Common use of Indemnification of Parent Clause in Contracts

Indemnification of Parent. (a) Subject to the provisions of this Article IX and the Escrow Agreement, from and after the Closing, Parent shall be entitled to be indemnified, held harmless and defended against, any damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, and costs and expenses (collectively, “Losses”) sustained by, incurred by, suffered by or asserted against Parent or any of its Affiliates (including the Surviving Corporation following the Closing) and their respective officers, directors, shareholders, agents, equity holders, representatives and employees (each, a “Parent Indemnified Party”) to the extent relating to or arising as a result of: (i) any breach or inaccuracy of any representation or warranty made by the Company in this Agreement or in any certificate delivered to Parent pursuant to this Agreement; and (ii) any breach of any covenant or agreement made by the Company in this Agreement or in any certificate delivered to Parent pursuant to this Agreement. (b) For purposes of determining whether a representation or warranty made by the Company in this Agreement was breached or inaccurate for purposes of this Section 9.2 and for calculating the amount of Losses resulting from such breach or inaccuracy, any qualification as to materiality, “Material Adverse Effect” or words of like meaning included in any applicable representation and warranty in this Agreement shall be disregarded as if such qualification was not included. (c) Notwithstanding anything to the contrary in this Agreement, except with respect to claims based on actual fraud in connection with this Agreement (“Fraud”): (i) no Parent Indemnified Party may recover for any claim for indemnification pursuant to this Article IX unless and until the aggregate amount of indemnifiable Losses that may be recovered by the Parent Indemnified Parties pursuant to this Article IX equals or exceeds $1,750,000 (the “Deductible”), in which event Parent shall only be entitled to indemnification for all indemnifiable Losses in excess of the Deductible (subject to the other limitations herein); and (ii) the maximum aggregate amount of indemnifiable Losses that may be recovered pursuant to this Article IX shall be the Indemnity Escrow Amount (the “Cap”). (d) Subject to Section 9.2(c)(i), the Parent Indemnified Parties’ recourse for Losses (except with respect to claims based on Fraud) shall be (A) first, to the Indemnity Escrow Amount and (B) second, the Parent Indemnified Parties shall be entitled to recover any such remaining Losses from the RWI Policy. After the Indemnity Escrow Amount shall have been depleted or distributed pursuant to the terms of the Escrow Agreement, any such Losses shall be satisfied solely against the RWI Policy, and, except for claims against the Indemnity Escrow Account, the Parent Indemnified Parties shall not directly or indirectly pursue any right, claim or action for indemnification, contribution or recovery against the Stockholders or any of their Affiliates for the recovery of such Losses or otherwise under this Article IX.

Indemnification of Parent. (a) Subject From and after the Closing (but subject to the provisions terms and conditions of this Article IX 7), each Company Securityholder, based upon and limited to each such Company Securityholder’s Distribution Allocation, shall, in each case, severally but not jointly, indemnify and hold the Escrow Agreement, Parent Indemnitees (as defined below) harmless from and after the Closing, Parent shall be entitled to be indemnified, held harmless against any and defended against, any damages, all losses, charges, liabilities, claims, demandssuits, actions, suitsobligations, proceedingsdeficiencies, paymentsdemands, awards, judgments, settlements, assessments, deficiencies, taxesdamages, interest, fines, penalties, and costs and expenses (collectivelyincluding reasonable costs of investigation and defense and reasonable attorneys’ and other professionals’ reasonable fees and expenses) whether or not involving a Third Party Claim, but specifically excluding consequential, special, incidental, indirect, exemplary or punitive damages (including diminution of value, loss of future revenue, lost profits or lost business opportunity as consequential or indirect damages) except to the extent actually awarded in a Third Party Claim (hereinafter individually a “Loss” and collectively “Losses”) sustained bysuffered or incurred by Parent, incurred by, suffered by or asserted against Parent its Affiliates or any of its Affiliates (including the Surviving Corporation following the Closing) and their respective officers, directors, shareholdersmanagers, employees, stockholders, members, partners, agents, equity holders, representatives or successors and employees assigns (each, a the “Parent Indemnified PartyIndemnitees”) to the extent relating to attributable to, or arising as a result ofor resulting from: (i) any breach or inaccuracy the fraud of any representation or warranty made by the Company in this Agreement or in any certificate delivered to Parent pursuant to this Agreement; andCompany; (ii) the fraud of any Company Securityholder (but each Company Securityholder’s liability shall be limited to Losses caused by its own fraud); (iii) any breach of any covenant or agreement of Company contained in this Agreement; (iv) any proceeding in respect of any Dissenting Shares and any payments required to be made by Parent or the Surviving Company to any Person that was a holder of Company Stock immediately prior to the Effective Time in this Agreement or in any certificate delivered respect of such Person’s Dissenting Shares, to Parent the extent that such payments exceed the portion of the final Aggregate Merger Consideration to which such Person would have been entitled pursuant to this AgreementAgreement in respect of such Dissenting Shares if such Person had not exercised appraisal or dissenting rights in respect thereof; and (v) any Pre-Closing Tax Liability. (b) For purposes The parties hereto acknowledge and agree that the Representative (solely in its capacity as the Representative) is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of determining whether the transactions contemplated hereby. Accordingly, the parties hereto acknowledge and agree that other than any liability which any Company Securityholder may have hereunder, Representative shall have no additional liability to, and shall not be liable for any Losses of, any party hereto or to any Parent Indemnitee in connection with any obligations of the Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except to the extent such Losses are a representation result of gross negligence or warranty made willful misconduct by the Company Representative in this Agreement was breached or inaccurate for purposes connection with the performance of this Section 9.2 and for calculating the amount of Losses resulting from such breach or inaccuracy, any qualification as to materiality, “Material Adverse Effect” or words of like meaning included in any applicable representation and warranty in this Agreement shall be disregarded as if such qualification was not includedits obligations hereunder. (c) Notwithstanding anything to the contrary in this Agreement, except with respect to claims based on actual fraud in connection with this Agreement (“Fraud”): (i) no Parent Indemnified Party may recover for any claim for indemnification pursuant to this Article IX unless and until the aggregate amount of indemnifiable Losses that may be recovered by the Parent Indemnified Parties pursuant to this Article IX equals or exceeds $1,750,000 (the “Deductible”), in which event Parent shall only be entitled to indemnification for all indemnifiable Losses in excess of the Deductible (subject to the other limitations herein); and (ii) the maximum aggregate amount of indemnifiable Losses that may be recovered pursuant to Section 7.2 shall take account of and be reduced by (i) any amounts recovered by the Parent Indemnitees or the Surviving Company pursuant to any indemnification by or indemnification agreement with any third party, (ii) any refund, credit or reduction in Tax realized by such Parent Indemnitees or their Affiliates arising from the incurrence or payment of such indemnifiable Losses (based upon the maximum marginal federal, state or local tax rate applicable to such Persons), and (iii) the amount of any insurance proceeds, contribution payments or reimbursements actually received or receivable by the Parent Indemnitees in respect thereof (each Person named and source identified in clauses (i) through (iii), a “Collateral Source”). The Parent Indemnitees shall use commercially reasonable efforts to seek recovery from all Collateral Sources; it being understood that the reasonable costs and expenses of exercising such efforts shall be deemed Losses. If the amount to be netted hereunder from any payment required under Section 7.2 is determined after payment the set off of any Earnout Payment of any amount otherwise required to be paid to a Parent Indemnitee under this Article IX 7, the Parent Indemnitees shall be repay to the Indemnity Escrow Amount (Company Securityholders, promptly after such determination, any amount that the “Cap”)Company Securityholders would not have had to pay pursuant to this Section 7.2(c) had such determination been made at the time of such payment. (d) Subject Amounts payable by any Company Securityholder to Parent pursuant to this Section 9.2(c)(i), the Parent Indemnified Parties’ recourse for Losses (except with respect to claims based on Fraud) shall be (A) first7.2 shall, to the Indemnity Escrow Amount and extent reasonably practicable, be satisfied by returning to Parent an amount of Parent Shares equal to (Bx) secondthe dollar value of such Company Securityholder’s indemnification obligation under this Section 7.2 divided by (y) the dollar value per Parent Share used to determine the amount of Parent Shares to be issued to such Company Securityholder pursuant to this Agreement, determined as if the Parent Indemnified Parties Shares having the highest dollar value per Parent Share were returned first. Notwithstanding anything to the contrary contained herein, in no event shall any Company Securityholder be liable under 7.2(a)(iv) for any amounts in excess of the consideration actually received by such Company Securityholder hereunder. (e) All payments under this Section 7.2 shall be entitled treated by the parties as an adjustment to recover any such remaining Losses from the RWI Policy. After proceeds received by the Indemnity Escrow Amount shall have been depleted or distributed Company Securityholders pursuant to Article 1, to the terms of the Escrow Agreement, any such Losses shall be satisfied solely against the RWI Policy, and, except for claims against the Indemnity Escrow Account, the Parent Indemnified Parties shall not directly or indirectly pursue any right, claim or action for indemnification, contribution or recovery against the Stockholders or any of their Affiliates for the recovery of such Losses or otherwise under this Article IXextent permitted by applicable Law.

Indemnification of Parent. (a) Subject to the provisions terms and conditions of this Article IX VII (including without limitation the limitations set forth in Section 7.4), Parent, the Surviving Corporations and their respective representatives, successors and permitted assigns (the “Parent Indemnitees”) shall be indemnified, defended and held harmless by those Persons who are holders of the Company Capital Stock at the Effective Time, but only to the extent of the Escrow AgreementShares, from and after the Closing, Parent shall be entitled to be indemnified, held harmless and defended against all Losses asserted against, resulting to, imposed upon, or incurred by any damagesParent Indemnitee by reason of, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, and costs and expenses (collectively, “Losses”) sustained by, incurred by, suffered by arising out of or asserted against Parent or any of its Affiliates (including the Surviving Corporation following the Closing) and their respective officers, directors, shareholders, agents, equity holders, representatives and employees (each, a “Parent Indemnified Party”) to the extent relating to or arising as a result ofresulting from: (i) any the inaccuracy or breach or inaccuracy of any representation or warranty of the Company contained in or made pursuant to this Agreement, any Schedule or any certificate delivered by the Company in this Agreement or in any certificate delivered to Parent pursuant to this Agreement with respect hereto or thereto in connection with the Closing; (ii) the non-fulfillment or breach of any covenant or agreement of the Company contained in this Agreement; and (iiiii) any breach the matters referred to in Schedule 2.10 of any covenant or agreement made by the Company in this Agreement or in any certificate delivered to Parent pursuant to this AgreementDisclosure Schedule. (b) For purposes As used in this Article VII, the term “Losses” shall include all losses, liabilities, damages, judgments, awards, orders, penalties, settlements, costs and expenses (including, without limitation, interest, penalties, court costs and reasonable legal fees and expenses) including those arising from any demands, claims, suits, actions, costs of investigation, notices of violation or noncompliance, causes of action, proceedings and assessments whether or not made by third parties or whether or not ultimately determined to be valid. Solely for the purpose of determining whether a the amount of any Losses (and not for determining any breach) for which Parent Indemnitee may be entitled to indemnification pursuant to Article VII, any representation or warranty made by the Company contained in this Agreement was breached that is qualified by a term or inaccurate for purposes of this Section 9.2 and for calculating the amount of Losses resulting from terms such breach as “material,” “materially,” or inaccuracy, any qualification as to materiality, “Material Adverse Effect” or words of like meaning included in any applicable representation and warranty in this Agreement shall be disregarded as if deemed made or given without such qualification was not includedand without giving effect to such words. (c) Notwithstanding anything to the contrary in this Agreement, except with respect to claims based on actual fraud in connection with this Agreement (“Fraud”): (i) no Parent Indemnified Party may recover for any claim for indemnification pursuant to this Article IX unless and until the aggregate amount of indemnifiable Losses that may be recovered by the Parent Indemnified Parties pursuant to this Article IX equals or exceeds $1,750,000 (the “Deductible”), in which event Parent shall only be entitled to indemnification for all indemnifiable Losses in excess of the Deductible (subject to the other limitations herein); and (ii) the maximum aggregate amount of indemnifiable Losses that may be recovered pursuant to this Article IX shall be the Indemnity Escrow Amount (the “Cap”). (d) Subject to Section 9.2(c)(i), the Parent Indemnified Parties’ recourse for Losses (except with respect to claims based on Fraud) shall be (A) first, to the Indemnity Escrow Amount and (B) second, the Parent Indemnified Parties shall be entitled to recover any such remaining Losses from the RWI Policy. After the Indemnity Escrow Amount shall have been depleted or distributed pursuant to the terms of the Escrow Agreement, any such Losses shall be satisfied solely against the RWI Policy, and, except for claims against the Indemnity Escrow Account, the Parent Indemnified Parties shall not directly or indirectly pursue any right, claim or action for indemnification, contribution or recovery against the Stockholders or any of their Affiliates for the recovery of such Losses or otherwise under this Article IX.

Indemnification of Parent. (a) Subject From and after and by virtue of the Merger, subject to the provisions terms of this Article IX V, the Stockholders and Optionholders agree to jointly and severally indemnify and hold harmless Parent and its officers, directors, affiliates, employees, agents and representatives, including the Escrow AgreementSurviving Corporation (each, a "Parent Indemnified Party" and collectively, the "Parent Indemnified Parties"), from and after the Closing, Parent shall be entitled to be indemnified, held harmless and defended against, any damagesagainst all claims, losses, charges, liabilities, claimsdamages, demandsdeficiencies, actionsTaxes, suitscosts, proceedingsinterest, paymentsawards, judgments, settlementsand expenses, assessments, deficiencies, taxes, interest, penalties, including reasonable attorneys' and costs consultants' fees and expenses and including any such reasonable expenses incurred in connection with investigating, defending against or settling any of the foregoing, including any Losses to the extent they were a reasonably foreseeable consequence of the applicable breach or other cause of such Losses, but excluding incidental, indirect, special exemplary or punitive damages, except for any such Losses as may be payable to a third party in respect of a Third Party Claim or with respect to a claim of fraud to the extent actually awarded to a Governmental Entity or other third party (collectivelyhereinafter individually a "Loss" and collectively "Losses") paid, “Losses”) sustained by, incurred byincurred, suffered or sustained by or asserted against the Parent Indemnified Parties, or any of its Affiliates them (including the Surviving Corporation following the ClosingCorporation) and their respective officers(regardless of whether or not such Losses relate to any third party claims), directorsdirectly or indirectly, shareholdersresulting from, agentsarising out of, equity holders, representatives and employees (each, a “Parent Indemnified Party”) to the extent or relating to or arising as a result ofany of the following: (i) any breach of or inaccuracy in, as of any the date hereof or as of the Effective Time, a representation or warranty made of the Company set forth in this Agreement, without giving effect to any qualifications based on the word "material" or similar phrases (including "Company Material Adverse Effect") limiting the scope of such representation or warranty; (ii) third party Actions against Parent or any Subsidiary (including the Company) following the Closing, including the costs of defending against and settling any such third party claims, if the facts and circumstances alleged in third party Action would give the Indemnified Parties a right to indemnification under Section 5.2(a)(i) if such facts and circumstances were factually accurate; (iii) any failure by the Company to perform or comply with any of its covenants or agreements set forth in this Agreement or Agreement; (iv) any payment in respect of any certificate delivered to Parent pursuant to Dissenting Shares in excess of the consideration that otherwise would have been payable in respect of such shares in accordance with this Agreement, and any other Losses paid, incurred, suffered or sustained in respect of any Dissenting Shares, including all attorneys' and consultants' fees, costs and expenses and including any such fees, costs and expenses incurred in connection with investigating, defending against or settling any action or proceeding in respect of Dissenting Shares; (v) any Pre-Closing Taxes of the Company; and (iivi) any breach inaccuracy or omission in the Spreadsheet, including any amounts set forth therein that are paid to a Person in excess of any covenant or agreement made by the Company in amounts that such Person is entitled to receive pursuant to the terms of this Agreement or in and any certificate delivered amounts that a Person was entitled to Parent receive pursuant to the terms of this AgreementAgreement that were omitted from the Spreadsheet. (b) For purposes The Stockholders and Optionholders shall not have any right of determining whether contribution, indemnification or right of advancement from the Surviving Corporation or Parent with respect to any Loss claimed by a representation or warranty made by the Company in this Agreement was breached or inaccurate for purposes of this Section 9.2 and for calculating the amount of Losses resulting from such breach or inaccuracy, any qualification as to materiality, “Material Adverse Effect” or words of like meaning included in any applicable representation and warranty in this Agreement shall be disregarded as if such qualification was not includedParent Indemnified Party. (c) Notwithstanding anything Any payments made to a Parent Indemnified Party pursuant to any indemnification obligations under this Article V will be treated as adjustments to the contrary in Merger Consideration for Tax purposes and such agreed treatment will govern for purposes of this Agreement, except with respect to claims based on actual fraud in connection with this Agreement (“Fraud”): (i) no Parent Indemnified Party may recover for any claim for indemnification pursuant to this Article IX unless and until the aggregate amount of indemnifiable Losses that may be recovered otherwise required by the Parent Indemnified Parties pursuant to this Article IX equals or exceeds $1,750,000 (the “Deductible”), in which event Parent shall only be entitled to indemnification for all indemnifiable Losses in excess of the Deductible (subject to the other limitations herein); and (ii) the maximum aggregate amount of indemnifiable Losses that may be recovered pursuant to this Article IX shall be the Indemnity Escrow Amount (the “Cap”)applicable Legal Requirements. (d) Subject to Section 9.2(c)(i), the Parent Indemnified Parties’ recourse for Losses (except with respect to claims based on Fraud) shall be (A) first, to the Indemnity Escrow Amount and (B) second, the Parent Indemnified Parties shall be entitled to recover any such remaining Losses from the RWI Policy. After the Indemnity Escrow Amount shall have been depleted or distributed pursuant to the terms of the Escrow Agreement, any such Losses shall be satisfied solely against the RWI Policy, and, except for claims against the Indemnity Escrow Account, the Parent Indemnified Parties shall not directly or indirectly pursue any right, claim or action for indemnification, contribution or recovery against the Stockholders or any of their Affiliates for the recovery of such Losses or otherwise under this Article IX.

Indemnification of Parent. (a) Subject From and after the Closing (but subject to the provisions terms and conditions of this Article IX 7), each Preferred Stockholder and Warrant Holder, based upon each such Preferred Stockholder’s or Warrant Holder’s Proportionate Share of the Escrow AgreementFund, and thereafter, each Company Equityholder, based upon each such Company Equityholder’s Fully Diluted Ownership Percentage, shall, in each case, severally but not jointly, indemnify and hold the Parent Indemnitees (as defined below) harmless from and after the Closing, Parent shall be entitled to be indemnified, held harmless against any and defended against, any damages, all losses, charges, liabilities, claims, demandssuits, actions, suitsobligations, proceedingsdeficiencies, paymentsdemands, awards, judgments, settlements, assessments, deficiencies, taxesdamages, interest, fines, penalties, and costs and expenses (collectivelyincluding reasonable costs of investigation and defense and reasonable attorneys’ and other professionals’ reasonable fees and expenses) whether or not involving a Third Party Claim, but specifically excluding consequential, special, incidental, indirect, exemplary or punitive damages (including diminution of value, loss of future revenue, lost profits or lost business opportunity as consequential or indirect damages) except to the extent actually awarded in a Third Party Claim (hereinafter individually a “Loss” and collectively “Losses”) sustained bysuffered or incurred by Parent, incurred by, suffered by or asserted against Parent its Affiliates or any of its Affiliates (including the Surviving Corporation following the Closing) and their respective officers, directors, shareholdersmanagers, employees, stockholders, members, partners, agents, equity holders, representatives or successors and employees assigns (each, a the “Parent Indemnified PartyIndemnitees”) to the extent relating to attributable to, or arising as a result ofor resulting from: (i) any breach or inaccuracy of any representation or warranty made by the of Company contained in this Agreement or in any certificate delivered to Parent pursuant to Article 3 of this Agreement; and; (ii) any breach of any covenant or agreement of Company contained in this Agreement; (iii) any proceeding in respect of any Dissenting Shares and any payments required to be made by Parent or the Surviving Company to any Person that was a holder of Company Stock immediately prior to the Effective Time in this Agreement or in any certificate delivered respect of such Person’s Dissenting Shares, to Parent the extent that such payments exceed the portion of the final Aggregate Merger Consideration to which such Person would have been entitled pursuant to this AgreementAgreement in respect of such Dissenting Shares if such Person had not exercised appraisal or dissenting rights in respect thereof; and (iv) any Stockholder Transaction Expenses or Indebtedness that were not taken into account in the determination of the Aggregate Merger Consideration. (b) For purposes of determining whether a representation or warranty made by Notwithstanding anything to the Company contrary set forth in this Agreement was breached or inaccurate for purposes of this Section 9.2 and for calculating the amount of Losses resulting from such breach or inaccuracyAgreement, any qualification as each Parent Indemnitee’s right to materiality, “Material Adverse Effect” or words of like meaning included in any applicable representation and warranty in recover a Loss pursuant to this Agreement shall be disregarded limited as if follows: (i) no Parent Indemnitee shall be entitled to any indemnification under Section 7.2(a)(i) for any individual item unless the Loss relating to such qualification was claim, (or series of claims arising from the same or substantially similar facts or circumstances) is more than $25,000; (ii) subject to Section 7.2(b)(iv), no Parent Indemnitee shall be entitled to any indemnification hereunder unless the aggregate of all Losses relating to all breaches of such representations, warranties and covenants would exceed on a cumulative basis an amount equal to $500,000 (the “Basket”), in which case Parent Indemnitees shall be entitled to seek compensation for all such Losses in excess of the Basket; (iii) subject to Section 7.2(b)(v), the aggregate indemnification of the Parent Indemnitees hereunder shall not includedexceed an amount (the “Cap”) equal to the amount deposited into the Escrow Account plus up to 15% of any earned but unpaid Earnout Payments (paid exclusively out of such Earnout Payment); (iv) the Basket shall not apply to Losses arising out of (A) the breach of any Company Fundamental Representation, (B) the breach of the representations and warranties contained in Section 3.22 (Tax Matters), (C) fraud or (D) the breach of any covenant of the Company or any Stockholder requiring performance by the Company or any Stockholder; (v) the Cap shall not apply to Losses arising out of (A) the breach of any Company Fundamental Representations, (B) fraud or (C) the breach of any covenant of the Company or any Stockholder requiring performance by the Company or any Stockholder; provided, that the aggregate indemnification of the Parent Indemnitees pursuant to this Agreement with respect to any and all Losses shall not exceed, with respect to any Company Equityholder, the sum of (x) the aggregate cash received by such Company Equityholder pursuant to this Agreement, and (y) the number of Parent Shares issued to such Company Equityholder multiplied by the Parent Trading Price at Delivery of Earnout Statement, Parent Trading Price at Date of Accelerated Payment, Parent Trading Price at Date of Product Approval, Parent Trading Price at Trial Enrollment, or Parent Trading Price at Signing, or other applicable price per Parent Share used by the parties to value such shares at the time of distribution of such shares to such Company Equityholders pursuant to this Agreement; provided, further, however, that no Company Equityholder shall be responsible for any indemnification relating to another Company Equityholder’s (A) breach of any Company Fundamental Representations or (B) fraud; and (vi) notwithstanding anything in this Agreement to the contrary, no Parent Indemnitee shall be entitled to any indemnification, and no Company Equityholder shall have any liability or obligation with respect to any indemnification, for or with respect to any Taxes or other costs that might arise or accrue to Company or any other Person or entity by reason of, or in connection with, any election by or on behalf of Company pursuant to Section 338 of the Code with respect to the consummation of the Mergers or any other transactions contemplated by this Agreement. (c) Notwithstanding anything to the contrary set forth in this Agreement or otherwise, from and after the Closing (but subject to the terms and conditions of this Article 7), any indemnification of the Parent Indemnitees for which the Company Equityholders are liable hereunder shall be effected first, until the Escrow Fund is exhausted, solely and exclusively by a payment made from the Escrow Fund in accordance with the terms of the Escrow Agreement, next, only after the Escrow Fund have been exhausted, by setoff against any payment obligations with respect any Earnout Payment to the extent that such payments are then due and payable, and finally, only after the Escrow Funds have been exhausted and all amounts of indemnifiable Losses have been offset against any Earnout Payments then due and payable, directly against a Company Equityholder, in each such case and for the avoidance of doubt, subject to the Cap and other limitations set forth in this Agreement, except with respect . Any payments to claims based on actual fraud Parent out of the Escrow Account shall consist of Parent Shares (valued at the Parent Trading Price at Signing). (d) The parties hereto acknowledge and agree that the Representative (solely in its capacity as the Representative) is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, the parties hereto acknowledge and agree that other than any liability which any Company Equityholder may have hereunder, Representative shall have no additional liability to, and shall not be liable for any Losses of, any party hereto or to any Parent Indemnitee in connection with any obligations of the Representative under this Agreement (“Fraud”):or the Escrow Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except to the extent such Losses are a result of gross negligence or willful misconduct by the Representative in connection with the performance of its obligations hereunder or under the Escrow Agreement. (ie) no Parent Indemnified Party may recover for any claim for indemnification pursuant to this Article IX unless and until the aggregate amount of indemnifiable Losses that may be recovered by the Parent Indemnified Parties pursuant to this Article IX equals or exceeds $1,750,000 (the “Deductible”), in which event Parent shall only be entitled to indemnification for all indemnifiable Losses in excess of the Deductible (subject to the other limitations herein); and (ii) the maximum aggregate amount of indemnifiable Losses that may be recovered pursuant to Section 7.2 shall take account of and be reduced by (i) any amounts recovered by the Parent Indemnitees or the Surviving Company pursuant to any indemnification by or indemnification agreement with any third party, (ii) any refund, credit or reduction in Tax realized by such Parent Indemnitees or their Affiliates arising from the incurrence or payment of such indemnifiable Losses (based upon the maximum marginal federal, state or local tax rate applicable to such Persons), and (iii) the amount of any insurance proceeds, contribution payments or reimbursements actually received or receivable by the Parent Indemnitees in respect thereof (each Person named and source identified in clauses (i) through (iii), a “Collateral Source”). The Parent Indemnitees shall use commercially reasonable efforts to seek recovery from all Collateral Sources; it being understood that the reasonable costs and expenses of exercising such efforts shall be deemed Losses. If the amount to be netted hereunder from any payment required under Section 7.2 is determined after payment out of the Escrow Fund or the set off of any Earnout Payment of any amount otherwise required to be paid to a Parent Indemnitee under this Article IX 7, the Parent Indemnitees shall be repay to the Indemnity Escrow Amount (Company Equityholders, promptly after such determination, any amount that the “Cap”)Company Equityholders would not have had to pay pursuant to this Section 7.2(e) had such determination been made at the time of such payment. (df) Subject to All payments under this Section 9.2(c)(i), the Parent Indemnified Parties’ recourse for Losses (except with respect to claims based on Fraud) 7.2 shall be (A) firsttreated by the parties as an adjustment to the proceeds received by Preferred Stockholders and Warrant Holders to the extent paid out of the Escrow Fund, and otherwise by Company Equityholders pursuant to Article 1, to the Indemnity Escrow Amount and (B) second, the Parent Indemnified Parties shall be entitled to recover any such remaining Losses from the RWI Policy. After the Indemnity Escrow Amount shall have been depleted or distributed pursuant to the terms of the Escrow Agreement, any such Losses shall be satisfied solely against the RWI Policy, and, except for claims against the Indemnity Escrow Account, the Parent Indemnified Parties shall not directly or indirectly pursue any right, claim or action for indemnification, contribution or recovery against the Stockholders or any of their Affiliates for the recovery of such Losses or otherwise under this Article IXextent permitted by applicable Law.

Indemnification of Parent. (a) Subject to the provisions of this Article IX and the Escrow AgreementThe Company agrees that, from and after the ClosingEffective Time, Parent shall be entitled to be indemnified, held harmless and defended against, any damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, and costs and expenses (collectively, “Losses”) sustained by, incurred by, suffered by or asserted against Parent or any of its Affiliates (including the Surviving Corporation following the Closing) and their respective officers, directors, shareholders, agents, equity holders, agents and representatives and employees (each, each hereinafter referred to individually as a “"Parent Indemnified Party”Person" and collectively as "Parent Indemnified Persons"), shall be indemnified and held harmless from and against, any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred or paid, including reasonable attorneys' fees, costs of investigation or settlement, other professionals' and experts' fees, and court or arbitration costs but specifically excluding consequential damages, lost profits, indirect damages, punitive damages and exemplary damages; provided, that the foregoing exclusion shall not apply to (i) amounts paid to third parties in respect of an indemnifiable claim hereunder or (ii) damages measured based on the difference in value of the Company as represented in this Agreement and the actual value of the Company as a result of any Company Breaches (as hereinafter defined) (hereinafter collectively referred to as "Damages") (but only to the extent relating provided in Section 9.1(c)), to the extent such Damages are determined by a Final Award, a final order of a court of competent jurisdiction or arising as a result agreement of Parent and the Stockholder Representative to have arisen out of or to have resulted from, in connection with, or by virtue of facts or circumstances which constitute an inaccuracy, misrepresentation, breach of: (i) , default in, or failure to perform, any breach of the representations, warranties or inaccuracy of any representation covenants given or warranty made by the Company in this Agreement or in any the certificate delivered pursuant to Section 8.2(c)(i), as qualified by the Schedules hereto as updated from time to time in accordance with the terms of this Agreement, or any Company Transaction Expense to the extent it is not actually reflected in the Company Transaction Expenses used to determine the final Merger Consideration (collectively, "Company Breaches"); provided that if any representation or warranty is qualified in any respect by materiality or reference to Company Material Adverse Effect, for purposes of this paragraph such materiality or Company Material Adverse Effect qualification will in all respects be ignored. For the avoidance of doubt, no Parent Indemnified Person will be entitled to be indemnified pursuant to this Agreement; and Section 9.1 for any liability to the extent (iibut only to the extent) any breach the Stockholder Representative can demonstrate that the amount of any covenant such liability is actually reflected in the Closing Indebtedness, Company Transaction Expenses or agreement made by Closing Working Capital used to determine the Company in this Agreement final Merger Consideration or in any certificate delivered to Parent is provided for pursuant to this AgreementSection 7.12. (b) For purposes of determining whether a representation or warranty Any claim for indemnification made by the Company in this Agreement was breached or inaccurate for purposes of a Parent Indemnified Person under this Section 9.2 and 9.1 must be raised in a writing delivered to the Stockholder Representative by no later than the Release Date and, if raised by such date, such claim shall survive the Release Date until final resolution thereof; provided that a Parent Indemnified Party may bring a claim for calculating indemnification under this Section 9.1 after the amount of Losses resulting from such breach or inaccuracy, any qualification as to materiality, “Material Adverse Effect” or words of like meaning included in any applicable representation and warranty in this Agreement shall be disregarded as Release Date if such qualification was not includedclaim is based solely on a Company Breach of the representations and warranties set forth in the first sentence of Section 3.1(a), Section 3.4 or Section 3.19 (collectively, the "Excluded Representations"). (c) Notwithstanding anything The aggregate liability on account of Company Breaches pursuant to Section 9.1 or otherwise shall be limited to the contrary Post-Closing Escrow Fund and claims for Damages, whether under this Article IX or otherwise, shall be satisfied solely from and to the extent of funds on deposit in this Agreementthe Post-Closing Escrow Fund, except with respect to claims based on actual fraud in connection with this Agreement (“Fraud”): the case of Damages arising solely from (i) no a Company Breach of an Excluded Representation, in which case the Parent Indemnified Party may recover for any claim for indemnification Persons shall be entitled to seek amounts in excess of the Post-Closing Escrow Fund from the Junior Stockholders pursuant to the Selling Stockholders Agreement or (ii) fraud on the part of any Junior Stockholder, in which case the Parent Indemnified Persons shall be entitled to seek amounts in excess of the Post-Closing Escrow Fund from such Junior Stockholder pursuant to the Selling Stockholders Agreement. Notwithstanding the foregoing provisions of this Article IX Section 9.1, the indemnification provided for in this Section 9.1 shall not apply unless and until the aggregate amount of indemnifiable Losses that may Damages so determined to be recovered by the due for which one or more Parent Indemnified Parties pursuant to this Article IX equals Persons seeks or has sought indemnification hereunder exceeds a cumulative aggregate of $1,750,000 4,000,000 (the “Deductible”"Basket"), in which event Parent shall only be entitled to indemnification for all indemnifiable Losses in excess of the Deductible (Indemnified Persons shall, subject to the other limitations herein), be indemnified for all such Damages in excess of the Basket; andprovided, that the Basket shall not apply to a breach of the Excluded Representations or a breach of any covenant of the Company set forth in this Agreement. (iid) the maximum aggregate The amount of indemnifiable Losses that to which a Parent Indemnified Person may be recovered pursuant to become entitled under this Article IX shall be net of (i) any actual recovery (whether by way of payment, discount, credit, off-set, counterclaim or otherwise) received from a third party (including any insurer) less any cost associated with receiving such recovery in respect of a claim and (ii) any amount that would have been recoverable pursuant to an insurance policy maintained by the Indemnity Company or a Company Subsidiary as of the date of this Agreement, had such policy been in effect for the applicable period after the Closing. To the extent that insurance, "pass-through" warranty coverage from a manufacturer or other form of recovery or reimbursement from a third party is available to any Parent Indemnified Person to cover any item for which indemnification may be sought hereunder, the Parent will, or will cause the Parent Indemnified Person to, on a timely and expeditious basis, use commercially reasonable efforts to effect recovery under applicable insurance policies and warranties and otherwise pursue to conclusion available remedies or causes of action to recover the amount of its claim as may be available from such other party; provided the availability of a potential recovery against such a third party shall not affect Parent's right to make a claim against the Post-Closing Escrow Amount Account pursuant to this Section 9.1. To the extent any Parent Indemnified Person is indemnified and paid the full amount of any claim out of the Post-Closing Escrow Account on any claim referred to in the previous sentence, the Parent will assign, and the Parent will cause the Parent Indemnified Person to assign, to the Stockholder Representative, to the fullest extent allowable, its claim against such insurance, warranty coverage or third-party claim, or in the event assignment is not permissible, but Parent or the Parent Indemnified Person in question is nonetheless permitted to pursue such claim on the Stockholder Representative's or the Junior Stockholders' behalf, the Parent shall pursue, or shall cause the Parent Indemnified Person to pursue, such claim, at the Stockholder Representative's direction and expense and without additional out-of-pocket expense to any Parent Indemnified Person, with any recovery thereon to be transmitted promptly to the Post-Closing Escrow Account (or if after the “Cap”)Release Date, to the Stockholder Representative for distribution to the Junior Stockholders) upon receipt. To the extent that any Parent Indemnified Person has not been indemnified out of the Post-Closing Escrow Fund on account of any such claim, any Parent Indemnified Person may pursue recovery against such insurance warranty coverage or third party and will be entitled to retain all recoveries made as a result of any such action. The Stockholder Representative shall have the right, at mutually agreeable times during normal business hours, after reasonable notice (which may be oral) to Parent and without undue disruption to their normal business activities, to inspect the assets and properties of Parent and the Surviving Corporation and its Subsidiaries and to inspect and make abstracts and reproductions of all books and records of Parent and the Surviving Corporation and its Subsidiaries relating to any such claims. Parent shall, and shall cause the Surviving Corporation to furnish the Stockholder Representative with such information respecting the assets, business and financial records of Parent and the Surviving Corporation and its Subsidiaries relating to any such claims as the Stockholder Representative may, from time to time, reasonably request and at the sole cost and expense of the Stockholder Representative. (de) Subject to Section 9.2(c)(i), the Each Parent Indemnified Parties’ recourse for Losses (except with respect to claims based on Fraud) Party shall be (A) first, responsible for taking or causing to the Indemnity Escrow Amount be taken all reasonable steps to mitigate its Damages upon and (B) second, the Parent Indemnified Parties shall after becoming aware of any event that could reasonably be entitled expected to recover any such remaining Losses from the RWI Policy. After the Indemnity Escrow Amount shall have been depleted or distributed pursuant give rise to the terms of the Escrow Agreement, any such Losses shall Damages that may be satisfied solely against the RWI Policy, and, except for claims against the Indemnity Escrow Account, the Parent Indemnified Parties shall not directly or indirectly pursue any right, claim or action for indemnification, contribution or recovery against the Stockholders or any of their Affiliates for the recovery of such Losses or otherwise indemnifiable under this Article IX.

Indemnification of Parent. (a) Subject From and after and by virtue of the Merger, subject to the provisions terms of this Article IX VIII, the Company Members agree to severally, but not jointly, indemnify and the Escrow Agreement, from hold harmless Parent and after the Closing, Parent shall be entitled to be indemnified, held harmless and defended against, any damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, and costs and expenses (collectively, “Losses”) sustained by, incurred by, suffered by or asserted against Parent or any of its Affiliates (including the Surviving Corporation following the Closing) and their respective officers, directors, shareholdersaffiliates, agentsemployees, equity holdersagents and representatives, representatives and employees including the Surviving Company (each, a “Parent Indemnified Party” and collectively, the “Parent Indemnified Parties”) ), from and against all out-of-pocket losses from liabilities, damages, deficiencies, Taxes, costs, interest, awards, judgments, and expenses, including reasonable attorneys’ and consultants’ fees and expenses and including any such reasonable expenses paid in connection with investigating, defending against or settling any of the foregoing, but excluding diminution in value or punitive damages, except for any punitive damages actually paid to a third party in respect of a Third Party Claim or with respect to a claim of fraud to the extent relating actually awarded by an arbitrator or court of competent jurisdiction and actually paid to a Governmental Authority or other third party (hereinafter individually a “Loss” and collectively “Losses”) paid by the Parent Indemnified Parties, or any of them (including the Surviving Company) (regardless of whether or not such Losses relate to any third party claims), directly or indirectly, resulting from, or arising as a result ofout of any of the following: (i) any breach of or inaccuracy in, as of any the date hereof, a representation or warranty made by of the Company set forth in this Agreement Agreement, without giving effect to any qualifications based on the word “material” or in any certificate delivered to Parent pursuant to this Agreementsimilar phrases (including “Material Adverse Effect”) limiting the scope of such representation or warranty; and (ii) any breach of any covenant or agreement made failure by the Company to perform or comply with any of its covenants or agreements set forth in this Agreement or in any certificate delivered to Parent pursuant to this Agreement. (b) For Any payments made to a Parent Indemnified Party pursuant to any indemnification obligations under this Article VIII will be treated as adjustments to the Merger Consideration for Tax purposes of determining whether a representation or warranty made by the Company in this Agreement was breached or inaccurate and such agreed treatment will govern for purposes of this Section 9.2 and for calculating the amount of Losses resulting from such breach or inaccuracy, any qualification as to materiality, “Material Adverse Effect” or words of like meaning included in any applicable representation and warranty in this Agreement shall be disregarded as if such qualification was not included. (c) Notwithstanding anything to the contrary in this Agreement, except with respect to claims based on actual fraud in connection with this Agreement (“Fraud”): (i) no Parent Indemnified Party may recover for any claim for indemnification pursuant to this Article IX unless and until the aggregate amount of indemnifiable Losses that may be recovered otherwise required by the Parent Indemnified Parties pursuant to this Article IX equals or exceeds $1,750,000 (the “Deductible”), in which event Parent shall only be entitled to indemnification for all indemnifiable Losses in excess of the Deductible (subject to the other limitations herein); and (ii) the maximum aggregate amount of indemnifiable Losses that may be recovered pursuant to this Article IX shall be the Indemnity Escrow Amount (the “Cap”)applicable Legal Requirements. (d) Subject to Section 9.2(c)(i), the Parent Indemnified Parties’ recourse for Losses (except with respect to claims based on Fraud) shall be (A) first, to the Indemnity Escrow Amount and (B) second, the Parent Indemnified Parties shall be entitled to recover any such remaining Losses from the RWI Policy. After the Indemnity Escrow Amount shall have been depleted or distributed pursuant to the terms of the Escrow Agreement, any such Losses shall be satisfied solely against the RWI Policy, and, except for claims against the Indemnity Escrow Account, the Parent Indemnified Parties shall not directly or indirectly pursue any right, claim or action for indemnification, contribution or recovery against the Stockholders or any of their Affiliates for the recovery of such Losses or otherwise under this Article IX.

Indemnification of Parent. (a) Subject From and after the Closing (but subject to the provisions terms and conditions of this Article IX 7), each Preferred Stockholder shall, severally but not jointly, indemnify and hold the Escrow Agreement, Parent Indemnitees (as defined below) harmless from and after the Closing, Parent shall be entitled to be indemnified, held harmless against such Preferred Stockholder’s Proportionate Share of any and defended against, any damages, all losses, charges, liabilities, claims, demandssuits, actions, suitsobligations, proceedingsdeficiencies, paymentsdemands, awards, judgments, settlements, assessments, deficiencies, taxesdamages, interest, fines, penalties, and costs and expenses (collectivelyincluding reasonable costs of investigation and defense and reasonable attorneys’ and other professionals’ reasonable fees and expenses) whether or not involving a Third Party Claim, but specifically excluding consequential, special, incidental, indirect, exemplary or punitive damages (including diminution of value, loss of future revenue, lost profits or lost business opportunity as consequential or indirect damages) except to the extent actually awarded in a Third Party Claim (hereinafter individually a “Loss” and collectively “Losses”) sustained bysuffered or incurred by Parent, incurred by, suffered by or asserted against Parent its Affiliates or any of its Affiliates (including the Surviving Corporation following the Closing) and their respective officers, directors, shareholdersmanagers, employees, stockholders, members, partners, agents, equity holders, representatives or successors and employees assigns (each, a the “Parent Indemnified PartyIndemnitees”) to the extent relating to attributable to, or arising as a result ofor resulting from: (i) any breach or inaccuracy of any representation or warranty made by the of Company contained in this Agreement or in any certificate delivered to Parent pursuant to Article 3 of this Agreement; and, (ii) any breach of any covenant or agreement of Company contained in this Agreement; (iii) any proceeding in respect of any Dissenting Shares and any payments required to be made by Parent or the Surviving Company to any Person that was a holder of Company Stock immediately prior to the Effective Time in this Agreement or in any certificate delivered respect of such Person’s Dissenting Shares, to Parent the extent that such payments exceed the portion of the final aggregate merger consideration to which such Person would have been entitled pursuant to this AgreementAgreement in respect of such Dissenting Shares if such Person had not exercised appraisal or dissenting rights in respect thereof; and (iv) any Stockholder Transaction Expenses or Indebtedness that were not taken into account in the determination of the Aggregate Merger Consideration. (b) For purposes of determining whether a representation or warranty made by Notwithstanding anything to the Company contrary set forth in this Agreement was breached or inaccurate for purposes of this Section 9.2 and for calculating the amount of Losses resulting from such breach or inaccuracyAgreement, any qualification as each Parent Indemnitee’s right to materiality, “Material Adverse Effect” or words of like meaning included in any applicable representation and warranty in recover a Loss pursuant to this Agreement shall be disregarded limited as if follows: (i) no Parent Indemnitee shall be entitled to any indemnification under Section 7.2(a)(i) for any individual item unless the Loss relating to such qualification was claim, (or series of claims arising from the same or substantially similar facts or circumstances) is more than $25,000; (ii) subject to Section 7.2(b)(iv), no Parent Indemnitee shall be entitled to any indemnification hereunder unless the aggregate of all Losses relating to all breaches of such representations, warranties and covenants would exceed on a cumulative basis an amount equal to $250,000 (the “Basket”), in which case Parent Indemnitees shall be entitled to see compensation for all such Losses in excess of the Basket; (iii) subject to Section 7.2(b)(v), the aggregate indemnification of the Parent Indemnitees hereunder shall not includedexceed an amount (the “Cap”) equal to the amount deposited into the Escrow Account plus up to twenty percent (20%) of any earned but unpaid 2014 Earnout Amount, 2015 Earnout Amount or Change of Control Payment (collectively, the “Earnout Payments”); (iv) the Basket shall not apply to Losses arising out of (A) the breach of any Company Fundamental Representation, (B) the breach of the representations and warranties contained in Section 3.22 (Tax Matters) or (C) fraud; and (v) the Cap shall not apply to Losses arising out of (A) the breach of any Company Fundamental Representations or (B) fraud; provided that the aggregate indemnification of the Parent Indemnitees with respect to the breach of any Company Fundamental Representations shall not exceed, with respect to any Preferred Stockholder, the sum of (x) the aggregate cash received by such Preferred Stockholder pursuant to this Agreement, and (y) the number of Parent Shares issued to such Preferred Stockholder multiplied by the Parent Trading Price at Delivery of Earnout Statement or Parent Trading Price at Signing, as applicable, pursuant to this Agreement. (c) Notwithstanding anything to the contrary set forth in this Agreement or otherwise, from and after the Closing (but subject to the terms and conditions of this Article 7), any indemnification of the Parent Indemnitees for which the Stockholders are liable hereunder shall be effected (i) first, until the Escrow Funds are exhausted, solely and exclusively by a payment made from the Escrow Funds in accordance with the terms of the Escrow Agreement and this Agreement, except and (ii) second, by setoff against the payment obligations with respect to claims based on actual fraud any Earnout Payment then due and payable, subject to the limitations set forth in Section 7.2(b)(iii). (d) The parties hereto acknowledge and agree that the Representative (solely in its capacity as the Representative) is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, the parties hereto acknowledge and agree that other than any liability which any Stockholder may have hereunder, Representative shall have no additional liability to, and shall not be liable for any Losses of, any party hereto or to any Parent Indemnitee in connection with any obligations of the Representative under this Agreement (“Fraud”):or the Escrow Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except to the extent such Losses are a result of gross negligence or willful misconduct by the Representative in connection with the performance of its obligations hereunder or under the Escrow Agreement. (ie) no Parent Indemnified Party may recover for any claim for indemnification pursuant to this Article IX unless and until the aggregate amount of indemnifiable Losses that may be recovered by the Parent Indemnified Parties pursuant to this Article IX equals or exceeds $1,750,000 (the “Deductible”), in which event Parent shall only be entitled to indemnification for all indemnifiable Losses in excess of the Deductible (subject to the other limitations herein); and (ii) the maximum aggregate amount of indemnifiable Losses that may be recovered pursuant to Section 7.2 shall take account of and be reduced by (i) any amounts recovered by the Parent Indemnitees or the Surviving Company pursuant to any indemnification by or indemnification agreement with any third party and (ii) the amount of any insurance proceeds, contribution payments or reimbursements actually received or receivable by the Parent Indemnitees in respect thereof (each Person named and source identified in clauses (i) and (ii), a “Collateral Source”). The Parent Indemnitees shall use commercially reasonable efforts to seek recovery from all Collateral Sources; it being understood that the reasonable costs and expenses of exercising such efforts shall be deemed Losses. If the amount to be netted hereunder from any payment required under Section 7.2 is determined after payment out of the Escrow Fund or the set off of any of the 2014 Earnout Amount or the 2015 Earnout Amount of any amount otherwise required to be paid to an Parent Indemnitee under this Article IX 7, the Parent Indemnitees shall be repay to the Indemnity Escrow Amount (Preferred Stockholders, promptly after such determination, any amount that the “Cap”)Preferred Stockholders would not have had to pay pursuant to this Section 7.2(e) had such determination been made at the time of such payment. (df) Subject to All payments under this Section 9.2(c)(i), the Parent Indemnified Parties’ recourse for Losses (except with respect to claims based on Fraud) 7.2 shall be (A) firsttreated by the parties as an adjustment to the proceeds received by Stockholders pursuant to Article 1, to the Indemnity Escrow Amount and (B) second, the Parent Indemnified Parties shall be entitled to recover any such remaining Losses from the RWI Policy. After the Indemnity Escrow Amount shall have been depleted or distributed pursuant to the terms of the Escrow Agreement, any such Losses shall be satisfied solely against the RWI Policy, and, except for claims against the Indemnity Escrow Account, the Parent Indemnified Parties shall not directly or indirectly pursue any right, claim or action for indemnification, contribution or recovery against the Stockholders or any of their Affiliates for the recovery of such Losses or otherwise under this Article IXextent permitted by applicable Law.

Indemnification of Parent. (a) Subject From and after and by virtue of the Merger, subject to the provisions terms of this Article IX V, the Company Holders agree to severally, but not jointly, indemnify and the Escrow Agreementhold harmless Parent and its officers, from directors, affiliates, employees, agents and after the Closingrepresentatives, Parent shall be entitled to be indemnified, held harmless and defended against, any damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, and costs and expenses (collectively, “Losses”) sustained by, incurred by, suffered by or asserted against Parent or any of its Affiliates (including the Surviving Corporation following the Closing) and their respective officers, directors, shareholders, agents, equity holders, representatives and employees (each, a “Parent Indemnified Party” and collectively, the “Parent Indemnified Parties”) ), from and against all out-of-pocket losses from liabilities, damages, deficiencies, Taxes, costs, interest, awards, judgments, and expenses, including reasonable attorneys’ and consultants’ fees and expenses and including any such reasonable expenses paid in connection with investigating, defending against or settling any of the foregoing, but excluding diminution in value or punitive damages, except for any punitive damages actually paid to a third party in respect of a Third Party Claim or with respect to a claim of fraud to the extent relating actually awarded by an arbitrator or court of competent jurisdiction and actually paid to a Governmental Entity or other third party (hereinafter individually a “Loss” and collectively “Losses”) paid by the Parent Indemnified Parties, or any of them (including the Surviving Corporation) (regardless of whether or not such Losses relate to any third party claims), directly or indirectly, resulting from, or arising as a result ofout of any of the following: (i) any breach of or inaccuracy in, as of any the date hereof, a representation or warranty made by of the Company set forth in this Agreement Agreement, without giving effect to any qualifications based on the word “material” or in any certificate delivered to Parent pursuant to this Agreement; andsimilar phrases (including “Company Material Adverse Effect”) limiting the scope of such representation or warranty; (ii) any breach of any covenant or agreement made failure by the Company to perform or comply with any of its covenants or agreements set forth in this Agreement Agreement; (iii) the matters set forth on Exhibit E; (iv) any payment in respect of any Dissenting Shares in excess of the consideration that otherwise would have been payable in respect of such shares in accordance with this Agreement, and any other Losses paid in respect of any Dissenting Shares, including all attorneys’ and consultants’ fees, costs and expenses and including any such fees, costs and expenses paid in connection with investigating, defending against or settling any action or proceeding in respect of Dissenting Shares; and (v) any certificate delivered inaccuracy or omission in the Spreadsheet, including any amounts set forth therein that are paid to Parent a Person in excess of the amounts that such Person is entitled to receive pursuant to the terms of this AgreementAgreement and any amounts that a Person was entitled to receive pursuant to the terms of this Agreement that were omitted from the Spreadsheet. (b) For Any payments made to a Parent Indemnified Party pursuant to any indemnification obligations under this Article V will be treated as adjustments to the Merger Consideration for Tax purposes of determining whether a representation or warranty made by the Company in this Agreement was breached or inaccurate and such agreed treatment will govern for purposes of this Section 9.2 and for calculating the amount of Losses resulting from such breach or inaccuracy, any qualification as to materiality, “Material Adverse Effect” or words of like meaning included in any applicable representation and warranty in this Agreement shall be disregarded as if such qualification was not included. (c) Notwithstanding anything to the contrary in this Agreement, except with respect to claims based on actual fraud in connection with this Agreement (“Fraud”): (i) no Parent Indemnified Party may recover for any claim for indemnification pursuant to this Article IX unless and until the aggregate amount of indemnifiable Losses that may be recovered otherwise required by the Parent Indemnified Parties pursuant to this Article IX equals or exceeds $1,750,000 (the “Deductible”), in which event Parent shall only be entitled to indemnification for all indemnifiable Losses in excess of the Deductible (subject to the other limitations herein); and (ii) the maximum aggregate amount of indemnifiable Losses that may be recovered pursuant to this Article IX shall be the Indemnity Escrow Amount (the “Cap”)applicable Legal Requirements. (d) Subject to Section 9.2(c)(i), the Parent Indemnified Parties’ recourse for Losses (except with respect to claims based on Fraud) shall be (A) first, to the Indemnity Escrow Amount and (B) second, the Parent Indemnified Parties shall be entitled to recover any such remaining Losses from the RWI Policy. After the Indemnity Escrow Amount shall have been depleted or distributed pursuant to the terms of the Escrow Agreement, any such Losses shall be satisfied solely against the RWI Policy, and, except for claims against the Indemnity Escrow Account, the Parent Indemnified Parties shall not directly or indirectly pursue any right, claim or action for indemnification, contribution or recovery against the Stockholders or any of their Affiliates for the recovery of such Losses or otherwise under this Article IX.

Indemnification of Parent. (a) Subject to the provisions of this Article IX Section 4.5, the Company will indemnify and hold the Parent and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Parent (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the Escrow Agreementdirectors, from and after the Closing, Parent shall be entitled to be indemnified, held harmless and defended against, any damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, and costs and expenses (collectively, “Losses”) sustained by, incurred by, suffered by or asserted against Parent or any of its Affiliates (including the Surviving Corporation following the Closing) and their respective officers, directors, shareholders, agents, equity holdersmembers, representatives partners or employees (and employees any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling Person (each, a an “Parent Indemnified Party”) to harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any the extent relating to Indemnified Parties may suffer or arising incur as a result of: (i) of or relating to any breach or inaccuracy of any representation of the representations, warranties, covenants or warranty agreements made by the Company in this Agreement or Agreement. If any action shall be brought against any Indemnified Party in any certificate delivered to Parent respect of which indemnity may be sought pursuant to this Agreement; and , the Indemnified Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Indemnified Party. Any Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Parent except to the extent that (iii) any breach of any covenant or agreement made the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, (x) a material conflict on any material issue between the position of the Company and the position of the Indemnified Party or (y) that there may be legal defenses available to such Indemnified Party different from or in addition to those available to the other party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Indemnified Party under this Agreement for any settlement by an Indemnified Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or in any certificate delivered to Parent pursuant to this Agreementdelayed. (b) For purposes The Company shall have liability under Section 4.5 hereof only if within the applicable survival period specified in Section 5.1 hereof, an Indemnified Party notifies the Company of determining whether a representation or warranty made claim as provided in Section 4.5(a), specifying the factual basis of the claim in reasonable detail to the extent known by the Company in this Agreement was breached or inaccurate for purposes of this Section 9.2 and for calculating the amount of Losses resulting from such breach or inaccuracy, any qualification as to materiality, “Material Adverse Effect” or words of like meaning included in any applicable representation and warranty in this Agreement shall be disregarded as if such qualification was not includedIndemnified Party. (c) Notwithstanding anything to the contrary in this Agreement, except with respect to claims based on actual fraud in connection with this Agreement (“Fraud”): (i) no Parent Indemnified Party may recover for any claim for indemnification pursuant to this Article IX unless and until the aggregate amount of indemnifiable Losses that may be recovered by the Parent Indemnified Parties pursuant to this Article IX equals or exceeds $1,750,000 (the “Deductible”), in which event Parent shall only be entitled to indemnification for all indemnifiable Losses in excess of the Deductible (subject to the other limitations herein); and (ii) the maximum aggregate amount of indemnifiable Losses that may be recovered pursuant to this Article IX shall be the Indemnity Escrow Amount (the “Cap”). (d) Subject to Section 9.2(c)(i), the Parent Indemnified Parties’ recourse for Losses (except with respect to claims based on Fraud) shall be (A) first, to the Indemnity Escrow Amount and (B) second, the Parent Indemnified Parties shall be entitled to recover any such remaining Losses from the RWI Policy. After the Indemnity Escrow Amount shall have been depleted or distributed pursuant to the terms of the Escrow Agreement, any such Losses shall be satisfied solely against the RWI Policy, and, except for claims against the Indemnity Escrow Account, the Parent Indemnified Parties shall not directly or indirectly pursue any right, claim or action for indemnification, contribution or recovery against the Stockholders or any of their Affiliates for the recovery of such Losses or otherwise under this Article IX.