Common use of Indemnity by the Buyer Clause in Contracts

Indemnity by the Buyer. Subject to the terms and conditions of this Section 11, the Buyer agrees to indemnify, defend and hold each Selling Entity and its Affiliates (collectively, for purposes of this Section 11, the "Seller Indemnified Parties") harmless from and with respect to any and all Losses, to the extent such Losses result directly or indirectly from any of the following: (i) the inaccuracy of any representation or warranty made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) for the amount of such Losses in excess of $100,000; (ii) any failure or any breach by the Buyer of any covenant, obligation or undertaking made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto, including any breach of the Buyer's agreement to assume the Assumed Obligations pursuant to Section 2; (iii) any claims against, or debts, liabilities or obligations of the Buyer, whether or not relating to the Acquired Assets or the operation of the Business after the Closing, unless such debt, liability or obligation is one for which the Seller has agreed to indemnify Buyer hereunder; and (iv) any claim for any brokerage commissions asserted by any broker as a result of any action by the Buyer.

Indemnity by the Buyer. Subject From and after the Closing, subject to the terms and conditions provisions of this Section 119, the Buyer agrees to indemnifyshall indemnify the Seller and each of its Affiliates, defend directors, officers and hold employees and each Selling Entity of the respective successors and its Affiliates assigns of the foregoing (collectively, for purposes of this Section 11, the "“Seller Indemnified Parties"”) and hold them harmless from and against any and all Losses suffered or incurred by the Seller Indemnified Parties (a) to the extent arising from any breach of (i) any representation, warranty, covenant or agreement of the Buyer in this Agreement or (ii) any covenant or agreement to be performed by the Company following the Closing, (b) to the extent arising from actions taken by the Buyer or the Company on or after the Closing Date relating to the operations of the Company following the Closing, or (c) with respect to any Transfer Taxes for which the Buyer is responsible pursuant to Section 8.7.1 or any Taxes described in clause (x), (y), or (z) of Section 8.7.2(b). Except with respect to any claims for indemnification for Buyer’s breach of any Buyer Fundamental Representation, Seller Indemnified Parties will not be entitled to indemnification under Section 9.3.1(a)(i) unless and all Lossesuntil aggregate Losses for which indemnification would otherwise be available under Section 9.3.1(a)(i) exceed the Deductible, at which point indemnification shall be available to the extent such Losses result directly or indirectly from any of the following: (iBuyer Indemnified Parties under Section 9.3.1(a)(i) the inaccuracy of any representation or warranty made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) for the amount of such those Losses in excess of $100,000; (ii) any failure the Deductible. The applicable Seller Indemnified Party or any breach by the Seller will provide the Buyer with a prompt, detailed written notice for any claim made in respect of any covenant, obligation or undertaking made by the Buyer indemnification provided in or pursuant to this Agreement Section 9.3 (including the Schedules basis of such claim, the provisions of this Agreement alleged to have been breached and Exhibits hereto) the amount of Losses incurred or any other statement, certificate or other instrument delivered pursuant hereto, including any breach of the Buyer's agreement to assume the Assumed Obligations pursuant to Section 2; (iii) any claims against, or debts, liabilities or obligations of the Buyersuffered with respect thereto), whether or not relating to the Acquired Assets or the operation arising out of the Business after the Closing, unless such debt, liability or obligation is one for which the Seller has agreed to indemnify Buyer hereunder; and (iv) any claim for any brokerage commissions asserted by any broker as a result of any action by the BuyerThird Party Claim.

Indemnity by the Buyer. Subject to the terms and conditions provisions of this Section 11Sections 11.3 to 11.9, the Buyer agrees to indemnify, defend indemnify and hold each Selling Entity the Seller and its Affiliates (collectively, for purposes of this Section 11, the "Seller Indemnified Parties") harmless from and with respect to any and all Losses, related to the extent such Losses result or arising directly or indirectly from out of any of the following: (i) the inaccuracy of any representation or warranty made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) for the amount of such Losses in excess of $100,000; (ii) any failure or any breach by the Buyer of any representation or warranty, covenant, obligation or undertaking made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or in any other statement, certificate or other instrument delivered pursuant hereto, including any breach of the Buyer's agreement agreements attached as exhibits hereto or the certificate to assume the Assumed Obligations be delivered pursuant to Section 29.3; or (ii) except to the extent subject to the Seller's indemnification obligations under Section 11.1, any claim, liability, obligation or damage arising out of the activities of the Buyer conducted after the Closing with the Acquired Waste Business Assets, including the following: (A) except for the Seller's obligations under Section 7.8 and Section 7.18, any actual or alleged liability for the cleanup or removal of, or for death or injury to person or property as a result of the release, presence, emission, transportation or discharge of, any Hazardous Substance or radioactive material relating to or affecting the Acquired Waste Business Assets or the VECTRA Waste Business, to the extent such liability arises out of any matter that occurred after the Closing Date; (iiiB) any claims against, actual or debts, liabilities alleged liability for death or obligations of the Buyer, whether injury to person or not relating to the Acquired Assets or the operation of the Business after the Closing, unless such debt, liability or obligation is one for which the Seller has agreed to indemnify Buyer hereunder; and (iv) any claim for any brokerage commissions asserted by any broker property as a result of any action actual or alleged defect in any product sold or services rendered by the BuyerBuyer after the Closing Date; (C) any contractual product or service warranty claims arising out of defects in any product sold or services rendered by the Buyer after the Closing Date; (D) any actual or alleged liability for Taxes of the Buyer for any period after the Closing; (E) any actual or alleged violation of Law by the Buyer after the Closing Date; (F) any failure to perform the Assumed Liabilities; and (G) any claim, obligation or liability arising in connection with the employment or termination of employment of any of the Assumed Employees after the Closing Date, including any workmen's compensation claims, any employee grievances, any liabilities with respect to pension, medical or other employment benefits and any liabilities for accrued vacation, bonus or severance payments as a result of the consummation of the transactions contemplated by this Agreement, but excluding any claims under any of the Seller's Employee Benefit Plans.

Indemnity by the Buyer. Subject to the terms and conditions of (a) Except as otherwise provided in this Section 11Agreement, the Buyer hereby agrees to indemnify, defend and hold each Selling Entity and its Affiliates (collectively, for purposes of this Section 11harmless the Seller, the "Seller Indemnified Parties"Stockholders and their Affiliates against and in respect of all Losses (whether or not resulting from a Third Party Claim) harmless from and with respect to any and all Losses, to the extent such Losses that result directly or indirectly from any of the followingfrom: (i) the inaccuracy conduct of the Business after the Closing Date (except for the Excluded Liabilities); (ii) any breach of a representation or warranty made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) for the amount of such Losses in excess of $100,000; (ii) any failure or any breach by the Buyer of any covenant, obligation or undertaking made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto, including any breach of the Buyer's agreement to assume the Assumed Obligations pursuant to Section 2Agreement; (iii) any claims against, or debts, liabilities or obligations default in the performance of any of the Buyer, whether covenants or not relating to agreements made by the Acquired Assets or the operation of the Business after the Closing, unless such debt, liability or obligation is one for which the Seller has agreed to indemnify Buyer hereunderin this Agreement; and (iv) any failure of the Buyer to pay, discharge, or perform any of the Assumed Liabilities, or any asserted liability resulting from any dispute or claim against the Seller and/or any Stockholders concerning any of the Assumed Liabilities. (b) Notwithstanding anything to the contrary contained herein, the Seller and the Stockholders shall not be entitled to indemnification from the Buyer until such time as the claims of indemnification by the Seller and the Stockholders exceed, in the aggregate, the Liability Basket, but then for the full amount of the claims. Notwithstanding the foregoing, the Liability Basket as set forth in this Section 9.3(b) shall not apply to any brokerage commissions asserted indemnification claims of the Seller in connection with: (i) any willful or intentional breach by the Buyer of this Agreement or any broker as a result other agreement, instrument or document executed or delivered by the Buyer hereunder; (ii) any fraud by the Buyer related to the transactions contemplated hereby; (iii) any breach of any action covenant or agreement of the Buyer contained in this Agreement or any other agreement, document or instrument executed or delivered pursuant hereto; (iv) the Purchase Consideration Adjustment; (v) Sections 9.3(a)(i) or 9.3(a)(iv); and (vi) any breach or inaccuracy of the representation and warranty of the Buyer in Section 4.4. (c) Notwithstanding anything to the contrary contained herein, the total aggregate liability of the Buyer under this Section 9 shall be limited to the Cap; provided, however, the limitations of the Cap shall not apply to Losses arising out of: (i) any fraud by the BuyerBuyer related to the transactions contemplated hereby; (ii) the Purchase Consideration Adjustment; (iii) any breach of, or inaccuracy in, the representation and warranty of the Buyer in Section 4.4; (iv) Sections 9.3(a)(i) or 9.3(a)(iv); or (v) Taxes imposed, or threatened to be imposed, on the Seller with respect to, or arising out of, the operations of the Business following the Closing Date.

Indemnity by the Buyer. Subject to the terms and conditions of limitations set forth in this Section 11Article 7, the Buyer agrees to indemnify, defend will indemnify and hold harmless the Seller and the Seller’s respective Affiliates, and the Representatives and Affiliates of each Selling Entity and its Affiliates of the foregoing Persons (collectivelyeach, for purposes of this Section 11, the "a “Seller Indemnified Parties") harmless from Person”), from, against and with in respect to of any and all LossesLosses incurred or suffered by the Seller Indemnified Persons or any of them as a result of, to the extent such Losses result arising out of or relating to, directly or indirectly from indirectly: (a) any of the following: (i) the breach of, or inaccuracy of in, any representation or warranty made by the Buyer in this Agreement any Ancillary Agreement or in any document, Schedule, instrument or certificate delivered pursuant to this Agreement (in each case, as such representation or warranty would read if all qualifications as to materiality, including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only each reference to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) for the amount of such Losses in excess of $100,000; defined term “Material Adverse Effect,” were deleted therefrom); (iib) any failure breach or any breach by the Buyer violation of any covenant, obligation covenant or undertaking made by agreement of the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate Ancillary Agreement; or other instrument delivered pursuant hereto, including any breach of the Buyer's agreement to assume the Assumed Obligations pursuant to Section 2; (iiic) any claims againstAssumed Liability. Buyer’s maximum and cumulative indemnification liability to Seller under this Section 7 shall be limited to One Hundred Fifty Thousand Dollars ($150,000), or debtsfor all claims, liabilities or obligations of the whatever kind, whenever made. Further, Buyer, whether or not relating to the Acquired Assets or the operation of the Business after the Closing, unless such debt, liability or ’s obligation is one for which the Seller has agreed to indemnify Buyer hereunder; and Seller under this Section 7 shall terminate and expire six (iv6) any claim for any brokerage commissions asserted by any broker as a result of any action by months following the BuyerClosing Date.

Indemnity by the Buyer. Subject to the terms and conditions of this Section 11, the (a) The Buyer hereby agrees to indemnify, defend indemnify and hold each Selling Entity and its Affiliates (collectively, for purposes of this Section 11, the "Seller Indemnified Parties") harmless from Imagyn against and with respect to any and all Losses, Losses suffered or incurred by Imagyn to the extent such Losses result directly or indirectly from any of the followingcaused proximately by: (i) the inaccuracy any material breach of any representation or warranty made by of the Buyer contained in or pursuant to this Agreement (including or in any of the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) for the amount of such Losses in excess of $100,000;Transaction Documents. (ii) any failure material non-fulfillment of any covenant or any breach by agreement of the Buyer of any covenant, obligation or undertaking made by the Buyer contained in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or in any other statement, certificate or other instrument delivered pursuant hereto, including any breach of the Buyer's agreement to assume the Assumed Obligations pursuant to Section 2;Transaction Documents. (iii) any claims against, or debts, liabilities or obligations of the Buyer, whether or not relating to the Acquired Assets or the operation of the Business after the Closing, unless such debt, liability or obligation is one for which the Seller has agreed to indemnify Buyer hereunder; and (iv) any claim for any brokerage commissions asserted by any broker are brought against Imagyn as a result of any action the retention by the Buyer after the Closing of any assets transferred to the Buyer hereunder or Buyer's use of any trade names or trademarks of Imagyn not included in the Purchased Assets after the Closing as provided for in Section 2.04. (iv) fifty percent (50%) of the severance costs incurred by Seller in connection with the termination of the Imagyn employees within the Business pursuant to the previously disclosed severance policy of Imagyn, which is listed on Schedule 10.03. (b) Notwithstanding anything to the contrary provided elsewhere in this Agreement the obligation of Buyer under this Agreement to indemnify Seller with respect to any claim pursuant to Section 10.03(a) shall be of no force unless Seller has given Buyer written notice of such claim within eighteen (18) months after the Closing Date. (c) Notwithstanding anything to the contrary provided elsewhere in this Agreement, in no event shall Buyer be liable for amounts payable under the first clause of Section 10.03(a) until such amounts exceed $150,000.

Indemnity by the Buyer. Subject From and after the Closing, subject to the terms and conditions provisions of this Section 11Article 9, the Buyer agrees to indemnifyshall indemnify the Seller and each of its Affiliates, defend Subsidiaries, officers, directors, members, partners (general and limited), managers, employees, agents and other representatives and the Affiliates, Subsidiaries, officers, directors, members, partners (general and limited), managers, employees, agents and other representatives thereof, as well as the successors, assigns, heirs and personal representatives of the foregoing (collectively, the “Seller Indemnified Parties”) and hold each Selling Entity and its Affiliates (collectively, for purposes of this Section 11, the "Seller Indemnified Parties") them harmless from and with respect to against any and all LossesLosses actually suffered or incurred by the Seller Indemnified Parties (or any one of them) as a result of, to arising from or relating to: (a) any breach of or inaccuracy as of the extent such Losses result directly or indirectly from date hereof in any of the following: representations and warranties made in Article 5 or, as of the Closing Date, in the Buyer Closing Certificate; (ib) the inaccuracy any breach or violation of any representation or warranty made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) for the amount of such Losses in excess of $100,000; (ii) any failure or any breach by the Buyer of any covenant, obligation or undertaking made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto, including any breach Pre-Closing Covenant of the Buyer's agreement to assume the Assumed Obligations pursuant to Section 2; ; -59- (iiic) any claims against, breach or debts, liabilities or obligations violation of any Post-Closing Covenant of the BuyerBuyer or the Acquired Companies; (d) any Transferred Assets or Assumed Liabilities (other than as a result of, whether arising from or not relating to any matter for which the Acquired Assets Buyer would be entitled to indemnification under this Article 9); or (e) the operation of the Business after following the ClosingClosing Date, unless such debtincluding with respect to any Taxes of the Acquired Companies for any Post-Closing Tax Period (other than as a result of, liability arising from or obligation is one relating to any matter for which the Seller has agreed Buyer would be entitled to indemnify Buyer hereunder; and (iv) any claim for any brokerage commissions asserted by any broker as a result of any action by indemnification under this Article 9, without taking into account the Buyerlimitations therein).

Indemnity by the Buyer. Subject to the terms and conditions of (a) Except as otherwise provided in this Section 11Agreement, the Buyer hereby agrees to indemnify, defend and hold each Selling Entity and its Affiliates (collectively, for purposes of this Section 11harmless the Seller, the "Seller Indemnified Parties"Members and their Affiliates against and in respect of all Losses (whether or not resulting from a Third Party Claim) harmless from and with respect to any and all Losses, to the extent such Losses that result directly or indirectly from any of the followingfrom: (i) the inaccuracy conduct of the Business after the Closing Date (except for the Excluded Liabilities); (ii) any breach of a representation or warranty made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) for the amount of such Losses in excess of $100,000; (ii) any failure or any breach by the Buyer of any covenant, obligation or undertaking made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto, including any breach of the Buyer's agreement to assume the Assumed Obligations pursuant to Section 2Agreement; (iii) any claims against, or debts, liabilities or obligations default in the performance of any of the Buyer, whether covenants or not relating to agreements made by the Acquired Assets or the operation of the Business after the Closing, unless such debt, liability or obligation is one for which the Seller has agreed to indemnify Buyer hereunderin this Agreement; and (iv) any failure of the Buyer to pay, discharge, or perform any of the Assumed Liabilities, or any asserted Liability resulting from any dispute or claim against the Seller concerning any of the Assumed Liabilities. (b) Notwithstanding anything to the contrary contained herein, the Seller and the Members shall not be entitled to indemnification from the Buyer until such time as the claims of indemnification by the Seller and the Members exceed, in the aggregate, the Liability Basket, but then for the full amount of the claims. Notwithstanding the foregoing, the Liability Basket as set forth in this Section 9.3(b) shall not apply to any brokerage commissions asserted indemnification claims of the Seller in connection with: (i) any willful or intentional breach by the Buyer of this Agreement or any broker as a result other agreement, instrument or document executed or delivered by the Buyer hereunder; (ii) any fraud by the Buyer related to the transactions contemplated hereby; (iii) any breach of any action by covenant or agreement of the BuyerBuyer contained in this Agreement or any other agreement, document or instrument executed or delivered pursuant hereto; (iv) the Purchase Consideration Adjustment; and (v) Section 9.3(a)(iv).

Indemnity by the Buyer. Subject to the terms and conditions of (a) Except as otherwise provided in this Section 11Agreement, the Buyer hereby agrees to indemnify, defend and hold each Selling Entity harmless the Seller and its Affiliates the Member against and in respect of all Losses (collectively, for purposes of this Section 11, the "Seller Indemnified Parties"whether or not resulting from a Third Party Claim) harmless from and with respect to any and all Losses, to the extent such Losses that result directly or indirectly from any of the followingfrom: (i) the inaccuracy conduct of any representation or warranty made by the Buyer in or pursuant to this Agreement Business after the Closing Date (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) except for the amount of such Losses in excess of $100,000Excluded Liabilities); (ii) any failure breach of the representations, warranties, covenants and agreements of the Buyer under this Agreement; or (iii) the Assumed Liabilities. (b) Notwithstanding anything to the contrary contained herein, (i) the Seller and Member shall not be entitled to indemnification from the Buyer until such time as the claims of indemnification by the Seller and the Member exceed, in the aggregate, $100,000.00 (the “Buyer Liability Basket”), but then for the full amount of the claims, and (ii) in no event shall the amount that the Seller or the Member is entitled to indemnification from the Buyer exceed Thirteen Million ($13,000,000.00) Dollars (the “Buyer Liability Cap”). Notwithstanding the foregoing, the Buyer Liability Basket and the Buyer Liability Cap, each as set forth in this Section 9.3(b) shall not apply to any claims of Seller or the Member, including any claims for indemnification by the Seller or Member: (i) in connection with any willful or intentional breach by the Buyer of this Agreement or any covenantother agreement, obligation instrument or undertaking made document executed or delivered by the Buyer hereunder, (ii) in or pursuant connection with any fraud by the Buyer related to this Agreement the transactions contemplated hereby, (including the Schedules and Exhibits heretoiii) or any other statement, certificate or other instrument delivered pursuant hereto, including in connection with any breach of any covenant or agreement of Buyer contained in this Agreement or any of the Buyer's agreement to assume Transaction Documents, (iv) in connection with the Assumed Obligations pursuant to Section 2; Purchase Consideration Adjustment, (iiiv) in connection with any breach of, or inaccuracy in, any of the representations and warranties of Buyer set forth in Sections 4.1, 4.2, 4.3, and/or 4.4, or (vi) any claims againstTaxes imposed, or debtsthreatened to be imposed, liabilities or obligations of on the Buyer, whether or not relating to the Acquired Assets Seller or the operation Member with respect to, or arising out of, the operations of the Business after subsequent to the Closing, unless such debt, liability or obligation is one for which the Seller has agreed to indemnify Buyer hereunder; and (iv) any claim for any brokerage commissions asserted by any broker as a result of any action by the BuyerClosing Date.

Indemnity by the Buyer. Subject to the terms and conditions of (a) Except as otherwise provided in this Section 11Agreement, the Buyer hereby agrees to indemnify, defend and hold each Selling Entity and its Affiliates (collectively, for purposes of this Section 11harmless the Seller, the "Seller Indemnified Parties"Stockholders and their Affiliates against and in respect of all Losses (whether or not resulting from a Third Party Claim) harmless from and with respect to any and all Losses, to the extent such Losses that result directly or indirectly from any of the followingfrom: (i) the inaccuracy Buyer’s ownership and use of the Acquired Assets and conduct of the Business, in each case after the Closing Date (except, in each instance, for the Excluded Liabilities); (ii) any breach of a representation or warranty made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) for the amount of such Losses in excess of $100,000; (ii) any failure or any breach by the Buyer of any covenant, obligation or undertaking made by the Buyer in or pursuant to this Agreement (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto, including any breach of the Buyer's agreement to assume the Assumed Obligations pursuant to Section 2Agreement; (iii) any claims against, or debts, liabilities or obligations default in the performance of any of the Buyercovenants or agreements made by the Buyer in this Agreement, whether the Earnout Agreement or not relating to any other agreement, document or instrument executed or delivered by the Acquired Assets or the operation of the Business after the Closing, unless such debt, liability or obligation is one for which the Seller has agreed to indemnify Buyer hereunderpursuant hereto; and (iv) any failure of the Buyer to pay, discharge, or perform any of the Assumed Liabilities, or any asserted Liability resulting from any dispute or claim against the Seller concerning any of the Assumed Liabilities. (b) Except as otherwise provided herein, (i) the Seller and the Stockholders shall not be entitled to indemnification from the Buyer until such time as the claims of indemnification by the Seller and the Stockholders exceed, in the aggregate, the Liability Basket, but then for the full amount of the claims, and (ii) the maximum aggregate liability of the Buyer and its Affiliates to the Seller and the Stockholders with respect to claims under Section 9.3(a) will be limited to, and in no event exceed, the Cap. Notwithstanding the foregoing, the Liability Basket and the Cap shall not apply to any brokerage commissions asserted indemnification claims of the Seller or the Stockholders in connection with: (i) any willful or intentional breach by the Buyer of this Agreement or any broker as a result other agreement, instrument or document executed or delivered by the Buyer hereunder; (ii) any fraud by the Buyer related to the transactions contemplated hereby; (iii) any breach of any action by covenant or agreement of the BuyerBuyer contained in this Agreement or any other agreement, document or instrument executed or delivered pursuant hereto; (iv) the Purchase Consideration Adjustment; (v) any breach of, or inaccuracy in, any of the representations and warranties of the Buyer set forth in Sections 4.1, 4.2, 4.3 and/or 4.4; and (v) Section 9.3(a)(iv).

Indemnity by the Buyer. Subject to the terms and conditions of this Section 11, the The Buyer agrees to indemnify, defend indemnify and hold each Selling Entity ---------------------- of the Sellers and its Affiliates (collectivelytheir officers, for purposes of this Section 11directors, the "Seller Indemnified Parties") shareholders, employees, affiliates, agents, successors and assigns, harmless from and with respect to any and all Lossesclaims, liabilities, losses, damages, costs and expenses, including without limitation reasonable attorneys' fees and court costs, related to the extent such Losses result or arising directly or indirectly from out of (a) any of the following: (i) the inaccuracy of material inaccuracies or omissions in any representation or warranty made by the Buyer in or pursuant to this Agreement or the agreements related hereto, (including the Schedules and Exhibits hereto) or any other statement, certificate or other instrument delivered pursuant hereto; provided, however, that the Buyer shall be liable under this Section 11.2(i) in respect of Losses only to the extent the aggregate of such Losses exceeds $100,000 in which case the Buyer shall be liable under this 11.2(i) for the amount of such Losses in excess of $100,000; (iib) any material failure or any breach by the Buyer of any covenant, obligation agreement, obligation, or undertaking made by the Buyer in this Agreement or the agreements related hereto, or (c) any product liability claims made with respect to (i) products and components manufactured by the Buyer on or after the Closing Date, (ii) finished products ready for sale and manufactured by BSC (prior to the Closing Date or pursuant to this Agreement the terms of the Interim Supply Agreement) which are shipped to customers on or after the Closing Date, to the extent that the sterile packaging of any such products has been broken at any time prior to delivery to such customers, (including iii) finished products ready for sale and manufactured by BSC (prior to the Schedules and Exhibits heretoClosing Date or pursuant to the terms of the Interim Supply Agreement) which are altered by Buyer or its agents or representatives or damaged in any other statement, certificate or other instrument delivered pursuant heretoway, including without limitation repackaged (other than relabeled, except if such relabeling alters the product in any breach manner), following the Closing Date, or (iv) products sold or promoted for use by Buyer or its agents or representatives in violation of applicable labeling and use instructions, including without limitation, applicable expiration dates. The collective liability of the Buyer under this Section 10.2 (a) and (b) shall not exceed One Million Five Hundred Thousand Dollars ($1,500,000) and with respect to Section 10.2(c) shall be unlimited. Except as otherwise provided in Section 12.1, the Buyer's agreement to assume obligations under Section 10.2 (a) and (b) shall expire one (1) year following the Assumed Obligations pursuant to Closing Date and under Section 2; 10.2 (iiic) any claims against, or debts, liabilities or obligations of shall expire four (4) years following the Buyer, whether or not relating to the Acquired Assets or the operation of the Business after the Closing, unless such debt, liability or obligation is one for which the Seller has agreed to indemnify Buyer hereunder; and (iv) any claim for any brokerage commissions asserted by any broker as a result of any action by the BuyerClosing Date.