates, directors, managersofficers, members, partners, employees, agents and representativesstockholders, successors and assigns (collectively, the “"Parent Indemnified Parties”Indemnitees") againstagainst and hold each of them harmless from any and all losses, liabilities, Taxes, claims, suits, proceedings, demands, judgments, damages, expenses and reimburse costs, including, without limitation, reasonable counsel fees, costs and expenses (collectively, "Losses") incurred in the investigation, defense or settlement of any Parent Indemnified Party for, all Damages that claims covered by this indemnity which any such Parent Indemnified Party suffers Indemnitee may suffer or incurs as a result of: (a) incur by reason of or against the failure inaccuracy or breach of any representation of the representations, warranties, covenants, obligations or warranty agreements of the Company contained in ARTICLE 3 of this Agreement to be true and correct as or any document, certificate or agreement delivered pursuant hereto (the "Indemnifiable Damages"). The stockholders of the Effective Date Company and as the holders of the Closing Date as CVC Warrants shall be obligated to indemnify the Parent Indemnitees for Parent Indemnifiable Damages pursuant to this Section 8.2 only if a claim for indemnification is made on by the Closing Date, except Parent Indemnitees prior to the extent Expiration Date in the manner set forth in Section 8.6 below. The stockholders of the Company and the holders of CVC Warrants acknowledge that such Parent Indemnifiable Damages would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger Consideration. The Parent Indemnitees shall not be entitled to assert any claim for indemnification pursuant to this Section 8.2 (other than with respect to Section 4.3, 4.24 or 4.25) unless and until the amount of Indemnifiable Damages sustained by any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case Parent Indemnitee with Damages being determined without regard respect to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes individual matter exceeds $20,000. The stockholders of determining whether any representation or warranty that is so qualified is true and correct; (b) the breach by the Company and holders of CVC Warrants shall not be obligated to indemnify any such Parent Indemnitee with respect to any Indemnifiable Damages (other than Indemnifiable Damages arising out of or related to the inaccuracy or breach of any of its covenants the representations and warranties in Sections 4.3, 4.24 or agreements contained in this Agreement 4.25) as to be performed prior which any such Parent Indemnitee is otherwise entitled to assert a claim for indemnification unless and until the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualified; (c) any Indemnified Copyright Action (including any Damages arising prior to or after the Effective Time); (d) the aggregate amount of any Dissenting Share Payments; the Indemnifiable Damages attributable to Parent Indemnitees equals $1,500,000 (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”"Basket Amount"), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that thereafter the Indemnifying Party shall indemnify Parent Indemnitees for any amounts in excess of, and not including, the avoidance of doubt, Basket Amount. Other than with respect to a Indemnifiable Damages related to the inaccuracy or breach by a Stockholder Party giving rise of any of the representations and warranties contained in Sections 4.3, 4.24 or 4.25 (which shall not be subject to an indemnification obligation any limitation), the aggregate liability of the stockholders of the Company and the holders of CVC Warrants for Indemnifiable Damages under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation 8.2 shall be payable in full solely by such Stockholder Partylimited to Twenty Million Dollars ($20,000,000).

Indemnification by the Company Stockholders. Subject to (a) After the terms of this ARTICLE 9Effective Time, each of the Company Stockholders, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointly, shall indemnify and hold harmless Parent and its Affiliates affiliates (including the Company including, after the Effective Time) and their respective , the Surviving Corporation), officers, directors, managers, members, partners, employees, agents and representativesagents, successors and assigns (collectively, the “Parent Indemnified Parties”) againstshall be indemnified and held harmless by the Company Stockholders, for any and reimburse all liabilities, losses, damages of any Parent Indemnified Party forkind, all Damages that such Parent Indemnified Party suffers 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 incurs as a result ofsettling claims) suffered, incurred, accrued (in accordance with U.S. GAAP) or paid by them (including, without limitation, in connection with any action brought or otherwise initiated by any of them) (collectively, “Losses”), without adjustment for any insurance recovery or tax deduction relating thereto, arising out of or resulting from: (ai) the failure any inaccuracy or breach of any representation or warranty of the Company contained in ARTICLE 3 of this Agreement to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined (without regard giving effect to any materiality (including the word “material”)qualification as to materiality, Company Material Adverse Effect or similar qualifier qualifications or standards contained therein but with full effect being given to all such qualifications for purposes of determining whether therein) made by the Company or any representation or warranty that is so qualified is true and correctCompany Stockholder in the Acquisition Documents; (bii) the breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement made by the Company or any Company Stockholder in the Acquisition Documents; (iii) any inaccuracy in the information in the Closing Certificate; (iv) any third-party license fees required for the development, manufacture, marketing, distribution or sale of the Catheter Heart Valve System by the Parent or the Surviving Corporation, which, in the absence of any such license, would result in the infringement by Parent or the Surviving Corporation of the Intellectual Property or other proprietary rights of such third party; (v) Losses from breach of contract or other claims made by any party alleging to have had a contractual or other right to acquire the Company’s capital stock or assets; (vi) in the event that any Company Stockholder properly exercises appraisal rights under applicable Law, the amount, if any, by which the fair market value (determined in accordance with applicable Law) of the Dissenting Shares exceeds the amount such Company Stockholder was otherwise entitled to receive pursuant to Section 2.01 of this Agreement; (vii) any cost, loss or other expense (including the value of any Tax deduction lost) as a result of the application of Section 280G of the Code to any of the transactions contemplated by this Agreement plus any gross up amount; (viii) any fraud, willful misconduct or intentional misrepresentation on the part of the Company or the Company Stockholders (the “Fraud Claims”); or (ix) any actual or asserted (when actualized) liability for Taxes of or owed by the Company in respect of any Tax period ending on or before the Closing Date and the portion through the Closing Date of any Tax period that includes but does not end on the Closing Date (“Pre-Closing Tax Period”) to the extent that such Taxes are in excess of the amount, if any, reserved for such Taxes on the Reference Balance Sheet, as such reserve is so qualified;adjusted for the passage of time through the Closing Date in accordance with past custom and practice of Company (“Tax Claims”); provided, that for purposes of applying this subparagraph (ix) in the case of any Tax period that includes but ends after the Closing Date (each, a “Straddle Period”), Taxes based on or measured by income or receipts shall be allocated to the Pre-Closing period based on an interim closing of the books as of the close of business on the Closing Date and other Taxes shall be allocated to the Pre-Closing Period based on a daily proration of such Taxes or on such other method as may be agreed upon by Parent and the Stockholders’ Representative. (b) As used herein, “Losses” are not limited to matters asserted by third parties, but include Losses incurred or sustained by the Parent Indemnified Parties in the absence of claims by third parties. (c) As used herein, “Special Losses” shall mean any Indemnified Copyright Action Losses pursuant to Sections 9.02(a)(ii), (including any Damages arising prior to or after the Effective Timeiii); , (div), (v), (vi), (vii), (viii) the amount of any Dissenting Share Payments; (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”ix), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Party.

Indemnification by the Company Stockholders. (a) Subject to the terms of this ARTICLE 9Sections 8.01(b) and 8.03, each of Company Stockholder (collectively, the "Company StockholdersIndemnifying Parties") shall, severally (based on the respective Pro Rata Shares of such Company Stockholders) jointly and not jointlyseverally, shall indemnify and hold harmless defend Parent and its Affiliates (including the Company after the Effective Time) and their respective Affiliates, officers, directors, managers, members, partners, directors and employees, agents and representatives, successors and assigns (the “"Parent Indemnified Parties”") against, and reimburse shall hold them harmless from, any loss, liability of every type and nature (whether known or unknown, fixed or contingent), claim, including, without limitation, any third-party claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (including reasonable legal and other professional fees and expenses) (collectively, "Losses") resulting from, arising out of, or incurred by any Parent Indemnified Party forin connection with, all Damages that such Parent Indemnified Party suffers or incurs as a result ofotherwise with respect to: (ai) any breach of a representation and warranty or other statement by the failure Company contained in this Agreement, the Company Disclosure Schedule, any exhibit attached hereto, or any certificate or schedule furnished or to be furnished to Parent pursuant hereto; (ii) any breach of any representation or warranty covenant of the Company contained in ARTICLE 3 this Agreement or any exhibit attached hereto, or any certificate or schedule furnished or to be furnished to Parent pursuant hereto; (iii) the matters disclosed in Section 3.14 of the Company Disclosure Schedule; (iv) in the event that any Company Stockholder properly exercises any appraisal rights under applicable law, the amount, if any, by which the fair market value (determined in accordance with applicable law) of Dissenting Shares exceeds the amount such Company Stockholder was otherwise entitled to receive pursuant to Section 2.01 of this Agreement to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to Agreement; and (v) the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct;Third Party Expenses exceed $200,000. (b) the breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualified; (c) any Indemnified Copyright Action (including any Damages arising prior to or after At the Effective Time); , the Escrow Shares (das defined below) shall be delivered to Chase Manhattan Trust Company, N.A. as Indemnity Escrow Agent. Such Escrow Shares, together with any and all income and proceeds thereon, shall be referred to hereinafter as the amount of any Dissenting Share Payments; (e) "Indemnity Escrow Fund." The Indemnity Escrow Fund shall be available to compensate the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior Parent Indemnified Parties pursuant to the Closing indemnification obligations of the Company Indemnifying Parties. The Indemnity Escrow Fund shall be held and disbursed by the Company and (ii) all payments under Indemnity Escrow Agent in accordance with the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Party.Indemnity Escrow Agreement. The term "Escrow Shares"

Indemnification by the Company Stockholders. Subject to the terms of this ARTICLE 9, each of the limitations set forth in this Article VI, after the Closing, each Company StockholdersStockholder (each, an “Indemnifying Party”) shall, severally and not jointly (based on the respective and, subject to Section 6.2(b)(iv), in accordance with its Indemnity Pro Rata Shares of such Company Stockholders) and not jointlyShare), shall indemnify and hold harmless Parent and its Parent, the Merger Subs and, effective at the Closing, without duplication, the Surviving Entity, their ultimate parent entity, their Affiliates (including the Company after the Effective Time) and their respective officers, directors, managers, members, partners, employees, agents and agents, representatives, successors and permitted assigns (the each, an “Parent Indemnified PartiesParty”) against, from and reimburse against any Parent Losses which an Indemnified Party forsuffers, all Damages that such Parent Indemnified Party suffers sustains or incurs becomes subject to as a result ofof or in connection with: (ai) the failure a breach of any representation or warranty of made by the Company contained in ARTICLE 3 of this Agreement to be true and correct as or in any Certificate delivered by or on behalf of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, Company in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correctconnection herewith; (bii) the a breach by the Company of any covenant or agreement of its covenants or agreements the Company contained in this Agreement; (iii) any Indemnified Taxes; (iv) any Fraud, or any Willful Breach, to the extent committed as of or prior to the Closing, by or on behalf of the Company (“Company Fraud”); (v) any amounts owing to Parent pursuant to Section 1.9(d); (vi) any inaccuracy or omission in the Final Allocation Schedule, including any amounts set forth therein that are paid to a Person in excess of the amounts such Person is entitled to receive pursuant to the terms of this Agreement or any amounts a Person was entitled to be performed receive pursuant to the terms of this Agreement that were omitted from the Final Allocation Schedule; (vii) any payments paid with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the amounts that otherwise would have been payable pursuant to Section 1.7 upon the exchange of such Dissenting Shares; (viii) any claim or threatened claim by any actual or purported Company Stockholder relating to any alleged action or failure to act on its behalf by the Stockholder Representative; or (ix) any Third Party Expenses not paid as of immediately prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications and not otherwise accounted for purposes of determining the existence of a breach of any covenant or agreement that is so qualified; (c) any Indemnified Copyright Action (including any Damages arising prior to or after the Effective Time); (d) the amount of any Dissenting Share Payments; (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder PartyFinal Adjustment Amount.

Indemnification by the Company Stockholders. Subject to the terms of limitations set forth in this ARTICLE 9Article VI, each of the Company Stockholders, severally (based on the respective Pro Rata Shares of such Company Stockholders) jointly and not jointlyseverally, shall indemnify the Buyer in respect of, and hold it harmless Parent and its Affiliates (including the Company after the Effective Time) and their respective officers, directors, managers, members, partners, employees, agents and representatives, successors and assigns (the “Parent Indemnified Parties”) against, any and reimburse any Parent Indemnified Party for, all Damages that such Parent Indemnified Party suffers incurred or incurs as a result suffered by the Surviving Corporation or the Buyer resulting from or arising directly out of: (a) any breach, as of the failure date of this Agreement or as of the Closing Date, of any representation or warranty of the Company contained in ARTICLE 3 of this Agreement to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correctAgreement; (b) the breach by the Company of any of its covenants or agreements contained in this Agreement failure to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of perform any covenant or agreement that is so qualifiedof the Company contained in this Agreement; (c) any Indemnified Copyright Action (including failure of any Damages arising prior Company Stockholder to or after have good, valid and marketable title to the Effective Time);issued and outstanding Company Shares issued in the name of such Company Stockholder, free and clear of all Security Interests; or (d) the amount of any Dissenting Share Payments; (e) the amount of (i) all any Taxes of the Company Transaction Expenses in excess of $250,000 that is not paid prior with respect to any Pre-Closing Period (or for any Straddle Period, to the extent allocable to the portion of such period beginning before and ending on the Closing by the Company Date), and (ii) all payments under any Taxes of a Person (other than the 2006 Retention Cash Bonus Program; and (fCompany) solely in for which the case of Company Stockholders who are Stockholder Parties, the failure of has any representation of such Stockholder Party to be true and correct as of the Effective Date and liability as of the Closing Date under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), as if made on the Closing Datea transferee or successor, by contract, or otherwise, except (i) to the extent that such Taxes are reflected in the reserve for Tax liability (rather than any such representation or warranty relates reserve for deferred Taxes established to a specific date, reflect timing differences between book and Tax income) shown on the face of the Company’s Financial Statements (rather than in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”notes thereto), Company Material Adverse Effect whether as accrued Taxes or similar qualifier contained therein but other accrued expenses, and taken into account as liabilities in the calculation of Closing Working Capital and (ii) to the extent of interest, fines, penalties, assessments or additions to Taxes directly attributable to Buyer’s failure to comply with full effect being given any Tax-related covenants in this Agreement. The Buyer shall take and shall cause its Affiliates to take all such qualifications for purposes reasonable steps to mitigate any Damages upon becoming aware of determining whether any representation event which would reasonably be expected to, or warranty that is so qualified is true and correct; provideddoes, howevergive rise thereto, that for including incurring costs only to the avoidance of doubt, with respect minimum extent necessary to a remedy the breach by a Stockholder Party giving which gives rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Partythe Damages.

Indemnification by the Company Stockholders. Subject From and after the Effective Time, subject to the terms other provisions of this ARTICLE 9Article VI, each of the Company Stockholders, jointly and not severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointlyexcept as provided herein), shall agree to defend, indemnify and hold harmless Parent and its Affiliates (including the Company after the Effective Time) and their respective officers, directors, managers, members, partners, employees, agents and representatives, successors and assigns (the “Parent Indemnified Parties”) against, from and against and will pay or reimburse the Indemnified Parties for any Parent Indemnified Party forand all Losses arising from or in connection with, all Damages that such Parent Indemnified Party suffers whether directly or incurs as a result ofindirectly: (a) the failure breach of any representation or warranty made by the Company (i) in this Agreement, (ii) the Company Disclosure Letter, (iii) the Schedules or (iv) any other certificate delivered by or on behalf of the Company pursuant to this Agreement, provided, however that solely for the purposes of determining the amount of Losses that an Indemnified Party has suffered (and not for determining whether a breach has occurred), such representations and warranties of the Company shall be deemed to have been made without any Materiality Qualifications, and all references to any such Materiality Qualifications shall be deemed to be deleted and shall be disregarded for purposes of determining the amount of any such Losses; (b) any breach or failure of the Company to perform any covenant, agreement or obligation of the Company contained in ARTICLE 3 of this Agreement that is required to be true and correct as of the Effective Date and as of performed on or prior to the Closing Date as if made on the Closing Date, except to the extent that or any such representation breach or warranty relates to a specific date, in which case the failure of such representation the Stockholder Representative to perform any covenant, agreement or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the breach by the Company of any of its covenants or agreements obligation contained in this Agreement that is required to be performed prior to by the Stockholder Representative after the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualifiedDate; (c) any Indemnified Copyright Action claims by any current or former holder of securities of the Company seeking to assert, or based upon, the right to own or receive, or an obligation of the Company to issue such Person, securities of the Company (including any Damages arising prior other than the right to receive consideration pursuant to this Agreement or after appraisal rights under the Effective Timeapplicable provisions of the DGCL);; and (d) any fraud committed by the amount Company in connection with this Agreement, the Company Disclosure Letter, the Schedules or any other certificate delivered by or on behalf of any Dissenting Share Payments; (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid on or prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party pursuant to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder PartyAgreement.

Indemnification by the Company Stockholders. Subject to the terms of this ARTICLE 9, each of the Each Company Stockholders, Stockholder shall severally (based on the respective each such holder’s Pro Rata Shares of such Company Stockholders) Share), and not jointly, shall indemnify and hold harmless Parent and its Affiliates (including the Company after the Effective Time) and their respective officers, directors, managersagents, membersRepresentatives, partners, stockholders and employees, agents and representativeseach Person, successors and assigns if any, who controls or may control Parent within the meaning of the Securities Act or the Exchange Act (the each hereinafter referred to individually as an “Parent Indemnified PartiesPerson” and collectively as “Parent Indemnified Persons”) againstfrom and against any and all losses, reductions in value, costs, damages, Liabilities and reimburse any Parent Indemnified Party forexpenses, all Damages that such Parent Indemnified Party suffers including reasonable attorneys’ fees, other professionals’ and experts’ fees, costs of investigation and court costs (hereinafter collectively referred to as “Damages”), directly or incurs as a result indirectly arising out of, resulting from or in connection with: (ai) the any failure of any representation or warranty of made by the Company contained in ARTICLE 3 of this Agreement or the Company Disclosure Schedule, to be true and correct as of the Effective Date date of this Agreement and as of the Closing Date (as if made on the Closing Date, except to the extent that any though such representation or warranty relates to were made as of the Closing Date rather than the date of this Agreement, except in the case of any individual representation and warranty which by its terms speaks only as of a specific date, in which case the failure of such representation date or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualified; (c) any Indemnified Copyright Action (including any Damages arising prior to or after the Effective Timedates); (dii) the amount any failure of any Dissenting Share Payments; (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior to the Closing certification, representation or warranty made by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party pursuant to Section 7.2 to be true and correct as of the Effective Date and as date such certificate is delivered to Parent; (iii) any breach of or default in connection with any of the Closing Date as if covenants or agreements made on by the Closing Date, except Company in this Agreement; (iv) any Company Merger Expenses not otherwise deducted from Total Consideration; (v) any inaccuracy in the Stockholder Spreadsheet; (vi) any payments paid with respect to Dissenting Shares to the extent that any such representation or warranty relates to a specific datepayments, in which case the aggregate, exceed the value of the amounts that otherwise would have been payable pursuant to Section 2.2(a)(iii) upon the exchange of Dissenting Shares; (vii) any Action disclosed in the Company Disclosure Schedule; or (viii) the Patent Claim. In determining the amount of any Damages in respect of the failure of such any representation or warranty to be true and correct as of such datecorrect, in each case with Damages being determined without regard to any materiality standard or qualification (including the word “material”), Company a Material Adverse Effect or similar qualifier qualification) contained therein but with full effect being given to all in such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Partydisregarded.

Indemnification by the Company Stockholders. Subject to the terms limitations of this ARTICLE 9indemnity set forth in Section 7.7 below, each of the Company Stockholders, severally Stockholders shall indemnify the Parent (based on a pro-rata basis among the respective Pro Rata Shares of Company Stockholders in proportion to the Merger Consideration received by each such Company StockholdersStockholder) and not jointlyin respect of, shall indemnify and hold it harmless Parent and its Affiliates (including the Company after the Effective Time) and their respective officers, directors, managers, members, partners, employees, agents and representatives, successors and assigns (the “Parent Indemnified Parties”) against, any and reimburse any Parent Indemnified Party for, all Damages that such incurred or suffered by the Surviving Corporation or the Parent Indemnified Party suffers or incurs as a result ofany Affiliate thereof, whether or not involving any third party, resulting from, relating to or constituting: (a) the failure any breach or alleged breach of any representation or warranty of the Company or the Company Stockholders contained in ARTICLE 3 this Agreement (other than any breach or alleged breach of Section 2.9 of this Agreement which shall be resolved pursuant to be true Article VIII of this Agreement) or any other agreement or instrument furnished by the Company or the Company Stockholders to the Parent pursuant to this Agreement), as though such representations and correct as of the Effective Date warranties were restated and made at and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the breach by any failure to perform any covenant or agreement of the Company of or any of its covenants or agreements Company Stockholder contained in this Agreement to be performed prior or any agreement or instrument furnished by the Company or any Company Stockholder to the Closing in each case with Damages being determined without regard Parent pursuant to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualifiedthis Agreement; (c) any Indemnified Copyright Action failure of a Company Stockholder to have good, valid and marketable title to the issued and outstanding Company Shares, registered in such Company Stockholder’s name, free and clear of all Security Interests (including any Damages arising prior it being understood that the indemnification obligation in this Section 7.1(c) shall apply only to or after the Effective TimeCompany Stockholder with respect to whom the failure has occurred);; or (d) any claim by a Company Stockholder or former stockholder of the amount of Company, or any Dissenting Share Payments; (e) the amount of other Person, seeking to assert, or based upon: (i) all Company Transaction Expenses in excess ownership or rights to ownership of $250,000 that is not paid prior to the Closing by any shares of stock of the Company and which differ from those set forth in the Disclosure Schedule; (ii) all payments any rights of a stockholder (other than the right to receive the Aggregate Merger Consideration pursuant to this Agreement), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the 2006 Retention Cash Bonus Program; and (f) solely in the case Articles of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as Incorporation or by-laws of the Effective Date and as of Company; or (iv) any claim that his, her or its shares were wrongfully repurchased by the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Party.Company. AGREEMENT AND PLAN OF MERGER

Indemnification by the Company Stockholders. Subject to the other terms and conditions of this ARTICLE 9Article VIII, each of if the Closing occurs, the Company Stockholders, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointly, shall Stockholders hereby agree to indemnify and hold harmless Parent and its Parent’s Affiliates (including the Company after the Effective Time) and their respective officersRepresentatives (collectively, directors, managers, members, partners, employees, agents and representatives, successors and assigns (the “Parent Indemnified PartiesIndemnitees”) against, and agrees to hold each of the Parent Indemnitees harmless from and against, and agree to pay and reimburse any each of the Parent Indemnified Party Indemnitees for, any and all Damages that such Losses incurred or sustained by, or imposed upon, the Parent Indemnified Party suffers Indemnitees based upon, arising out of, with respect to or incurs as a result by reason of: (a) the failure any inaccuracy in or breach of any of the representations or warranties of the Company or the Company Stockholders contained in this Agreement, any Transaction Document or in any certificate or instrument delivered by or on behalf of the Company or the Company Stockholders pursuant to this Agreement or pursuant to any Transaction Document, as of the date such representation or warranty of the Company contained in ARTICLE 3 of this Agreement to be true and correct was made or as of the Effective Date if such representation or warranty was made on and as of the Closing Date as if made on the Closing Date, (except to the extent for representations and warranties that any such representation or warranty relates expressly relate to a specific specified date, the inaccuracy in or breach of which case the failure of will be determined with reference to such representation or warranty to be true and correct as of such specified date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company of any of its covenants or agreements contained in Stockholders pursuant to this Agreement to be performed prior to the Closing in each case with Damages being determined without regard or pursuant to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualifiedTransaction Document; (c) (i) all Taxes of the Company or relating to the business of the Company for all Pre-Closing Tax Periods; (ii) all Taxes of any Indemnified Copyright Action member of an affiliated, consolidated, combined or unitary group of which the Company (including or any Damages arising predecessor of the Company) is or was a member on or prior to the Closing Date by reason of a liability under Treasury Regulation Section 1.1502-6 or after any comparable provisions of foreign, state or local Law; and (iii) any and all Taxes of any person imposed on the Effective Time)Company arising under the principles of transferee or successor liability or by contract, relating to an event or transaction occurring before the Closing Date; (d) any violation by the amount Company Stockholders or the Company of any Dissenting Share Payments;applicable Laws or Governmental Orders or any other matters relating to or in connection with the conduct or operation of the Business prior to the Closing Date; or (e) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any such Person with any of the Company Stockholders or the Company (or any Person acting on their behalf) in connection with any Contemplated Transaction. The indemnification obligations of the Company Stockholders hereunder shall be several but not joint; provided that the Parent Indemnitees shall be permitted to recover one half of all Losses (subject to the limitations set forth in Section 8.06, below) from each of the Company Major Stockholders. To the extent either or both of the Company Major Stockholders indemnifies Parent Indemnitees in an amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior their Applicable Percentages of amounts required to the Closing be indemnified by the Company and (ii) all payments under Stockholders hereunder, the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, other than the failure Company Major Stockholders shall indemnify pay over to the Company Major Stockholders forthwith such Company Stockholder’s Applicable Percentage of any representation of such Stockholder Party the amount required to be true and correct as of indemnified by the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder PartyStockholders hereunder.

Indemnification by the Company Stockholders. Subject to The Company Stockholders shall, severally and not jointly (in accordance with their Pro Rata Shares) indemnify, defend and hold harmless Parent, Merger Subsidiary and the terms of this ARTICLE 9Surviving Corporation, each of the Company Stockholders, severally (based on the their respective Pro Rata Shares of such Company Stockholders) successors and not jointly, shall indemnify and hold harmless Parent and its Affiliates (including the Company after the Effective Time) assigns and their respective directors, officers, directorsagents, managersrepresentatives and employees (collectively, members, partners, employees, agents and representatives, successors and assigns (the “Parent Indemnified Parties”) againstfrom and against any and all, without duplication, liability, loss, damage, claim, charge, action, suit, proceeding, investigation, deficiency, Tax, interest, penalty, reasonable cost and reimburse reasonable expense (including, without limitation, reasonable attorneys’ fees) that (a) with respect to any Third-Party Claim, are actually paid by an Indemnified Party and (b) with respect to any claim that is not a Third-Party Claim, exclude any punitive damages or damages pursuant to statute that provide for multiple-based damages (a “Loss”) to the extent imposed on, incurred or suffered by or asserted against any Parent Indemnified Party forParty, all Damages that to the extent such Parent Indemnified Party suffers Loss results from or incurs as a result arises out of: (a) the failure : any breach or inaccuracy of any representation of the representations and warranties made by the Company in this Agreement or warranty any Ancillary Document, any failure of the Company contained in ARTICLE 3 to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement or any Ancillary Document; (iii) any claim made by any Company Stockholder, Optionholder or Warrantholder relating to such Person’s rights with respect to the Merger Consideration or any other consideration hereunder, or the calculations and determinations set forth on the Consideration Spreadsheet; (iv) any amounts paid to the holders of Dissenting Shares, including any interest required to be true and correct as paid thereon, that are in excess of the Effective Date and what such holders would have received hereunder had such holders not been holders of Dissenting Shares; (v) Net Debt in excess of $8,000,000; or (vi) any Company Transaction Expenses outstanding as of the Closing Date as if made on the Closing Date, except to the extent that any such representation not paid or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the breach satisfied by the Company of any of its covenants or agreements contained in this Agreement to be performed a Subsidiary at or prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualified; (c) any Indemnified Copyright Action (including any Damages arising prior to or after the Effective Time); (d) the amount of any Dissenting Share Payments; (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correctClosing; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined Parent Indemnified Parties shall have the right to be subject to indemnified, held harmless from, defended or reimbursed under Section 11.1(a)(i) in respect of the representations and warranties made by the Company only if such indemnification obligation shall be payable in full solely by right is asserted (whether or not such Stockholder Party.Losses have actually been incurred) on or before the respective dates set forth below:

Indemnification by the Company Stockholders. Subject to the terms limitations set forth in this Article VI, the Company Stockholders (by virtue of this ARTICLE 9, each the approval of the Merger by the Company Stockholders, ) severally (based on the in accordance with their respective Pro Rata Shares of such Company Stockholders) and not jointlyShare (as set forth in the Payment Spreadsheet), shall defend, indemnify and hold harmless Parent and its Affiliates (including the Company Companies after the Effective Time) Closing), and their respective officersshareholders, directorspartners, members, managers, membersofficers, partners, employees, agents directors and representatives, successors and assigns employees (the each a “Parent Indemnified PartiesParty”) againstfrom and against any and all Losses, and reimburse any Parent Indemnified Party for, all Damages that such Parent Indemnified Party suffers arising out of or incurs as a result ofresulting from: (a) the failure any inaccuracy in or breach of any representation or warranty of the representations or warranties made by the Company contained in ARTICLE 3 of this Agreement to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that or any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correctAncillary Agreement; (b) the any breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach non-fulfillment of any covenant or agreement that is so qualifiedto be performed by the Company, any Company Stockholder, the Stockholder Representative or any of their respective Affiliates pursuant to this Agreement or any Ancillary Agreement; (ci) all Taxes (or the non-payment thereof) not disclosed on the Closing Balance Sheet of the Companies with respect to any Pre-Closing Tax Period and, (ii) with respect to Straddle Period, all Taxes (or the non-payment thereof) not disclosed on the Closing Balance Sheet of the Companies with respect to the portion of such taxable 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 unitary group of which the Companies (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 §1.1502-6 or any analogous or similar state, local, or non-U.S. law or regulation, and (iv) any Indemnified Copyright Action (including and all Taxes not disclosed on the Closing Balance Sheet of any Damages Person imposed on any of the Companies or any of the Washington Entities arising prior under the principles of transferee or successor liability or by contract or pursuant to any law, rule, or after regulation, which Taxes relate to an event or transaction occurring before the Effective Time)Closing; (d) the amount any failure of any Dissenting Share PaymentsCompany 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 amount Payment Spreadsheet, as in effect from time to time; (f) the matters set forth on Section 6.02(f) of the Disclosure Schedule; (ig) all any Action by any Company Transaction Expenses in excess of $250,000 that is not paid prior Stockholder relating to such Person’s rights with respect to the Closing by Merger Consideration, or the Company calculations and (ii) all payments under determinations set forth on the 2006 Retention Cash Bonus ProgramPayment Spreadsheet; and (fh) solely any Action by any Company Stockholder who has properly exercised appraisal rights related to their Company Capital Stock in accordance with Section 262 of the case DGCL resulting in Losses that are in excess of the value of such Company’s Stockholder’s Pro Rata Share of the Merger Consideration that such Company Stockholder would have received hereunder had such holders not been holders of Dissenting Shares. Notwithstanding anything to the contrary provided for herein, the Company Stockholders who are Stockholder Parties, shall be obligated to pay any of Parent’s reasonable attorney’s fees and the failure cost of enforcing any right to indemnification hereunder regardless of the amount of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach recovery by a Company Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f6.02(h), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Party.

Indemnification by the Company Stockholders. Subject to the terms of this ARTICLE 9, each (a) As an integral term of the Company StockholdersMerger, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointly, shall indemnify and hold harmless Parent and its Affiliates (including the Company after the Effective Time) , Parent and their respective its affiliates (including, after the Effective Time, the Surviving Corporation), officers, directors, managers, members, partners, employees, agents and representativesagents, successors and assigns (collectively, the “Parent Indemnified Parties”) againstshall be, subject to the limitations contained in this Article IX, indemnified and reimburse held harmless by the Company Stockholders, jointly and severally, for any and all liabilities, losses, damages of any kind, decline in value, claims, costs, expenses, fines, fees, royalties, deficiencies, interest, awards, reduction in net operating losses, 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, excluding claims for exemplary, special, punitive or enhanced damages (other than in connection with Third Party Claims to the extent Parent Indemnified Party foris obligated to a Third Party for such damages, all Damages that such Parent Indemnified Party suffers or incurs whether as a result ofof settlement, judgment or otherwise) suffered, incurred, accrued (in accordance with U.S. GAAP) or paid by them (including, without limitation, in connection with any action brought or otherwise initiated by any of them) (collectively, “Losses”), without adjustment for any insurance recovery (excluding any insurance recovery under any directors and officers insurance purchased by the Company on or prior to the Closing Date, including the Tail D&O Insurance) or tax deduction relating thereto, arising out of or resulting from: (ai) the failure any inaccuracy or breach of any representation or warranty of the Company contained in ARTICLE 3 (disregarding for purposes of this Agreement to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that Section 9.02(a)(i) any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), ,” “in all material respects,” “Company Material Adverse Effect Effect” or similar qualifier qualification contained therein but or with full effect being given to all such qualifications respect thereto both for purposes of determining whether any a representation or warranty that is so qualified is true and correctcorrect and for purposes of calculating Losses); (bii) the breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement made by the Company or any Company Stockholder in the Acquisition Documents; (iii) in the event that any Company Stockholder properly exercises appraisal rights under applicable Law, the amount, if any, by which the fair market value (determined in accordance with applicable Law) of the Dissenting Shares exceeds the amount such Company Stockholder was otherwise entitled to receive pursuant to Section 2.01 of this Agreement (including the allocable amount of such Company Stockholder’s Escrow Cash); (iv) any cost, loss or other expense (excluding any lost or disallowed Tax deduction) as a result of the application of Section 280G of the Code to any of the transactions contemplated by this Agreement plus any necessary gross up amount (the “280G Losses”); (v) any Stockholder Expenses payable by the Surviving Corporation following the Closing to the extent not otherwise taken into account pursuant to Article II; (vi) any claims for indemnification or expense reimbursement by or in respect of any current or former officer, director or agent of the Company with respect to any matter; (vii) defending any third party claim alleging the occurrence of facts or circumstances that, if true, would entitle an Indemnified Party to indemnification hereunder; and (viii) any of the items set forth on 9.02(a). (b) As used herein, “Losses” are not limited to matters asserted by third parties, but include Losses incurred or sustained by a Parent Indemnified Party for which such Parent Indemnified Party is so qualified;entitled to indemnification pursuant to Section 9.02(a). (c) Notwithstanding anything to the contrary contained in this Agreement, except with respect to (A) claims for equitable remedies and (B) claims based on fraud or willful misrepresentation or intentional misconduct: (i) the maximum aggregate amount of indemnifiable Losses arising out of or resulting from the causes enumerated in Section 9.02(a) that may be recovered from the Company Stockholders shall not exceed $14,000,000; (ii) no indemnification payment by the Company Stockholders with respect to any Indemnified Copyright Action indemnifiable Losses otherwise payable under Section 9.02(a) and arising out of or resulting from the causes enumerated in Section 9.02(a)(i) (including any Damages arising prior other than Losses resulting from claims with respect to or the representations and warranties set forth in the first sentence of Section 3.01, Section 3.04(a), Section 3.04(c) and Section 6.13 and the Fundamental Representations) shall be payable until such time as all such indemnifiable Losses shall aggregate to more than $250,000, after which time the Effective Time);Company Stockholders shall be liable in full for all indemnifiable Losses (excluding the first $150,000) and subject to the limitations contained in this Article IX. (d) By virtue of their adoption of this Agreement and their approval of the amount transactions contemplated hereby, the Company Stockholders acknowledge and agree that, if the Surviving Corporation suffers, incurs. accrues or otherwise becomes subject to any Losses as a result of or in connection with any inaccuracy in or breach of any Dissenting Share Payments;representation, warranty, covenant or obligation for which a Parent Indemnified Party is entitled to indemnification pursuant to Section 9.02(a), then (without limiting any of the rights of the Surviving Corporation as an Indemnitee) Parent shall also be deemed, by virtue of its ownership of the stock of the Surviving Corporation, to have incurred Losses for which a Parent Indemnified Party is entitled to indemnification pursuant to Section 9.02(a) as a result of and in connection with such inaccuracy or breach. (e) With the amount exception of (i) all Company Transaction Expenses rights to indemnification for the benefit of directors and officers referenced in excess Section 6.10, no stockholder of $250,000 that is not paid prior to the Closing by the Company and (ii) all payments under shall have any right of contribution, right of indemnity or other right or remedy against the 2006 Retention Cash Bonus Program; and (f) solely Surviving Corporation in the case of Company Stockholders who are Stockholder Parties, the failure of connection with any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation or any other liability to which such stockholder may become subject under or in connection this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder PartyAgreement.

Indemnification by the Company Stockholders. Subject (a) From and after the Closing and subject to the terms limitations in this ARTICLE VIII, the Company Stockholders (which for purposes of this Article VIII shall include all Company Owners), severally and not jointly, shall indemnify, defend and hold harmless Parent and its Affiliates (which shall include the Surviving Corporation and its Subsidiaries after the Closing) and their respective partners, stockholders, directors, officers, attorneys, managers, representatives, stockholders, employees, successors and assigns (collectively, the “Parent Indemnitees”) from and against any and all loss, Liability, action or cause of action, judgments, settlement, Tax, interest or demand and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively, “Losses”), directly or indirectly, in connection with arising out of or resulting from (i) any inaccuracy in, or breach of, any of the representations and warranties in ARTICLE 9III hereof and in the certificate furnished pursuant hereto by the Company on the Closing Date, each (ii) any breach or nonfulfillment of any covenant or agreement made by the Company in or pursuant to this Agreement or the other Transaction Documents to which the Company is or will become a party, (iii) any Claim of any nature by any Company Stockholder or holder of Company Options or Company Warrants arising out of or in connection with this Agreement, the Merger or the amendment or termination of the Option Plan or the amendment of Company Warrants (other than the extension of Warrant #4), (iv) any inaccuracy in, or breach of, any of the representations and warranties set forth in a Stockholder Letter delivered to Parent by a Company Owner (the liability for which, notwithstanding any other provision contained in this Agreement, shall rest solely with the Company Stockholder signing such Stockholder Letter), (v) any amount payable in respect of any Dissenting Share (on a per share basis) in excess of the Merger Consideration (on a per share basis) and reasonable cost and expenses defending any Claim involving Dissenting Shares, (vi) the Disclosed IP Matters, or (vii) the Wage and Hour Matters. (b) From and after the Closing, the Company Stockholders, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointly, shall indemnify and hold harmless Parent and its Affiliates Parent Indemnitees against all Taxes (including whether assessed or unassessed) but only to the extent such Taxes were not accrued as Liabilities in the Final Net Working Capital that (A) are imposed on the Company after the Effective Timeor any Subsidiary under applicable Legal Requirements with respect to a Pre-Closing Period, (B) and their respective officersarise under any provision under applicable Legal Requirements imposing joint or several liability upon members of a consolidated, directorscombined, managersaffiliated, members, partners, employees, agents and representatives, successors and assigns (the “Parent Indemnified Parties”) against, and reimburse any Parent Indemnified Party for, all Damages that such Parent Indemnified Party suffers unitary or incurs as a result of: (a) the failure of any representation or warranty other Tax group by virtue of the Company contained in ARTICLE 3 or any Subsidiary being a member of this Agreement a consolidated, combined, affiliated, unitary or other Tax group on or prior to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except (C) arise under principles of transferee or successor liability or by Contract or otherwise, which Taxes relate to the extent that any such representation an event or warranty relates to a specific date, in which case the failure of such representation transaction occurring on or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to Date and involving the Company or any materiality Subsidiary or (including the word “material”)D) arise under any Tax allocation, Company Material Adverse Effect sharing, indemnity, or similar qualifier contained therein but with full effect being given Contract entered into by the Company or any Subsidiary on or prior to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualified;Closing Date. (c) any Indemnified Copyright Action (including any Damages arising prior to or after the Effective Time); (d) the amount of any Dissenting Share Payments; (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, Except with respect to a breach Claims under Section 8.1(a)(iv), Parent shall be entitled to deal exclusively with the Stockholders’ Representative in connection with any Claim for indemnification under this ARTICLE VIII. Any Claim for indemnification made directly by a Stockholder Party giving rise Company Indemnitee to an indemnification obligation under this Section 9.2(f), all Damages determined Parent shall be deemed to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Partyinvalid for all purposes of this ARTICLE VIII.

Indemnification by the Company Stockholders. Subject to (a) After the terms of this ARTICLE 9------------------------------------------- Effective Time, each of the Company Stockholders, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointly, shall indemnify and hold harmless Parent and its Affiliates affiliates (including the Company including, after the Effective Time) and their respective , the Surviving Corporation), officers, directors, managers, members, partners, employees, agents and representativesagents, successors and assigns (collectively, the “"Parent Indemnified Parties”") againstshall be indemnified and held harmless by the Company Stockholders, jointly and reimburse severally, for any Parent Indemnified Party forand all liabilities, all Damages that such Parent Indemnified Party suffers losses, damages of any kind, claims, costs, expenses, fines, fees, deficiencies, interest, awards, judgments, amounts paid in settlement and penalties (including, without limitation, attorneys', consultants' and experts' customary fees and expenses and other costs of defending, investigating or incurs as a result ofsettling claims) suffered, incurred, accrued (in accordance with U.S. GAAP) or paid by them (including, without limitation, in connection with any action brought or otherwise initiated by any of them) (collectively, "Losses"), without adjustment for any tax deduction relating thereto, arising out of or resulting from: (ai) the failure any inaccuracy or breach of any representation or warranty of the Company contained in ARTICLE 3 of this Agreement to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence dollar amount of a Losses only, without giving effect to any qualification as to materiality (or similar qualifications) contained therein) made by the Company or any Company Stockholder in the Acquisition Documents; (ii) the breach of any covenant or agreement that is so qualifiedmade by the Company or any Company Stockholder in the Acquisition Documents; (ciii) in the event that any Indemnified Copyright Action Company Stockholder properly exercises appraisal rights under applicable Law, the amount, if any, by which the fair market value (determined in accordance with applicable Law) of the Dissenting Shares exceeds the amount such Company Stockholder was otherwise entitled to receive pursuant to Section 2.01 of this Agreement (including any Damages arising prior amount that would have been held in the Escrow Fund with respect to or after such Company Stockholder), and all costs, fees and expenses incurred by Parent in connection with any exercise of appraisal rights (irrespective of the Effective Timeoutcome of any such exercise); (div) any Stockholder Expenses other than those required to be paid by Parent at Closing pursuant to Section 6.08; (v) the events described in Item #1 of Section 3.10 of the Company Disclosure Schedule; or (vi) the events described in Item #2 of Section 3.10 of the Company Disclosure Schedule. The indemnification obligations of the Company Stockholders set forth in Sections 9.02(a)(v) and 9.02(a)(vi) are referred to herein collectively as the "Specific Litigation Indemnification Obligations." (b) As used herein, "Losses" are not limited to matters asserted by third parties, but include Losses incurred or sustained by the Parent Indemnified Parties in the absence of claims by third parties. The amount of any Losses required to be paid by the Company Stockholders shall, in respect of any Loss, (i) be reduced by any recoveries actually received by the Parent Indemnified Party under insurance policies in respect of such Loss, net of any costs associated with collecting such amounts, and net of any deductible incurred in obtaining such amounts, and (ii) be increased by the present value of the amount of any Dissenting Share Payments; (e) the amount of annual insurance premium increases caused by any insurance recovery referenced in clause (i) all Company Transaction Expenses in excess of $250,000 that above (with such insurance premium increase to be determined by information provided by the insurance company; or if such information is not paid prior to the Closing adequately provided, as reasonably determined by the Company Stockholders' Representative and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely Parent Indemnified Party in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”good faith), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Party.

Indemnification by the Company Stockholders. Subject to the other terms and conditions of this ARTICLE 9Article IX, from and after the Closing, each of the Company StockholdersStockholder, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointly, shall indemnify and hold harmless defend each of Parent and its Affiliates (including the Company after the Effective TimeCompany) and their respective officersRepresentatives (collectively, directors, managers, members, partners, employees, agents and representatives, successors and assigns (the “Parent Indemnified PartiesIndemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse any Parent Indemnified Party each of them for, any and all Damages that such Losses incurred or sustained by, or imposed upon, the Parent Indemnified Party suffers Indemnitees based upon or incurs as a result arising out of or by reason of: (a) the failure any inaccuracy in or breach of any representation or warranty Company Fundamental Representation, as of the Company contained in ARTICLE 3 date of this Agreement to be true and correct or as of the Effective Closing Date as though made on and as of the Closing Date as if made on the Closing Date, (except to the extent that any such representation or warranty relates they refer to a specific another date, the inaccuracy in or breach of which case the failure of will be determined with reference to such representation or warranty to be true and correct as of such other date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the any inaccuracy in or breach by the Company of any of its covenants the representations or agreements contained warranties set forth in Article III (other than any Company Fundamental Representation), as of the date of this Agreement to be performed prior or as of the Closing Date as though made on and as of the Closing Date (except to the Closing extent they refer to another date, the inaccuracy in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualifiedwhich will be determined with reference to such other date); (c) any Indemnified Copyright Action (including inaccuracy in or breach of any Damages arising prior of the representations or warranties or any breach or non-fulfillment of any covenant, agreement or obligation to be performed by a Company Stockholder set forth in the Support Agreement or after the Effective Time)any Stockholder Consent or SAFE Holder Joinder and Release; (d) the amount any breach or non-fulfillment of any Dissenting Share Paymentscovenant, agreement or obligation to be performed by the Company prior to the Closing pursuant to this Agreement; (e) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Stockholders’ Representative at or following the Closing pursuant to this Agreement; (f) any Indemnified Taxes; (g) any inaccuracy in the amount of Closing Company Indebtedness, Closing Company Cash, or Company Transaction Expenses, in each case, as reflected in the Closing Statement; (h) any claims made by Company Stockholders in their capacities as such in respect of the allocation of the Aggregate Merger Consideration, or for any events, facts or circumstances occurring at or prior to the Closing; (i) all the defense by Parent or, following the Closing, Parent or the Company Transaction Expenses of an action for appraisal rights under the DGCL made by any holder of Dissenting Shares; (j) any actual or threatened Action brought by or on behalf of any Company Service Provider or Governmental Authority alleging breach of Contract or violation of any applicable Law pertaining to wages and hours, worker classification, workers’ compensation, work authorization or immigration, in each case, in connection with any period prior to the Closing; or (k) any Liabilities of the Company (other than Indebtedness) incurred or accrued in the ordinary course of business in an aggregate amount in excess of $250,000 20,000 that is not paid prior would be required by GAAP to the Closing by be reflected on a balance sheet of the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date if such balance sheet were to be prepared as if made on of the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect there shall be no indemnity pursuant to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined 9.02(k) in respect of trade payables or similar obligations owing to be subject Jupiter in connection with seeking to such indemnification obligation shall be payable in full solely by such Stockholder Party.complete or completing the items set forth on Schedule IV-B.

Indemnification by the Company Stockholders. Subject to the terms of this ARTICLE 9, each of the The Company Stockholders, severally (based on the but not jointly according to their respective Pro Rata Shares of such Company Stockholders) and not jointlyConsideration Percentages, shall save, defend, indemnify and hold harmless Parent and its Affiliates (including the Company after Acquiror, Sub, the Effective Time) Surviving Corporation and their Affiliates, and the respective officers, directors, managers, members, partners, employees, agents and representativesRepresentatives, successors and assigns of each of the foregoing (the “Parent Acquiror Indemnified Parties”) from and against, and shall compensate and reimburse any Parent Indemnified Party each of foregoing for, any of the following, including any and all Damages that such Parent Indemnified Party suffers losses, damages, liabilities, deficiencies, claims, calculable diminution of value, interest, awards, judgments, Taxes, penalties, costs and expenses (including reasonable attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or incurs defending the foregoing) (hereinafter collectively, “Losses”), asserted against, incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating to the following: (a) the failure any breach of any representation or warranty of made by the Company contained in ARTICLE 3 of this Agreement to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, or any Ancillary Agreement (except that with respect to the extent that A&R Stockholder Agreement, each Company Stockholder’s liability shall be limited to its own (alone or with any other Company Stockholders) breaches of any such representation representations or warranty relates to a specific datewarranties in the A&R Stockholder Agreement) or any schedule, certificate or other document delivered pursuant hereto or thereto or in which case connection with the failure of such representation transactions contemplated hereby or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality thereby (including for the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes sole purpose of determining Losses (and not for determining whether any breach of any representation or warranty that is so qualified is true and correcthas occurred)), without giving effect to any limitations or qualifications thereto, including materiality, Material Adverse Effect, knowledge or subsequent supplements or updates to the Disclosure Schedule); (b) the breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualifiedby Company contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby (including as a result of the action or failure to act of the Company or any of its Subsidiaries); (c) any Indemnified Copyright Action (including Transaction Expenses charged to the Acquiror, Sub, the Surviving Corporation, the Company or any Damages arising prior to or after of their Affiliates that shall not have been reflected in the Effective Time)Final Closing Statement; (d) the amount of any Dissenting Share PaymentsPre-Closing Taxes (other than Taxes taken into account as a liability in determining Closing Net Working Capital); (e) any amounts paid to the amount holders of (i) all Company Transaction Expenses Dissenting Shares, including any interest required to be paid thereon, that are in excess of $250,000 that is what such holders would have received hereunder had such holders not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Programbeen holders of Dissenting Shares; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as its Subsidiaries doing business or otherwise operating outside of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation United States (either directly or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”indirectly through third parties), Company Material Adverse Effect or similar qualifier contained therein but including their respective operations in Guatemala and compliance with full effect being given to all such qualifications for purposes Law, employment practices and classification of determining whether employees, consultants and independent contractors in connection therewith, and any representation or warranty that is so qualified is true and correct; provided, however, that for allegations regarding the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Partysame.

Indemnification by the Company Stockholders. Subject to (a) After the terms of this ARTICLE 9Effective Time, each of the Company Stockholders, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointly, shall indemnify and hold harmless Parent and its Affiliates affiliates (including the Company including, after the Effective Time) and their respective , the Surviving Corporation), officers, directors, managers, members, partners, employees, agents and representativesagents, successors and assigns (collectively, the “Parent Indemnified Parties”) againstshall be indemnified and held harmless by the Company Stockholders, jointly and reimburse severally, for any Parent Indemnified Party forand all liabilities, all Damages that such Parent Indemnified Party suffers losses, damages, claims, costs, expenses, fines, fees, deficiencies, interest, awards, judgments, amounts paid in settlement and penalties (including, without limitation, attorneys’, consultants’ and experts’ customary fees and expenses and other costs of defending, investigating or incurs as a result ofsettling claims) suffered, incurred, accrued (in accordance with U.S. GAAP) or paid by them (including, without limitation, in connection with any action brought or otherwise initiated by any of them) (collectively, “Losses”), arising out of or resulting from: (ai) the failure any inaccuracy or breach of any representation or warranty of the Company contained in ARTICLE 3 of this Agreement to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether Losses only, without giving effect to any representation qualification as to materiality (or warranty that is so qualified is true and correctsimilar qualifications) contained therein) made by the Company or any Company Stockholder in the Acquisition Documents; (bii) the breach by the Company of any of its covenants or agreements contained in this Agreement to be performed prior to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement that is so qualifiedmade by the Company or any Company Stockholder in the Acquisition Documents; (ciii) in the event that any Company Stockholder properly exercises appraisal rights under applicable Law, the amount, if any, by which the fair market value (determined in accordance with applicable Law) of the Dissenting Shares exceeds the amount such Company Stockholder was otherwise entitled to receive pursuant to Section 2.01 of this Agreement, and all costs, fees and expenses incurred by Parent in connection with any exercise of appraisal rights (irrespective of the outcome of any such exercise); or (iv) any Indemnified Copyright Action Stockholder Expenses that consist of attorneys’ fees (including any Damages arising prior to “Attorneys’ Fees”) or after the Effective Time); accounting fees (d) the amount of any Dissenting Share Payments; (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “materialAccounting Fees”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that (A) Attorneys’ Fees shall be indemnifiable Losses pursuant to this Section 9.02 only to the extent that such Attorneys’ Fees exceed $200,000 and (B) Accounting Fees shall be indemnifiable Losses pursuant to this Section 9.02 only to the extent that such Accounting Fees exceed $150,000. (b) As used herein, “Losses” are not limited to matters asserted by third parties, but include Losses incurred or sustained by the Parent Indemnified Parties in the absence of claims by third parties. The amount of any Losses required to be paid by the Company Stockholders shall, in respect of any Loss, (i) be reduced by any recoveries actually received by the Parent Indemnified Party under insurance policies in respect of such Loss, net of any costs associated with collecting such amounts, and net of any deductible incurred in obtaining such amounts, and (ii) be increased by the present value of the amount of any annual insurance premium increases caused by any insurance recovery referenced in clause (i) above (with such insurance premium increase to be determined by information provided by the insurance company; or if such information is not adequately provided, as reasonably determined by the Stockholders’ Representative and the Parent Indemnified Party in good faith). (c) Notwithstanding anything to the contrary contained in this Agreement, except with respect to (A) claims for equitable remedies and (B) claims based on fraud or willful misconduct, the indemnification provided in this Article IX, which indemnification shall be limited to and satisfied exclusively by the Escrow Fund, shall be the sole and exclusive post-Closing recourse and remedy available to the Parent Indemnified Parties against the Company Stockholders for any Losses. In addition, notwithstanding anything to the contrary contained in this Agreement, the Company Stockholders shall have no liability for any Losses pursuant to this Article IX until the total of all Losses for which Parent Indemnified Parties are entitled to indemnification pursuant to Section 9.02 exceeds $25,000 in the aggregate, after which time the Company Stockholders shall be liable in full for all indemnifiable Losses (including the first $25,000); provided, however, that with respect to Losses arising from any breach of the representations and warranties set forth in Section 3.08 (“Section 3.08 Losses”), the Company Stockholders shall have no liability for any Section 3.08 Losses until the total of all Section 3.08 Losses for which Parent Indemnified Parties are entitled to indemnification pursuant to Section 9.02 exceeds $50,000 in the aggregate, and then only for that amount by which such Section 3.08 Losses exceed $50,000. (d) By virtue of their adoption of this Agreement and their approval of the transactions contemplated hereby, the Company Stockholders acknowledge and agree that, if the Surviving Corporation suffers, incurs or otherwise becomes subject to any Losses (any such Losses, “Surviving Corporation Losses”) as a result of or in connection with any inaccuracy in or breach of any representation, warranty, covenant or obligation, then (without limiting any of the rights of the Surviving Corporation as an Indemnitee) Parent shall also be deemed, by virtue of its ownership of the stock of the Surviving Corporation, to have incurred Losses as a result of and in connection with such inaccuracy or breach. For avoidance of doubt, the preceding sentence will entitle Parent to be indemnified for all or any portion of Surviving Corporation Losses, and the Surviving Corporation shall not be indemnified for that portion of Surviving Corporation Losses for which Parent is indemnified. (e) No stockholder of the Company shall have any right of contribution, right of indemnity or other right or remedy against the Surviving Corporation in connection with respect to a breach by a Stockholder Party giving rise to an any indemnification obligation or any other liability to which such stockholder may become subject under or in connection this Section 9.2(f)Agreement. (f) Notwithstanding anything herein to the contrary, all Damages determined the Company’s representations and warranties contained in Article III of this Agreement shall, for purposes of the Company Stockholders’ indemnification obligations, be deemed to be subject made as of the date of this Agreement and as of the Effective Time (except for any such representation or warranty that expressly speaks of an earlier date) without regard to such indemnification obligation shall be payable the exceptions set forth in full solely by such Stockholder Partythe certificates delivered in connection with Section 7.02(a).

Indemnification by the Company Stockholders. Subject (a) After the Effective Time and subject to the terms limitations set forth in Section 10.02(b), Parent shall have the right to recover the amount of this ARTICLE 9any assessments, each of the Company Stockholderslosses, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointlydamages, shall indemnify and hold harmless Parent and its Affiliates costs, expenses, liabilities, awards, fines, penalties, charges, fees (including reasonable attorneys’ fees), amounts paid in settlement and sanctions (collectively, “Damages”) incurred by Parent, Merger Sub, the Company after the Effective Time) Surviving Corporation and their respective shareholders, subsidiaries, officers, directorsdirector, managers, members, partners, employees, employees and agents and representatives, successors and assigns (the “Parent Indemnified Parties”) againstprior to the first anniversary of the Effective Time, by reason of or resulting from, directly or indirectly, (i) any breach or inaccuracy in any of the representations and reimburse any Parent Indemnified Party for, all Damages that such Parent Indemnified Party suffers or incurs as a result of: (a) the failure of any representation or warranty warranties of the Company contained in ARTICLE 3 Article III of this Agreement, in the Company Disclosure Letter or in any exhibits and schedules to this Agreement delivered or to be true delivered by or on behalf of the Company (collectively, the “Company Related Documents”), (ii) noncompliance with or failure to perform any covenants, agreements or undertakings by the Company contained in this Agreement, in the Company Disclosure Letter or in the other Company Related Documents, (iii) any Claims or threatened Claims asserted against a Parent Indemnified Party arising out of the Company’s actions or inactions with respect to the Company’s business prior to the Effective Time and correct as (iv) matters set forth in Schedule 10.02(a). (b) Parent Indemnified Parties will be entitled to recover Damages (i) only if Parent or Merger Sub delivers to the Stockholders’ Representatives written notice, setting forth in reasonable detail the identity, nature and estimated magnitude of Damages related to such claim or claims prior to the first anniversary of the Effective Date Time and as of (ii) only once Damages exceed $1,000,000 (the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date“Basket”), in which case the failure right to recover Damages shall apply to the full amount of such representation or warranty the Basket. Parent’s right to be true recover Damages for any breach of representations and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; (b) the breach warranties by the Company resulting from any fraudulent actions, omissions or misstatements made by the Company shall not be limited by the limitations set forth in this subsection (b). (c) With the exception of Damages resulting from the fraudulent actions, omissions or misstatements of the Company, (i) the total amount of the payments that can be made to the Parent Indemnified Parties under Section 10.02(a) shall be limited in the aggregate to the Escrow Funds in the Indemnification Escrow Account and shall be made exclusively from the Indemnification Escrow Account and (ii) no Parent Indemnified Party shall have any recourse against any current or former director, officer, employee or security holder of the Company in connection with any indemnification claim or any other claim of any nature. Notwithstanding anything to the contrary in the foregoing, in no event shall the liability of its covenants a Company Stockholder pursuant to this Section 10.02 exceed the aggregate cash amount to which such Company Stockholder is entitled pursuant to Sections 2.01(a)-(d), unless the Company Stockholder is found to have contributed to, or agreements contained to have had knowledge of, fraudulent actions, omissions or misstatements made by the Company. The parties hereto agree that nothing in this Article X or elsewhere in this Agreement shall limit the right to be performed prior specific performance or equitable relief with respect to the Closing in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining the existence of a breach of any covenant or agreement set forth in this Agreement, in the Company Disclosure Letter or in any other Company Related Documents and, further provided that is so qualified; (c) nothing in this Article X shall be deemed a waiver by any Indemnified Copyright Action (including party to this Agreement of any Damages arising prior to right or after the Effective Time);remedy which such party may have at law or in equity based on any claim or fraud or willful misconduct. (d) the The amount to which a Parent Indemnified Party may become entitled under this Article X shall be net of any Dissenting Share Payments; actual recovery (ewhether by way of payment, discount, credit, off-set, tax benefit, counterclaim or otherwise) the amount of (i) all Company Transaction Expenses in excess of $250,000 that is not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to received from a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality third party (including the word “material”), Company Material Adverse Effect any insurer or similar qualifier contained therein but taxing authority) less any current or prospective cost associated with full effect being given to all receiving such qualifications for purposes recovery in respect of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, with respect to a breach by a Stockholder Party giving rise to an indemnification obligation under this Section 9.2(f), all Damages determined to be subject to such indemnification obligation shall be payable in full solely by such Stockholder PartyClaim.

Indemnification by the Company Stockholders. Subject (a) Each Company Stockholder severally hereby agrees to indemnify, defend and hold Acquiror, the terms Surviving Corporation and their respective officers and directors, and each person, if any, who controls or may control Acquiror or the Surviving Corporation within the meaning of this ARTICLE 9, each the Securities Act (all such persons hereinafter are referred to individually as an "Acquiror -------- Indemnified Person" and collectively as "Acquiror Indemnified Persons," but in ------------------ ---------------------------- no event shall any stockholder of the Company Stockholdersbe such an Acquiror Indemnified Person) harmless against all Losses resulting from, severally (based on the respective Pro Rata Shares of such Company Stockholders) and not jointlyimposed upon or incurred by any Acquiror Indemnified Person, shall indemnify and hold harmless Parent and its Affiliates (including the Company after the Effective Time) and their respective officersdirectly or indirectly, directors, managers, members, partners, employees, agents and representatives, successors and assigns (the “Parent Indemnified Parties”) against, and reimburse any Parent Indemnified Party for, all Damages that such Parent Indemnified Party suffers or incurs as a result of: of (ai) the failure any inaccuracy or breach of any a representation or warranty of the Company given or made by the Company in this Agreement, in the certificate of merger or in the Exhibits or Schedules hereto or in any certificate or document delivered by or on behalf of the Company pursuant hereto, (ii) any failure by the Company to perform or comply with any covenant or agreement contained in ARTICLE 3 this Agreement, in the certificate of merger or in the Exhibits or Schedules hereto or in any certificate or document delivered by or on behalf of the Company pursuant hereto, (iii) the matters set forth in Schedule 3.17 (Company's Litigation) ------------- hereto, (iv) the matters set forth in Schedule 3.19 (Taxes and Assessments) ------------- hereto, (v) the matters set forth in Schedule 3.23(b) (Compliance of Plan Terms) ---------------- or (vi) the failure of the customer to make payment in full within one hundred twenty days of the date the goods and services were delivered by the Company prior to the Effective Time or by Acquiror and its Subsidiaries following the Effective Time pursuant to the contract identified in Schedule 3.6(b), item E and F, and any obligations entered into after the Effective Time with such customer which were contemplated in the business plan of the Company dated January 26, 1999 delivered to Acquiror prior to the date hereof (the -55- "Contract Risk"). Notwithstanding anything in this Agreement to the contrary, the Company Stockholders shall not be true responsible for indemnification with respect to (w) the first $100,000 of any Losses (other than for Identified Liabilities), (x) the first $60,000 of Losses incurred with respect to the matters set forth in Schedule 3.23(b), (y) the first $220,000 of any Losses ---------------- incurred with respect to the matter set forth in Schedule 3.19(a), item A and correct as ---------------- (z) any Loss resulting from a breach of the Effective Date and as of the Closing Date as if made on the Closing Date, except Section 3.8 hereof to the extent that any ----------- the Company Stockholders are responsible for such representation or warranty relates Loss pursuant to a specific date, in which case clause (vi) of this Section 10.2. Any payment for indemnification under this Section 10.2 ------------ ------------ shall be made from the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct;Escrow Stock. (b) Anything to the breach by the Company of any of its covenants or agreements contained contrary in this Agreement notwithstanding, (i) the maximum aggregate amount for which the Company Stockholders may be liable to the Acquiror Indemnified Persons or any other person pursuant to or in connection to this Agreement or the transactions contemplated hereby shall not exceed an amount equal to the Stockholder's Percentage multiplied by $5,000,000; (ii) the maximum amount for which any one Company Stockholder may be performed liable to the Acquiror Indemnified Persons or any other person pursuant to or in connection to this Agreement or the transactions contemplated hereby shall not, with respect to any Loss, exceed a percentage of such Loss determined by dividing the number of shares of Company Common Stock held by such Company Stockholder immediately prior to the Closing Effective Time by the Total Converted Company Stock; (iii) subsequent to the Effective Time, the indemnification rights provided in each case with Damages being determined without regard this Section 10.2 shall be the sole and ------------ exclusive remedy available under contract, tort or any other legal theory to any materiality (including Acquiror Indemnified Person or any other person with respect to any Loss incurred or sustained pursuant to or in connection with this Agreement or the word “material”), Company Material Adverse Effect transactions contemplated hereby; and the only source of indemnification or similar qualifier contained therein but payment for or with full effect being given respect to all any such qualifications for purposes of determining Loss shall be recourse to the existence of a breach of any covenant or agreement that is so qualified;Escrow Stock. (c) any Any payment to be made to an Acquiror Indemnified Copyright Action Person from Escrow Stock shall be made by delivering to the Acquiror Indemnified Persons such number of shares of the Escrow Stock as shall equal the amount of the Loss or Losses for which indemnification or payment is being made. Any payment to be made to an Acquiror Indemnified person by a Company Stockholder under Section ------- 10.2 may be made in cash or, in whole or in part, in Acquiror Shares, having a ---- value per share equal to the average daily price thereof on the NASDAQ for the five (including any Damages arising prior to or after 5) consecutive Trading Days preceding the Effective Time);date of such payment. (d) In the amount of any Dissenting Share Payments; (e) the amount of (i) all Company Transaction Expenses in excess of $250,000 event that is not paid prior to the Closing by the Company and (ii) all payments under the 2006 Retention Cash Bonus Program; and (f) solely in the case of Company Stockholders who are Stockholder Parties, the failure of any representation of such Stockholder Party to be true and correct as of the Effective Date and as of the Closing Date as if made on the Closing Date, except to the extent that any such representation or warranty relates to a specific date, in which case the failure of such representation or warranty to be true and correct as of such date, in each case with Damages being determined without regard to any materiality (including the word “material”), Company Material Adverse Effect or similar qualifier contained therein but with full effect being given to all such qualifications for purposes of determining whether any representation or warranty that is so qualified is true and correct; provided, however, that for the avoidance of doubt, an Acquiror Indemnified Person receives payment with respect to a breach by a Stockholder Party giving rise Loss pursuant to an indemnification obligation under this Section 9.2(f)10.2, all Damages determined and such Acquiror ------------ Indemnified Person subsequently recovers the amount of such Loss from a third party then such Acquiror Indemnified Person shall pay such recovery to be subject to such indemnification obligation shall be payable in full solely by such Stockholder Partythe Company Stockholders as soon as reasonably practicable.