Common use of Indemnification of Parent Clause in Contracts

Indemnification of Parent. From and after the Effective Time and subject to the limitations contained in this Article XI, the Former Company Stockholders will indemnify, on a several (and not joint) basis, Parent, Merger Sub, the Surviving Corporation and their respective officers, directors, employees and Affiliates (collectively, the “Parent Indemnified Parties”) and hold the Parent Indemnified Parties harmless against any loss, expense, liability or other damage, including court costs and attorneys’ fees, to the extent of the actual amount of such loss, expense, liability or other damage (without regard to the use of any multiplier) (collectively “Damages”) that the Parent Indemnified Parties have incurred by reason of (i) the inaccuracy or breach by the Company of any representation or warranty of the Company contained in this Agreement or in the certificate delivered pursuant to Section 9.2(a) or 9.2(b) of this Agreement (in each case, as such representation or warranty would read if all qualifications as to materiality, including each reference to the defined term “Company Material Adverse Effect,” were deleted therefrom), and (ii) any of the matters set forth on Schedule 4.16 of the Company Disclosure Schedules. All such calculations of Damages shall take into account any offset benefits or insurance proceeds received in connection with the matter out of which such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refund, credit or actual reduction in Taxes realized by the Parent Indemnified Parties as a result of such Damages (including any such Tax benefit realized in the taxable period in which such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, any claim for Damages to the extent set forth in Section 2 of the letter dated as of the date hereof, between the Company and Parent (Re: Indemnification Matters) (the “Indemnification Matters Letter”). Notwithstanding anything herein to the contrary, (a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (b) a breach of a representation or warranty shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent Indemnified Parties shall be entitled to receive in satisfaction of claims for indemnification pursuant to this Section 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification for Damages to the extent that the items giving rise to such Damages had been accounted for in any of the adjustments to the Merger Consideration pursuant to Sections 3.3(f), (g) and (h); (e) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the aggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the aggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible; and (f) the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above with respect to any of the matters set forth on Schedule 11.1 attached hereto. In no event shall the Former Company Stockholders be liable for any punitive, special or exemplary damages except to the extent actually payable by a Parent Indemnified Party to a third party.

Indemnification of Parent. From and after the Effective Time and subject to the limitations contained in this Article XIClosing, the Former Company Stockholders will indemnifyShareholders and the Optionees shall indemnify and hold harmless Parent and its affiliates, on a several (successors and not joint) basisassigns, Parent, Merger Sub, and the Surviving Corporation and their respective officers, directors, managers, employees and Affiliates (collectivelyagents of each of the foregoing, the “Parent Indemnified Parties”) from and hold the Parent Indemnified Parties harmless against any lossand all Damages actually incurred thereby or caused thereto based on, expensearising out of, liability or resulting from, or alleged by a third party to be based on or to have arisen out of or resulted from: (a) any breach of any of the representations or warranties made by Barrier in this Agreement or any exhibit, schedule, certificate, instrument, or other damagedocument pursuant to this Agreement (without giving effect to any materiality or Material Adverse Effect qualifier therein or any supplement to the Barrier Disclosure Schedule); (b) any breach or violation of, including court costs or failure to fully perform, any covenant, agreement or obligation of Barrier in this Agreement or any exhibit, schedule, certificate, instrument, or other document pursuant to this Agreement; (c) failure to pay any Transaction Costs as and attorneys’ feeswhen due; (d) any Liabilities for Taxes relating to taxable periods of the Companies ending on or before the Closing Date, and with respect to taxable periods beginning before the Closing Date and ending after the Closing Date, for Taxes imposed on the Companies which are allocable to the portion of such period ending on the Closing Date (including, without limitation, Liabilities disclosed in Section 4.1(h) of the Barrier Disclosure Schedule), but only to the extent any such Liabilities for Taxes are in excess of any reserves or accruals established with respect thereto on the face of the actual amount Final Closing Balance Sheet; (e) any Liabilities related to, arising out of or associated with the QMB Sale, the Canadian Companies, QMB Payment Co. or operation of the Canadian Companies and QMB Payment Co. prior to, on and after the Closing Date; (f) any Liabilities related to, arising out of or associated with grants or attempts to grant options to purchase capital stock of Barrier without due authority or otherwise not in compliance with Barrier's Articles of Incorporation or Bylaws or applicable Law, including, without limitation, any claims by the recipients or intended recipients of such lossoptions; (g) any Liabilities related to, expensearising out of or associated with deferred compensation arrangements between Barrier and Xxxxxx Xxxxxx and any payments by Barrier pursuant thereto; (h) any Liabilities related to, liability arising out of or other damage (without regard to the use of any multiplier) (collectively “Damages”) associated with that the Parent Indemnified Parties have incurred certain lease, dated December 29, 1937, by reason of and between California Packing Corporation, as lessor, and Amerada Petroleum Corporation, as lessee; and (i) any Liabilities related to, arising out of or associated with failures to file notices under Section 25102(0 of the inaccuracy or breach California Corporations Code, if any, in connection with the issuance of capital stock of either Company. Notwithstanding the foregoing, (x) no indemnification shall be payable by the Company Shareholders under clause (a) of this Section 8.2 (except with respect to any breach of any representation or warranty in Section 4.1(j) or 4.1(s)) until the total of all such claims for indemnification exceed $100,000 (the "Threshold"), in which event Parent shall only be entitled to recover the Damages in excess of the Company contained in Threshold, (y) the aggregate liability for indemnification obligations payable under this Agreement or in Section 8.2 shall not exceed the certificate delivered pursuant Holdback Amount and shall be payable solely out of the Indemnity Escrow Account, and (z) no indemnification shall be payable by the Shareholders with respect to Section 9.2(a) or 9.2(bany claim under clause (a) of this Agreement (in each case, as the Section 8.2 unless the Shareholder Representative is notified of such claim prior to the expiration of the applicable representation or warranty would read if all qualifications as to materiality, including each reference to in accordance with Section 8.1. As security for the defined term “Company Material Adverse Effect,” were deleted therefrom), and (ii) any of the matters set forth on Schedule 4.16 of the Company Disclosure Schedules. All such calculations of Damages shall take into account any offset benefits or insurance proceeds received in connection with the matter out of which such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refund, credit or actual reduction in Taxes realized performance by the Parent Indemnified Parties as a result Shareholders of such Damages (including any such Tax benefit realized in their indemnification obligations under this Section 8.2, the taxable period in which such Damages were incurred or a taxable period beginning after Holdback Amount shall be deposited into the tax period in which such Damages were incurred); provided, that any benefit referred Indemnity Escrow Account to above that occurs after the Parent Indemnified Parties have recovered Damages be held and distributed in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, any claim for Damages to the extent set forth in Section 2 of the letter dated as of the date hereof, between the Company and Parent (Re: Indemnification Matters) (the “Indemnification Matters Letter”). Notwithstanding anything herein to the contrary, (a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (b) a breach of a representation or warranty shall not be deemed to have occurred Agreement and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent Indemnified Parties shall be entitled to receive in satisfaction of claims for indemnification pursuant to this Section 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification for Damages to the extent that the items giving rise to such Damages had been accounted for in any of the adjustments to the Merger Consideration pursuant to Sections 3.3(f), (g) and (h); (e) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the aggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the aggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible; and (f) the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above with respect to any of the matters set forth on Schedule 11.1 attached hereto. In no event shall the Former Company Stockholders be liable for any punitive, special or exemplary damages except to the extent actually payable by a Parent Indemnified Party to a third partyEscrow Agreement.

Indemnification of Parent. From and (a) The Company agrees that, after the Effective Time Time, Parent and subject to the limitations contained in this Article XI, the Former Company Stockholders will indemnify, on a several (and not joint) basis, Parent, Merger Sub, the Surviving Corporation and their respective officers, directors, employees agents and Affiliates representatives (collectively, the “each hereinafter referred to individually as a "Parent Indemnified Parties”) Person" and hold the collectively as "Parent Indemnified Parties Persons"), shall be indemnified and held harmless against from and against, any lossand all claims, expensedemands, liability suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred or other damagepaid, 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 attorneys’ feesexemplary 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 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 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, default in, or failure to perform, any of the actual amount of such lossrepresentations, expense, liability warranties or other damage (without regard to the use of any multiplier) (collectively “Damages”) that the Parent Indemnified Parties have incurred by reason of (i) the inaccuracy covenants given or breach made by the Company of any representation or warranty of the Company contained in this Agreement or in the certificate delivered pursuant to Section 9.2(a) or 9.2(b) 8.2(c)(i), as qualified by the Schedules hereto as updated from time to time in accordance with the terms of this Agreement 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 (in each casecollectively, as such "Company Breaches"); provided that if any representation or warranty would read if all qualifications as to materiality, including each is qualified in any respect by materiality or reference to the defined term “Company Material Adverse Effect,” were deleted therefrom), and (ii) any for purposes of this paragraph such materiality or Company Material Adverse Effect qualification will in all respects be ignored. For the matters set forth on Schedule 4.16 avoidance of the Company Disclosure Schedules. All such calculations of Damages shall take into account any offset benefits or insurance proceeds received in connection with the matter out of which such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refunddoubt, credit or actual reduction in Taxes realized by the no Parent Indemnified Parties as a result of such Damages (including any such Tax benefit realized in the taxable period in which such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, any claim for Damages to the extent set forth in Section 2 of the letter dated as of the date hereof, between the Company and Parent (Re: Indemnification Matters) (the “Indemnification Matters Letter”). Notwithstanding anything herein to the contrary, (a) the Parent Indemnified Parties shall not Person will be entitled to seek indemnification with respect to any Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (b) a breach of a representation or warranty shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent Indemnified Parties shall be entitled to receive in satisfaction of claims for indemnification indemnified pursuant to this Section 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification 9.1 for Damages any liability to the extent (but only to the extent) the Stockholder Representative can demonstrate that the items giving rise amount of such liability is actually reflected in the Closing Indebtedness, Company Transaction Expenses or Closing Working Capital used to such Damages had been accounted for in any of determine the adjustments to the final Merger Consideration or is provided for pursuant to Sections 3.3(f), (g) and (h); (e) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the aggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the aggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible; and (f) the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above with respect to any of the matters set forth on Schedule 11.1 attached hereto. In no event shall the Former Company Stockholders be liable for any punitive, special or exemplary damages except to the extent actually payable by a Parent Indemnified Party to a third party7.12.

Indemnification of Parent. From Subject to Section 7.5, the Share Recipients (other than those holders of Eligible Dissenting Shares), by reason of the approval by the Company’s stockholders of the Merger and after each Share Recipient’s acceptance of the Effective Time consideration provided for in Section 1.4 hereof and subject by the execution of the Escrow Agreement which is a condition to receiving such consideration shall, severally but not jointly (it being understood that with respect to the limitations contained in this Article XIShare Recipients, the Former Company Stockholders will term “severally” means that each Share Recipient’s total indemnification obligation shall be limited to such Share Recipient’s pro rata share of the indemnification obligations of the Share Recipients, with the understanding that such pro rata share shall be based upon the respective amount of consideration payable to such Share Recipient under Section 1.4 hereof), agree to defend, indemnify, on a several (and not joint) basis, Parent, Merger Sub, the Surviving Corporation and their respective officers, directors, employees and Affiliates (collectively, the “Parent Indemnified Parties”) and hold the Parent Indemnified Parties harmless against from and against, and to reimburse Parent with respect to, any lossand all losses, expensedamages, liability or other damageliabilities, claims, judgments, settlements, fines, costs, and expenses (including court costs and reasonable attorneys’ fees, to the extent of the actual amount of such loss, expense, liability or other damage (without regard to the use of any multiplier) (collectively “DamagesIndemnifiable Amounts”) that the of every nature whatsoever incurred by Parent Indemnified Parties have incurred by reason of or arising out of or in connection with (i) the inaccuracy any breach, or breach any claim (including claims by the parties other than Parent) that if true, would constitute a breach, by Company or any Share Recipient of any representation or warranty of the Company made by it contained in this Agreement (as modified or supplemented by the Company Disclosure Schedule) or in the any certificate or other document delivered to Parent pursuant to Section 9.2(a) or 9.2(b) the provisions of this Agreement (in each caseAgreement, as such representation or warranty would read if all qualifications as to materiality, including each reference to the defined term “Company Material Adverse Effect,” were deleted therefrom), and (ii) the failure, partial or total, of Company or any Share Recipient to perform any agreement or covenant required or contemplated by this Agreement to be performed by it, or (iii) any payments made by Parent in respect of any Eligible Dissenting Shares in excess of the matters set forth on Schedule 4.16 of the Company Disclosure Schedules. All such calculations of Damages shall take into account any offset benefits or insurance proceeds received Merger Consideration that otherwise would have been payable in connection with the matter out of which such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refund, credit or actual reduction in Taxes realized by the Parent Indemnified Parties as a result respect of such Damages (including any such Tax benefit realized in the taxable period in which such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages shares in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, Agreement; including any claim for Damages to the extent set forth in Section 2 of the letter dated as of the date hereof, between the Company and Parent (Re: Indemnification Matters) (the “Indemnification Matters Letter”). Notwithstanding anything herein to the contrary, (a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (b) a breach of a representation costs or warranty shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent Indemnified Parties shall be entitled to receive in satisfaction of claims for indemnification pursuant to this Section 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification for Damages to the extent that the items giving rise to such Damages had been accounted for in any of the adjustments to the Merger Consideration pursuant to Sections 3.3(f), (g) and (h); (e) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the aggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the aggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible; and (f) the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above with respect to any of the matters set forth on Schedule 11.1 attached hereto. In no event shall the Former Company Stockholders be liable for any punitive, special or exemplary damages except to the extent actually payable by a Parent Indemnified Party to a third party.other

Indemnification of Parent. From (a) The Company agrees that, after the Effective Time, Parent and the Surviving Corporation (each a “Buyer Indemnified Person”), but only to the extent of funds on deposit in the Indemnity Escrow and the amounts available under the Indemnity Policy, shall, to the extent provided in this Article VII 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, court or arbitration costs and Taxes of or with respect to the Company or any Company Subsidiary (or of or with respect to any other member of the same consolidated group, or any of their respective predecessors) paid or payable after the Effective Time but specifically excluding consequential damages, lost profits, indirect damages, punitive damages, exemplary damages and any Taxes incurred as a result of any recovery received under this Article VII (any and all such amounts subject to the limitations contained in this Article XIindemnification hereunder, the Former Company Stockholders will indemnify, on a several (and not joint) basis, Parent, Merger Sub, the Surviving Corporation and their respective officers, directors, employees and Affiliates (collectively, the being hereinafter collectively referred to as “Parent Indemnified PartiesDamages”) and hold the Parent Indemnified Parties harmless against any loss, expense, liability or other damage, including court costs and attorneys’ fees), to the extent such Damages arise out of the actual amount of such lossor result from, expensein connection with, liability or other damage (without regard to the use of any multiplier) (collectively “Damages”) that the Parent Indemnified Parties have incurred by reason virtue of (i) the any inaccuracy or breach misrepresentation in any of the representations or warranties given or made by the Company of any representation or warranty of the Company contained in this Agreement or in the certificate delivered pursuant to (other than Section 9.2(a) or 9.2(b) of this Agreement (in each case3.20 and Section 3.23), as qualified by the Schedules hereto, or the facts or circumstances constituting any such representation inaccuracy or warranty would read if all qualifications as to materialitymisrepresentation, including each reference to the defined term “Company Material Adverse Effect,” were deleted therefrom), and or (ii) any breach by the Shareholder Representative of the matters any covenant set forth on Schedule 4.16 of the Company Disclosure Schedules. All such calculations of Damages shall take into account any offset benefits or insurance proceeds received in connection with the matter out of which such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refund, credit or actual reduction in Taxes realized by the Parent Indemnified Parties as a result of such Damages (including any such Tax benefit realized in the taxable period in which such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified PartiesAgreement, any claim for Damages Unpaid Company Transaction Expense to the extent set forth it is not actually reflected in the Unpaid Company Transaction Expenses used to determine the Merger Consideration, or any inaccuracy or misrepresentation in the Company’s representation and warranty in Section 2 of 3.20 or Section 3.23, as qualified by the letter dated as of Schedules hereto, or the date hereoffacts or circumstances constituting any such inaccuracy or misrepresentation (collectively, between the “Company and Parent (Re: Indemnification Matters) (the “Indemnification Matters LetterBreaches”). Notwithstanding anything herein to the contrary; provided that Damages shall also include amounts awarded in a Third-Party Claim as consequential damages, (a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect lost profits, indirect damages, punitive damages or exemplary damages to any Damages arising under clause Person who is neither a Buyer Indemnified Person or Seller Indemnified Person (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (b) a breach of a representation or warranty shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be) nor an Affiliate thereof. For the avoidance of doubt, exceeds (together with all other claims so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent no Buyer Indemnified Parties shall Person will be entitled to receive in satisfaction of claims for indemnification be indemnified pursuant to this Section 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification 7.1 for any Damages to the extent that such amount is actually reflected in the items giving rise Net Closing Indebtedness, Unpaid Company Transaction Expenses or Closing Working Capital used to such Damages had been accounted for in any of the adjustments to determine the Merger Consideration pursuant to Sections 3.3(f), (g) and (h); (e) the Parent Indemnified Parties shall Consideration. The Company will not be entitled obligated to seek indemnification with respect indemnify any Buyer Indemnified Person for any Damages relating to any Damages arising under clause (ii) above unless inaccuracy, misrepresentation or breach of which Parent had actual knowledge on the date hereof, as and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the aggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the aggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible; and (f) the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above with respect to any of the matters set forth on Schedule 11.1 attached hereto. In no event shall the Former Company Stockholders be liable for any punitive, special or exemplary damages except to the extent actually payable that such knowledge is supported by a Parent Indemnified Party to a third partythe exchange of information during Parent’s due diligence investigation of the Company.

Indemnification of Parent. From and after the Effective Time and subject Subject to the limitations contained in this Article XISection 7.5, the Former Company Stockholders will indemnifyShare ------------------------- Recipients (other than those holders of Eligible Dissenting Shares), on a several (and not joint) basis, Parent, Merger Sub, the Surviving Corporation and their respective officers, directors, employees and Affiliates (collectively, the “Parent Indemnified Parties”) and hold the Parent Indemnified Parties harmless against any loss, expense, liability or other damage, including court costs and attorneys’ fees, to the extent of the actual amount of such loss, expense, liability or other damage (without regard to the use of any multiplier) (collectively “Damages”) that the Parent Indemnified Parties have incurred by reason of the approval by the Company's stockholders of the Merger and each Share Recipient's acceptance of the consideration provided for in Section 1.4 hereof or Section 1.1.1 of the Note Retirement Agreement and by the execution of the Escrow Agreement pursuant to Section 1.4.6 which is a condition to receiving such consideration shall, severally but not jointly (it being understood that with respect to the Share Recipients, the term "severally" means that each Share Recipient's total indemnification obligation shall be limited to such Share Recipient's pro rata share of the indemnification obligations of the Share Recipients, with the understanding that such pro rata share shall be based upon the respective amount of consideration payable to such Share Recipient under Section 1.4 hereof), agree to defend, indemnify, and hold Parent harmless from and against, and to reimburse Parent with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs, and expenses (including attorneys' fees) ("Indemnifiable Amounts") of every nature whatsoever incurred by Parent by reason of or arising out of or in connection with (i) the inaccuracy any breach, or breach any claim (including claims by the parties other than Parent) that if true, would constitute a breach, by Company of any representation or warranty of the Company contained in this Agreement or in the any certificate or other document delivered to Parent pursuant to Section 9.2(a) or 9.2(b) the provisions of this Agreement, (ii) the failure, partial or total, of Company to perform any agreement or covenant required by this Agreement to be performed by it, (iii) any tax liability, or asserted liability of the Company relating to any period of time prior to and through the Closing which is not disclosed in the Financial Statements or the Closing Balance Sheet, and in each case, as such representation case without giving effect to any "materiality" limitations or warranty would read if all qualifications as references to materiality, including each reference to the defined term “Company "Material Adverse Effect,” were deleted therefrom), and (ii) any of the matters " set forth on Schedule 4.16 of the Company Disclosure Schedulestherein. All such calculations of Damages shall take into account any offset benefits or insurance proceeds received in connection with the matter out of which such Damages shall arise net The obligations of any premium increases directly resulting therefrom and shall take into account any refund, credit or actual reduction in Taxes realized by the Share Recipient to indemnify Parent Indemnified Parties as a result of such Damages (including any such Tax benefit realized in the taxable period in which such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages in accordance with this Article XI shall be promptly paid determined without regard to the Former Company Stockholders’ Agent. Each any right to indemnification to which any Share Recipient may have in his or her capacity as an officer, director, employee, agent or any other capacity of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, any claim for Damages to the extent set forth in Section 2 of the letter dated as of the date hereof, between the Company and Parent (Re: Indemnification Matters) (the “Indemnification Matters Letter”). Notwithstanding anything herein to the contrary, (a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties no Share Recipient shall be entitled to any indemnification only from Company or the Surviving Corporation for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (b) a breach of a representation or warranty shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent Indemnified Parties amounts paid hereunder. There shall be entitled no right of contribution from Company or any successor to receive in satisfaction of claims for indemnification pursuant to this Section 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification for Damages to the extent that the items giving rise to such Damages had been accounted for in any of the adjustments to the Merger Consideration pursuant to Sections 3.3(f), (g) and (h); (e) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the aggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the aggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible; and (f) the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above with respect to any of the matters set forth on Schedule 11.1 attached hereto. In no event shall the Former Company Stockholders be liable for any punitive, special or exemplary damages except to the extent actually payable by a Parent Indemnified Party to a third partyCompany.

Indemnification of Parent. From and (a) The Company Holders agree that, after the Effective Time and subject to the limitations contained in this Article XI, the Former Company Stockholders will indemnify, on a several (and not joint) basisTime, Parent, Merger Subthe Surviving Corporation, the Surviving Corporation Company and their respective Affiliates and any officers, directors, employees or agents thereof (each a “Buyer Indemnified Person”), but only to the extent of funds on deposit in the Indemnity Escrow shall, to the extent provided in this Article IX, be indemnified and Affiliates (collectivelyheld harmless from and against, the “Parent Indemnified Parties”) any and hold the Parent Indemnified Parties harmless against any lossall claims, expensedemands, liability suits, actions, causes of actions, losses, costs, damages, penalties, assessments, liabilities and out-of-pocket expenses incurred or other damagepaid, including court costs and reasonable attorneys’ fees, costs of investigation or settlement, other professionals’ and experts’ fees, and court or arbitration costs but specifically excluding, other than in the case of a Third-Party Claim, consequential damages or punitive and exemplary damages (hereinafter collectively referred to as “Damages”), to the extent such Damages are determined by a Final Award, a final order of a court of competent jurisdiction or written agreement of Parent and the actual amount Stockholder Representative to have arisen out of such lossor to have resulted from, expensein connection with, liability or other damage (without regard to the use of any multiplier) (collectively “Damages”) that the Parent Indemnified Parties have incurred by reason virtue of (i) facts or circumstances which constitute an inaccuracy (in the inaccuracy case of any such representation or warranty, as of the date of this Agreement or such earlier specified date as of which such representation or warranty was expressly made (each, an “Earlier Date Representation”) or, except for any Earlier Date Representation, as of and as if made on the Closing Date), misrepresentation, false certification, breach of, default in, or failure to perform, any of the representations, warranties or covenants given or made by the Company of any representation or warranty of the Company contained in this Agreement or in the certificate delivered pursuant to Section 9.2(a) or 9.2(b) of this Agreement (in each case8.2(c)(i), as such representation or warranty would read if all qualifications as to materialityqualified by the Company Disclosure Schedules hereto (collectively, including each reference to the defined term “Company Material Adverse Effect,” were deleted therefromBreaches”), and (ii) any of Indebtedness, Company Transaction Expense or Closing Taxes to the extent it is not actually reflected in the Closing Indebtedness, Unpaid Company Transaction Expenses or Closing Taxes used to determine the Merger Consideration, (iii) the matters set forth on Schedule 4.16 9.1(a) (the “Special Indemnified Matters”) or (iv) any claim made by any Non-Signatory Holders with respect to the Merger (including the treatment of the Merger as an Approved Sale, and a liquidation of the Company Disclosure Schedulesunder the Company Charter), the Company Charter, this Agreement, the transactions contemplated hereby and thereby, the payment of expenses incurred by the Stockholder Representative as set forth herein, the provisions of, and method of determination, reduction, allocation, payment and post-Closing adjustment of the Merger Consideration provided for in Articles II and IX both generally and with respect to such Equity Securities and any claims and causes of actions and any rights it has under Section 262 of the DGCL (the “Non-Joinder Indemnified Matters” and, collectively with the other matters for which indemnification is provided in this Section 9.1(a), the “Company Indemnified Matters”). All such calculations For purposes of determining whether there has been any Company Breach in respect of any representation or warranty (other than with respect to any Qualified Representation), and for purposes of calculating the amount of Damages shall take into account any offset benefits or insurance proceeds received in connection with the matter out of to which such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refund, credit or actual reduction in Taxes realized by the Parent Indemnified Parties an Indemnitee is entitled as a result of such Damages (including any such Tax benefit realized in the taxable period in which Company Breach, such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, any claim for Damages to the extent set forth in Section 2 of the letter dated as of the date hereof, between the Company and Parent (Re: Indemnification Matters) (the “Indemnification Matters Letter”). Notwithstanding anything herein to the contrary, (a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (b) a breach of a representation or warranty shall not be deemed to have occurred and qualified or limited by any concept of “material,” “materiality,” “Company Material Adverse Effect” or other similar materiality qualification or limitations. For the Parent avoidance of doubt, no Buyer Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent Indemnified Parties shall Person will be entitled to receive in satisfaction of claims for indemnification be indemnified pursuant to this Section 11.1 or Section 8.6 shall in no event exceed the 9.1 for any amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification for of Damages to the extent that such amount is actually reflected in the items giving rise Closing Indebtedness, Unpaid Company Transaction Expenses or Closing Working Capital used to such Damages had been accounted for in any of the adjustments to determine the Merger Consideration pursuant to Sections 3.3(f), (g) and (h); (e) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the aggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the aggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible; and (f) the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above with respect to any of the matters set forth on Schedule 11.1 attached hereto. In no event shall the Former Company Stockholders be liable for any punitive, special or exemplary damages except to the extent actually payable by a Parent Indemnified Party to a third partyConsideration.

Indemnification of Parent. From and after the Effective Time and subject to the limitations contained in this Article XI, the Former Company Stockholders will indemnify, on a several (and not joint) basis, Parent, Merger Sub, the Surviving Corporation and their respective officers, directors, employees and Affiliates (collectively, the “Parent Indemnified Parties”) and hold the Parent Indemnified Parties harmless against any loss, expense, liability or other damage, including court costs and attorneys’ fees, to the extent of the actual amount of such loss, expense, liability or other damage (without regard to the use of any multiplier) (collectively “Damages”) that the Parent Indemnified Parties have incurred by reason of (i) the inaccuracy or breach by the Company of any representation or warranty of the Company contained in Article IV of this Agreement or in the certificate delivered pursuant to Section 9.2(a) or 9.2(b) of this Agreement (in each case, as such representation or warranty would read if all qualifications as to materiality, including each reference to the defined term “Company Material Adverse Effect,” were deleted therefrom), and or (ii) any of the matters set forth on Schedule 4.16 of the Company Disclosure Schedules. All such calculations of Damages shall take into account any offset benefits or insurance proceeds received in connection with the matter out of which such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refund, credit or actual reduction in Taxes realized by the Parent Indemnified Parties as a result of such Damages (including any such Tax benefit realized in the taxable period in which such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, any claim for Damages arising under clause (i) above if, prior to the extent set forth in Section 2 Closing, it had actual knowledge and understanding of the letter dated as of the date hereof, between the Company and Parent that misrepresentation or breach (Re: Indemnification Matters) (the “Indemnification Matters Letter”including potential consequences thereof). Notwithstanding anything herein to the contrary, (a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in Section 1 the letter dated as of the date hereof, between the Company and Parent (Re: Indemnification Matters) (the “Indemnification Matters Letter”); (b) a breach of a representation or warranty shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent Indemnified Parties shall be entitled to receive in satisfaction of claims for indemnification pursuant to this Section 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification for Damages to the extent that the items giving rise to such Damages had been accounted for in any of the adjustments to the Merger Consideration pursuant to Sections 3.3(f), (g) and (h); and (e) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the aggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the aggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible; and (f) the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above with respect to any of the matters set forth on Schedule 11.1 attached hereto. In no event shall the Former Company Stockholders be liable for any punitive, special or exemplary damages except to the extent actually payable by a Parent Indemnified Party to a third party.