Common use of Indemnification by the Stockholders Clause in Contracts

Indemnification by the Stockholders. (a) Subject to the limitations set forth in this Article VI, after the Effective Time the Stockholders shall, severally (in proportion to their respective Pro Rata Additional Indemnity Share (or, in the case of the Donee Stockholders, their respective Pro Rata Share)) and not jointly, indemnify and hold Parent and Surviving Corporation and their respective officers, directors, employees, agents and Affiliates (each, a “Parent Indemnified Party” and collectively, the “Parent Indemnified Parties”) harmless from and against, and shall reimburse the Parent Indemnified Parties for, any and all losses, damages, liabilities, Taxes, obligations, judgments, orders, settlement payments, awards, writs, injunctions, decrees, fines, penalties, reasonable costs and expenses (including reasonable legal and accounting fees and expenses) and whether or not involving a Third Party Claim (collectively, “Losses”), as incurred, arising out of: (i) any breach of any representation, warranty or certification made by or on behalf of the Company expressly set forth in this Agreement, in the Disclosure Memorandum or in any other Operative Document; (ii) any breach by any Group Company of any covenant or other obligation in this Agreement or in any other Operative Document; (iii) any and all Pre-Closing Taxes (or the nonpayment thereof), other than Pre-Closing Taxes reflected on the Post-Closing Statement and specifically taken into account in computing Net Working Capital as finally determined under Section 1.15; (iv) any Transaction Costs of the Company and any Debt, other than the Transaction Costs and Debt reflected on the Post-Closing Statement and specifically taken into account in determining the Merger Consideration as finally determined under Section 1.15; (v) any demand for appraisal rights, including any Dissenting Share Payments; (vi) any claims by any Stockholder relating to the matters contemplated by this Agreement or the other Operative Documents (including any claim alleging a breach of fiduciary duty or a misallocation of the Merger Consideration, but for the avoidance of doubt not including any claims by any Stockholder or the Stockholder Representative enforcing any Stockholder’s rights under this Agreement or any other Operative Agreement); (vii) any Fraud by any Group Company in the making of the representations and warranties set forth in Article II or in any certificate delivered pursuant to this Agreement; (viii) any claim or right asserted by any Stockholder or person who is or at any time was an officer or director of any Group Company, involving a right or entitlement to indemnification, reimbursement of expenses or any other similar relief or remedy with respect to any act or omission on the part of such person or any event or other circumstance that arose occurred or existed at or prior to the Effective Time; (ix) any amounts that any Person (in such Person’s capacity as a Stockholder) is entitled to receive in connection with the Merger in excess of the amount indicated on the Payment Schedules (together with any Post-Closing Payment Amounts that may become payable) due to any inaccuracies in the Payment Schedules; (x) any inaccuracies in the Payment Schedules; or (xi) any of the matters set forth on Schedule 6.2(a)(xi) (the “Special Indemnification Matters”). (b) Subject to the limitations set forth in this Article VI, after the Effective Time, each Stockholder shall, severally and not jointly, in accordance with its Pro Rata Additional Indemnity Share (or, with respect to the Donee Stockholders, Pro Rata Share), indemnify and hold the Parent Indemnified Parties harmless from and against, and shall reimburse the Parent Indemnified Parties for, any and all Losses, as incurred, arising out of: (i) any breach of any representation, warranty or certification made by such Person expressly set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable; (ii) any breach by such Person of any covenant or other obligation of such Person in such Person’s Letter of Transmittal or Support Agreement, as applicable, or any breach of the Stockholder Representative of any covenant in this Agreement; or (iii) any Fraud by such Person in the making of the representation and warranties (A) set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable, or (B) in which such Person participated, caused or had actual knowledge of.

Indemnification by the Stockholders. (a) Subject to the limitations terms and conditions set forth in this Article VISection 8.3, after Company (prior to the Effective Time Time) or the Stockholders shall(subsequent to the Effective Time), jointly and severally (in proportion with respect to their respective Pro Rata Additional Indemnity Share (or, in the case of the Donee Stockholders, their respective Pro Rata Share)) and not jointlyshall indemnify Parent, indemnify and hold Parent and the Surviving Corporation and their respective directors, officers, directors, employees, agents or advisors, or any of their respective successors and Affiliates (eachassigns, a “Parent Indemnified Party” and collectively, the “Parent Indemnified Parties”) harmless from and againstin respect of, and shall reimburse the Parent Indemnified Parties forhold each of them harmless against, any and all lossesdemands, claims, debts, actions, assessments, judgements, settlements, sanctions, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, known or unknown, due or to become due or otherwise), monetary damages, liabilities, Taxes, obligations, judgments, orders, settlement payments, awards, writs, injunctions, decrees, fines, taxes, fees, penalties, reasonable interest obligations, deficiencies, losses, costs and expenses (including including, without limitation, amounts paid in settlement, interest, court costs, costs of investigators, reasonable legal and accounting fees and expensesexpenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) and whether ("DAMAGES", PROVIDED, HOWEVER, that Damages shall not include any consequential, speculative or not involving punitive damages incurred by an Indemnified Person unless actually paid to a Third Party Claim (collectively, “Losses”third party as a result of a third party claim), as incurredincurred or suffered by them (i) resulting from, relating to, arising out of: (i) of or constituting any breach of any representation, representation or warranty or certification made failure to perform any covenant or agreement of Company or the Stockholders contained, or referred to, in the Transaction Agreements or in any certificate, agreement, letter or document delivered hereby or thereby, or in connection with any lawsuit or claim brought against Company or any of its Subsidiaries related to actions taken by Company or on behalf any of its Subsidiaries prior to the Closing (including any Damages suffered through and after the applicable survival period); or (ii) resulting from, relating to, arising out of or in connection with the dispute set forth in Section 2.19 of the Company expressly set forth in this AgreementDisclosure Schedule related to the 53 Exclusive License Agreement dated April 14, 1998 by and among Dr. Xxxx Xxxxxx, Dr. Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxxxxxx and RxEyes, Inc., including, without limitation, the payment of any penalties pursuant thereto or the termination thereof and the loss of any license(s) thereunder, in the Disclosure Memorandum or in any other Operative Document; (ii) any breach by any Group Company of any covenant or other obligation in this Agreement or in any other Operative Document; (iii) any and all Pre-Closing Taxes (or the nonpayment thereof), other than Pre-Closing Taxes reflected on the Post-Closing Statement and specifically taken into account in computing Net Working Capital as finally determined under Section 1.15; (iv) any Transaction Costs of the Company and any Debt, other than the Transaction Costs and Debt reflected on the Post-Closing Statement and specifically taken into account in determining the Merger Consideration as finally determined under Section 1.15; (v) any demand for appraisal rights, including any Dissenting Share Payments; (vi) any claims by any Stockholder relating to the matters contemplated by this Agreement or the other Operative Documents each case arising directly from such dispute (including any Damages suffered through and after the applicable survival period); PROVIDED, HOWEVER, that Parent makes a written claim alleging a breach of fiduciary duty or a misallocation of the Merger Consideration, but for the avoidance of doubt not including any claims by any Stockholder or the Stockholder Representative enforcing any Stockholder’s rights under this Agreement or any other Operative Agreement); indemnification against Company (vii) any Fraud by any Group Company in the making of the representations and warranties set forth in Article II or in any certificate delivered pursuant to this Agreement; (viii) any claim or right asserted by any Stockholder or person who is or at any time was an officer or director of any Group Company, involving a right or entitlement to indemnification, reimbursement of expenses or any other similar relief or remedy with respect to any act or omission on the part of such person or any event or other circumstance that arose occurred or existed at or prior to the Effective Time; ) or the Stockholder Representative (ix) any amounts that any Person (in such Person’s capacity as a Stockholder) is entitled to receive in connection with the Merger in excess of the amount indicated on the Payment Schedules (together with any Post-Closing Payment Amounts that may become payable) due to any inaccuracies defined in the Payment Schedules; (x) any inaccuracies in the Payment Schedules; or (xi) any of the matters set forth on Schedule 6.2(a)(xiEscrow Agreement) (the “Special Indemnification Matters”). (b) Subject subsequent to the limitations Effective Time) pursuant to this Section 8.4 and Section 9.2 within the survival period set forth in this Article VI, after the Effective Time, each Stockholder shall, severally and not jointly, in accordance with its Pro Rata Additional Indemnity Share (or, with respect to the Donee Stockholders, Pro Rata Share), indemnify and hold the Parent Indemnified Parties harmless from and against, and shall reimburse the Parent Indemnified Parties for, any and all Losses, as incurred, arising out of: (i) any breach of any representation, warranty or certification made by such Person expressly set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable; (ii) any breach by such Person of any covenant or other obligation of such Person in such Person’s Letter of Transmittal or Support Agreement, as applicable, or any breach of the Stockholder Representative of any covenant in this Agreement; or (iii) any Fraud by such Person in the making of the representation and warranties (A) set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable, or (B) in which such Person participated, caused or had actual knowledge ofSection 8.1.

Indemnification by the Stockholders. (a) Subject to Sections 7.6 and 7.7 and the other limitations set forth in this Article VI, after the Effective Time the Stockholders shall, severally (in proportion to their respective Pro Rata Additional Indemnity Share (or, in the case of the Donee Stockholders, their respective Pro Rata Share)) and not jointly, indemnify and hold Parent and Surviving Corporation and their respective officers, directors, employees, agents and Affiliates (each, a “Parent Indemnified Party” and collectively, the “Parent Indemnified Parties”) harmless from and against, and shall reimburse the Parent Indemnified Parties for, any and all losses, damages, liabilities, Taxes, obligations, judgments, orders, settlement payments, awards, writs, injunctions, decrees, fines, penalties, reasonable costs and expenses (including reasonable legal and accounting fees and expenses) and whether or not involving a Third Party Claim (collectively, “Losses”), as incurred, arising out of: (i) any breach of any representation, warranty or certification made by or on behalf of the Company expressly set forth in this Agreement, in the Disclosure Memorandum or in any other Operative Document; Parent (ii) any breach by any Group Company of any covenant or other obligation in this Agreement or in any other Operative Document; (iii) any and all Pre-Closing Taxes (or the nonpayment thereof), other than Pre-Closing Taxes reflected on the Post-Closing Statement and specifically taken into account in computing Net Working Capital as finally determined under Section 1.15; (iv) any Transaction Costs of the Company and any Debt, other than the Transaction Costs and Debt reflected on the Post-Closing Statement and specifically taken into account in determining the Merger Consideration as finally determined under Section 1.15; (v) any demand for appraisal rights, including any Dissenting Share Payments; (vi) any claims by any Stockholder relating to the matters contemplated by this Agreement or the other Operative Documents (including any claim alleging a breach of fiduciary duty or a misallocation of the Merger Consideration, but for the avoidance of doubt not including any claims by any Stockholder or the Stockholder Representative enforcing any Stockholder’s rights under this Agreement or any other Operative Agreement); (vii) any Fraud by any Group Company in the making of the representations and warranties set forth in Article II or in any certificate delivered pursuant to this Agreement; (viii) any claim or right asserted by any Stockholder or person who is or at any time was an officer or director of any Group Company, involving a right or entitlement to indemnification, reimbursement of expenses or any other similar relief or remedy with respect to any act or omission on the part of such person or any event or other circumstance that arose occurred or existed at or prior to the Effective Time; (ix) any amounts that any Person (in such Person’s capacity as a Stockholder) is entitled to receive in connection with the Merger in excess of the amount indicated on the Payment Schedules (together with any Post-Closing Payment Amounts that may become payable) due to any inaccuracies in the Payment Schedules; (x) any inaccuracies in the Payment Schedules; or (xi) any of the matters set forth on Schedule 6.2(a)(xi) (the “Special Indemnification Matters”). (b) Subject to the limitations set forth in this Article VIand, after the Effective TimeClosing, each Stockholder shallthe Surviving Corporation) shall be entitled to be indemnified, severally and not jointlysolely from the Earn-Out Consideration, in accordance with its Pro Rata Additional Indemnity Share (or, with respect to the Donee Stockholders, Pro Rata Share), indemnify and hold the Parent Indemnified Parties harmless from and against, and shall reimburse the Parent Indemnified Parties for, against any and all Losses. For purposes of this Section 7, as incurreda "Loss" shall include losses, damages, claims, obligations, liabilities, penalties, fines, costs and expenses (including without limitation reasonable attorneys' and consultants' fees and costs and expenses incurred in investigating, preparing, defending against or prosecuting any litigation, claim, proceeding, demand or request for action by any governmental or administrative entity), of any kind or character but excluding any special, indirect, consequential, exemplary and punitive damages and also excluding any damages associated with any lost profits or lost opportunities (unless such damages are included in an judgment or settlement payable to a third party in accordance with Section 7.4) arising out of: of or in connection with any of the following: (ia) any breach of any representation, warranty of the representations or certification warranties of the Company contained in or made by such Person expressly set forth in such Person’s Letter pursuant to Section 2 of Transmittal or Support this Agreement, as applicable; ; (iib) any the breach by such Person of any covenant or other obligation of such Person in such Person’s Letter of Transmittal or Support Agreement, as applicable, or any breach of the Stockholder Representative of any covenant Company in this Agreement; or (iiic) any Fraud by such Person in the making of the representation and warranties (A) set forth in such Person’s Letter of Transmittal or Support Agreement, as applicableExcess Transaction Expenses, or (Bd) any items disclosed in which Section 2.3.2 of the Schedule of Exceptions; provided, however, that for purposes of computing the amount of any Loss incurred by Parent: (i) there shall be deducted an amount equal to the amount of any Tax benefit actually received or receivable by Parent or any of its affiliates in connection with such Person participatedLoss or any of the circumstances giving rise thereto; (ii) there shall be deducted an amount equal to the amount of any insurance proceeds, caused indemnification payments, contribution payments or had actual knowledge ofreimbursements actually received or receivable by Parent or any of its affiliates in connection with such Loss or any of the circumstances giving rise thereto.

Indemnification by the Stockholders. (a) Subject The Stockholders, on behalf of themselves and their respective successors, executors, administrators, estates, heirs and permitted assigns, agree subsequent to the limitations set forth in this Article VI, after the Effective Time the Stockholders shall, severally (in proportion to their respective Pro Rata Additional Indemnity Share (or, in the case of the Donee Stockholders, their respective Pro Rata Share)) and not jointly, indemnify and hold Parent and harmless the Surviving Corporation and their its respective officers, directors, employees, employees and agents and Affiliates (eachindividually, a “"Parent Indemnified Party” " and collectively, the “"Parent Indemnified Parties”") harmless from and against, against and shall reimburse the Parent Indemnified Parties for, any and in respect of all losses, damages, liabilities, Taxes, obligations, judgmentsdamages, deficiencies, actions, suits, proceedings, demands, assessments, orders, settlement payments, awards, writs, injunctions, decreesjudgments, fines, penalties, reasonable costs and expenses (including the reasonable legal fees, disbursements and accounting fees expenses of attorneys, accountants and expensesconsultants) and of any kind or nature whatsoever (whether or not involving arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) sustained, suffered or incurred by or made against any Parent Indemnified Party (a Third Party Claim (collectively, “"Loss" or "Losses”"), as incurred, arising out of, based upon or in connection with: (ia) any breach of any representation, warranty warranty, covenant or certification agreement made by or on behalf of the Company expressly set forth in this Agreement, in or the Disclosure Memorandum or in any other Operative Document; (ii) any breach by any Group Company of any covenant or other obligation Stockholders in this Agreement or in any schedule, exhibit, certificate, agreement or other Operative Document; instrument required to be delivered by the by the Stockholders under this Agreement, or by reason of any claim, action or proceeding asserted or instituted arising out of any matter or thing covered by any such representations or warranties. Claims under clause (iiia) of this SECTION 12.1 are hereinafter collectively referred to as "Parent Indemnifiable Claims". The payment of any Parent Indemnifiable Claim by the Stockholders hereunder shall be made (i) 55% in shares of Parent Stock from the Escrow Shares to the extent available and all Pre-Closing Taxes then from the stockholders directly, and (ii) 45% in cash or the nonpayment thereof)other readily available funds. The Stockholders, other than Pre-Closing Taxes reflected on the Post-Closing Statement and specifically taken into account in computing Net Working Capital as finally determined under Section 1.15; (iv) any Transaction Costs of the Company and any Debt, other than the Transaction Costs and Debt reflected on the Post-Closing Statement and specifically taken into account in determining indemnification obligations hereunder shall be limited to the Merger Consideration of $3,500,000, as finally determined under Section 1.15; (v) any demand for appraisal rights, including any Dissenting Share Payments; (vi) any claims by any Stockholder relating to the matters contemplated by this Agreement or the other Operative Documents (including any claim alleging a breach of fiduciary duty or a misallocation of the Merger Consideration, but for the avoidance of doubt not including any claims by any Stockholder or the Stockholder Representative enforcing any Stockholder’s rights under this Agreement or any other Operative Agreement); (vii) any Fraud by any Group Company in the making of the representations and warranties set forth in Article II or in any certificate delivered adjusted pursuant to SECTION 2 of this Agreement; (viii) any claim or right asserted by any Stockholder or person who is or at any time was an officer or director of any Group Company, involving a right or entitlement to indemnification, reimbursement of expenses or any other similar relief or remedy with respect to any act or omission on the part . After payment of such person or any event or other circumstance that arose occurred or existed at or prior to amount, the Effective Time; (ix) any amounts that any Person (in such Person’s capacity as a Stockholder) is entitled to receive in connection with the Merger in excess of the amount indicated on the Payment Schedules (together with any Post-Closing Payment Amounts that may become payable) due to any inaccuracies in the Payment Schedules; (x) any inaccuracies in the Payment Schedules; or (xi) any of the matters set forth on Schedule 6.2(a)(xi) (the “Special Indemnification Matters”)Stockholders' indemnification obligations hereunder shall terminate. (b) Subject to the limitations set forth in this Article VI, after the Effective Time, each Stockholder shall, severally and not jointly, in accordance with its Pro Rata Additional Indemnity Share (or, with respect to the Donee Stockholders, Pro Rata Share), indemnify and hold the Parent Indemnified Parties harmless from and against, and shall reimburse the Parent Indemnified Parties for, any and all Losses, as incurred, arising out of: (i) any breach of any representation, warranty or certification made by such Person expressly set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable; (ii) any breach by such Person of any covenant or other obligation of such Person in such Person’s Letter of Transmittal or Support Agreement, as applicable, or any breach of the Stockholder Representative of any covenant in this Agreement; or (iii) any Fraud by such Person in the making of the representation and warranties (A) set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable, or (B) in which such Person participated, caused or had actual knowledge of.

Indemnification by the Stockholders. (a) Subject to the limitations set forth in this Article VIThe Purchaser and its Affiliates, after the Effective Time the Stockholders shall, severally (in proportion to their respective Pro Rata Additional Indemnity Share (or, in the case of the Donee Stockholders, their respective Pro Rata Share)) and not jointly, indemnify and hold Parent and Surviving Corporation and their respective officers, directors, employees, agents agents, successors and Affiliates assigns (each, a “Parent each an "Indemnified Party” ") shall be indemnified and collectivelyheld harmless by the Stockholders, the “Parent Indemnified Parties”) harmless from jointly and againstseverally, for and shall reimburse the Parent Indemnified Parties for, against any and all Liabilities, losses, diminution in value, damages, liabilitiesclaims, Taxescosts and expenses, obligations, judgments, orders, settlement paymentsinterest, awards, writsjudgments and penalties (including, injunctionswithout limitation, decrees, fines, penalties, reasonable costs attorneys' and expenses (including reasonable legal and accounting consultants' fees and expenses) and whether actually suffered or not involving incurred by them (including, without limitation, any Action brought or otherwise initiated by any of them) (hereinafter a Third Party Claim (collectively, “Losses”"Loss"), as incurred, arising out ofof or resulting from: (i) any the breach of any representation, representation or warranty or certification made by or on behalf of the Company expressly set forth or any Stockholder contained in this Agreement, in Agreement or the Disclosure Memorandum or in any other Operative Document;Ancillary Agreements; or (ii) any the breach by any Group Company of any covenant or other obligation agreement by the Company or any Stockholder contained in this Agreement or in any other Operative Document; (iii) any and all Pre-Closing Taxes (or the nonpayment thereof), other than Pre-Closing Taxes reflected on the Post-Closing Statement and specifically taken into account in computing Net Working Capital as finally determined under Section 1.15; (iv) any Transaction Costs of the Company and any Debt, other than the Transaction Costs and Debt reflected on the Post-Closing Statement and specifically taken into account in determining the Merger Consideration as finally determined under Section 1.15; (v) any demand for appraisal rights, including any Dissenting Share Payments; (vi) any claims by any Stockholder relating to the matters contemplated by this Agreement or the other Operative Documents (including any claim alleging a breach of fiduciary duty or a misallocation of the Merger Consideration, but for the avoidance of doubt not including any claims by any Stockholder or the Stockholder Representative enforcing any Stockholder’s rights under this Agreement or any other Operative Agreement); (vii) any Fraud by any Group Company in the making of the representations and warranties set forth in Article II or in any certificate delivered pursuant to this Agreement; (viii) any claim or right asserted by any Stockholder or person who is or at any time was an officer or director of any Group Company, involving a right or entitlement to indemnification, reimbursement of expenses or any other similar relief or remedy with respect to any act or omission on the part of such person or any event or other circumstance that arose occurred or existed at or prior to the Effective Time; (ix) any amounts that any Person (in such Person’s capacity as a Stockholder) is entitled to receive in connection with the Merger in excess of the amount indicated on the Payment Schedules (together with any Post-Closing Payment Amounts that may become payable) due to any inaccuracies in the Payment Schedules; (x) any inaccuracies in the Payment Schedules; or (xi) any of the matters set forth on Schedule 6.2(a)(xi) (the “Special Indemnification Matters”). (b) Subject to the limitations set forth in this Article VI, after the Effective Time, each Stockholder shall, severally and not jointly, in accordance with its Pro Rata Additional Indemnity Share (or, with respect to the Donee Stockholders, Pro Rata Share), indemnify and hold the Parent Indemnified Parties harmless from and against, and shall reimburse the Parent Indemnified Parties for, any and all Losses, as incurred, arising out of: (i) any breach of any representation, warranty or certification made by such Person expressly set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable; (ii) any breach by such Person of any covenant or other obligation of such Person in such Person’s Letter of Transmittal or Support Agreement, as applicable, or any breach of the Stockholder Representative of any covenant in this AgreementAncillary Agreements; or (iii) any Fraud by such Person in the making Liabilities of the representation Company or any Subsidiary not reflected on the Reference Balance Sheet, whether arising before or after the Closing Date, arising from or relating to the ownership or actions or inactions of the Company or such Subsidiary or the conduct of the Business prior to the Closing; or (iv) any and warranties all Losses suffered or incurred by the Purchaser, the Company or any Subsidiary by reason of or in connection with any claim or cause of action of any third party to the extent arising out of any action, inaction, event, condition, liability or obligation of the Company or any Stockholder occurring or existing prior to the Closing; or (Av) the excess of the amounts payable by the Purchaser following the Closing Date that relate to service by any employee of the Company through to the Closing Date. To the extent that the Stockholders' undertakings set forth in such Person’s Letter this Section 9.02 may be unenforceable, each Stockholder shall contribute the maximum amount that he or she is permitted to contribute under applicable Law to the payment and satisfaction of Transmittal all Losses incurred by the Purchaser, the Company and the Subsidiaries. (b) An Indemnified Party shall give the Stockholder Representative notice of any matter which an Indemnified Party has determined has given or Support could give rise to a right of indemnification under this Agreement, within 60 days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations and Liabilities of the Stockholders under this Article IX with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article IX ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, the Indemnified Party shall give the Stockholder Representative notice of such Third Party Claim within 30 days of the receipt by the Indemnified Party of such notice; provided, however, that the failure to provide such notice shall not release the Stockholders from any of its obligations under this Article IX except to the extent that the Stockholders are materially prejudiced by such failure and shall not relieve the Stockholders from any other obligation or Liability that they may have to any Indemnified Party otherwise than under this Article IX. If the Stockholder Representative acknowledges in writing the Stockholders' obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Stockholder Representative shall be entitled to assume and control the defense of such Third Party Claim at the Stockholders' expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within five days of the receipt of such notice from the Indemnified Party; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party and the Stockholders, then the Indemnified Party shall be entitled to retain its own counsel, in each jurisdiction for which the Indemnified Party determines counsel is required, at the expense of the Stockholders. In the event that the Stockholder Representative exercises the right to undertake any such defense against any such Third Party Claim as applicableprovided above, the Indemnified Party shall cooperate with the Stockholder Representative in such defense and make available to the Stockholder Representative, at the Stockholders' expense, all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonably required by the Stockholder Representative. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Stockholder Representative shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Stockholders' expense, all such witnesses, records, materials and information in the Stockholders' possession or under the Stockholders' control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Stockholder Representative or the Stockholders without the prior written consent of the Indemnified Party. (Bc) No claim may be made against the Stockholders for indemnification pursuant to Section 9.02(a)(i) unless the aggregate of all Losses of the Indemnified Parties with respect to Section 9.02(a)(i) shall exceed an amount equal to $100,000, in which case the Stockholders shall be liable for all of such Person participated, caused or had actual knowledge ofLoss (subject to Section 9.02(d)). (d) The maximum amount of indemnifiable Losses that may be recovered from the Stockholders arising out of this Agreement shall be equal to $15,000,000.

Indemnification by the Stockholders. (a) Subject to the limitations set forth in other terms of this Article VISection 6.2, after the Effective Time the Stockholders shallwill, severally (in proportion to their respective Pro Rata Additional Indemnity Share (or, in the case of the Donee Stockholders, their respective Pro Rata Share)) and but not jointly, defend, indemnify and hold Parent harmless the Buyer and Surviving Corporation and their respective officers, directors, employees, agents and Affiliates its Representatives (each, a “Parent Indemnified Party” and collectively, the “Parent Buyer Indemnified Parties”) harmless ), from and against, against and shall reimburse the Parent Indemnified Parties for, in respect of any and all losses, damages, liabilities, Taxes, obligations, claims, actions, damages, judgments, orders, settlement payments, awards, writs, injunctions, decreespenalties, fines, penaltiessettlements and expenses, reasonable costs and expenses (including reasonable legal and accounting attorneys’ fees and expenses) and whether or not involving a Third Party Claim (collectively, “Losses”), as incurred, incurred by any of the Buyer Indemnified Parties arising out of: , based upon or related to (i) any inaccuracy or breach of any representation, warranty of the representations or certification warranties made by or on behalf any of the Company expressly set forth or the Stockholders in this Agreement, in the Disclosure Memorandum or in any other Operative Document; (ii) any breach by any Group Company of or failure to comply with any covenant or other obligation agreement made by any of the Company or the Stockholders in this Agreement or in any other Operative Document; Agreement, (iii) any and all Pre-Closing Company Taxes for any Tax period (or the nonpayment portion thereof), other than Pre-Closing Taxes reflected ) ending on the Post-Closing Statement and specifically taken into account in computing Net Working Capital as finally determined under Section 1.15; (iv) any Transaction Costs of the Company and any Debt, other than the Transaction Costs and Debt reflected on the Post-Closing Statement and specifically taken into account in determining the Merger Consideration as finally determined under Section 1.15; (v) any demand for appraisal rights, including any Dissenting Share Payments; (vi) any claims by any Stockholder relating or prior to the matters contemplated by this Agreement or the other Operative Documents (including Closing Date, excluding 50% of any claim alleging a breach of fiduciary duty or a misallocation of the Merger Consideration, but for the avoidance of doubt not including any claims by any Stockholder or the Stockholder Representative enforcing any Stockholder’s rights under Transfer Taxes incurred in connection with this Agreement or any other Operative Agreement); (vii) any Fraud by any Group Company in the making of the representations and warranties set forth in Article II Contemplated Transactions, or in (iv) third-party demands, threats, allegations, claims, proceedings or actions against any certificate delivered pursuant to this Agreement; (viii) any claim of the Stockholders or right asserted by any Stockholder or person who is or at any time was an officer or director of any Group the Company, involving a right or entitlement to indemnification, reimbursement of expenses or any other similar relief or remedy with respect to any act or omission on the part of such person or any event or other circumstance that arose occurred or existed at or prior to the Effective Time; (ix) any amounts that any Person (in such Person’s capacity as a Stockholder) is entitled to receive . Losses in connection with the Merger in excess of foregoing subsection 6.2(a)(iv) shall include all costs and expenses, including, without limitation, all out-of-pocket expenses and all attorneys’ fees incurred by the amount indicated on Buyer. Such Losses shall be owed and payable by the Payment Schedules (together with Stockholders as and when incurred by the Buyer, and the Buyer shall have the right to set-off such Losses against any Post-Closing Payment Amounts that may become payable) due to any inaccuracies in amounts owed by the Payment Schedules; (x) any inaccuracies in the Payment Schedules; or (xi) any of the matters set forth on Schedule 6.2(a)(xi) (the “Special Indemnification Matters”). (b) Subject Buyer to the limitations set forth Stockholders hereunder on a dollar-for-dollar basis and in this Article VI, after the Effective Time, each Stockholder shall, severally and not jointly, in accordance with its Pro Rata Additional Indemnity Share (or, with respect an amount equal to the Donee Stockholders, Pro Rata Share), indemnify and hold the Parent Indemnified Parties harmless from and against, and shall reimburse the Parent Indemnified Parties for, any and all Losses, as incurred, arising out of: (i) any breach of any representation, warranty or certification made by such Person expressly set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable; (ii) any breach by such Person of any covenant or other obligation aggregate dollar value of such Person in such Person’s Letter of Transmittal or Support AgreementLosses. “Transfer Taxes” shall mean any transfer, as applicabledocumentary, or any breach of the Stockholder Representative of any covenant in this Agreement; or (iii) any Fraud by such Person in the making of the representation sales, use, stamp, registration and warranties (A) set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable, or (B) in which such Person participated, caused or had actual knowledge ofother substantially similar Taxes and fees.

Indemnification by the Stockholders. (a) Subject to the limitations set forth in this Article VIherein, after the Effective Time the Stockholders shall, jointly and severally (in proportion except with respect to their respective Pro Rata Additional Indemnity Share (orArticle III hereof, in with respect to which the case of the Donee Stockholders, their respective Pro Rata Share)) ’ obligations shall be several and not jointlyjoint), indemnify and hold Parent defend the Purchaser and Surviving Corporation its Affiliates (including, after the Closing, the Company) and their respective stockholders, members, managers, officers, directors, employees, agents agents, representatives, successors and Affiliates assigns (each, a “Parent Indemnified Party” and collectively, the “Parent Indemnified PartiesPurchaser Indemnitees”) harmless from and against, and shall reimburse the Parent Indemnified Parties forhold them harmless from, any and all losses, damages, liabilitiesclaims, charges, Liabilities, Actions, interest, penalties, Taxes, obligationsdiminutions in value, judgments, orders, settlement payments, awards, writs, injunctions, decrees, fines, penalties, reasonable costs and expenses (expenses, including reasonable legal legal, consultant, accounting and accounting other professional fees, and fees and expenses) and whether or not involving a Third Party Claim costs incurred in enforcing rights under this Agreement (collectively, “Losses”), as incurred) resulting from, arising out of: , or incurred by any Purchaser Indemnitee in connection with, or otherwise with respect to: (ia) any inaccuracy or breach of any representation, representation or warranty or certification made by or on behalf of the Company expressly set forth Stockholders in this Agreement, any of the Ancillary Agreements or any certificate or other document furnished or to be furnished to Purchaser in connection with the Disclosure Memorandum or in any other Operative Document; transactions contemplated by this Agreement; (iib) any breach by any Group Company the Stockholders of any covenant or other obligation agreement contained in this Agreement or in any other Operative Document; of the Ancillary Agreements; (iiic) any and all Pre-Closing Taxes (Tax imposed on or the nonpayment thereof), other than Pre-Closing Taxes reflected on the Post-Closing Statement and specifically taken into account in computing Net Working Capital as finally determined under Section 1.15; (iv) any Transaction Costs of the Company and any Debt, other than the Transaction Costs and Debt reflected on the Post-Closing Statement and specifically taken into account in determining the Merger Consideration as finally determined under Section 1.15; (v) any demand for appraisal rights, including any Dissenting Share Payments; (vi) any claims by any Stockholder relating to the matters contemplated by this Agreement or the other Operative Documents (including any claim alleging a breach of fiduciary duty or a misallocation of the Merger Consideration, but for the avoidance of doubt not including any claims by any Stockholder or the Stockholder Representative enforcing any Stockholder’s rights under this Agreement or any other Operative Agreement); (vii) any Fraud by any Group Company in the making of the representations and warranties set forth in Article II or in any certificate delivered pursuant to this Agreement; (viii) any claim or right asserted by any Stockholder or person who is or at any time was an officer or director of any Group Company, involving a right or entitlement to indemnification, reimbursement of expenses or any other similar relief or remedy with respect to any act or omission on Pre-Closing Period (except to the part extent that the Stockholders have already made payments in respect of such person Tax pursuant to Section 6.10(a)); (d) any Liabilities of the Company for the Taxes of another Person as a transferee or any event successor, by Contract, or other circumstance that otherwise, where the Company became a transferee or successor, entered into such Contract or the connection giving rise to such Liabilities arose occurred or existed at or prior to the Effective Time; Closing; and (ixe) any amounts that any Person (in such Person’s capacity as a Stockholder) is entitled to receive in connection with the Merger in excess Liability of the amount indicated on the Payment Schedules (together with any Post-Closing Payment Amounts that may become payable) due to any inaccuracies in the Payment Schedules; (x) any inaccuracies in the Payment Schedules; or (xi) any of the matters set forth on Schedule 6.2(a)(xi) (the “Special Indemnification Matters”)Stockholders. (b) Subject to the limitations set forth in this Article VI, after the Effective Time, each Stockholder shall, severally and not jointly, in accordance with its Pro Rata Additional Indemnity Share (or, with respect to the Donee Stockholders, Pro Rata Share), indemnify and hold the Parent Indemnified Parties harmless from and against, and shall reimburse the Parent Indemnified Parties for, any and all Losses, as incurred, arising out of: (i) any breach of any representation, warranty or certification made by such Person expressly set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable; (ii) any breach by such Person of any covenant or other obligation of such Person in such Person’s Letter of Transmittal or Support Agreement, as applicable, or any breach of the Stockholder Representative of any covenant in this Agreement; or (iii) any Fraud by such Person in the making of the representation and warranties (A) set forth in such Person’s Letter of Transmittal or Support Agreement, as applicable, or (B) in which such Person participated, caused or had actual knowledge of.