Common use of Limitation on Indemnification Clause in Contracts

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations of the Company set forth in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreement.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations of the Company Partnership set forth in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that the Indemnitee would not be permitted to be so indemnified under applicable lawthe Partnership Agreement; provided, however, that if the Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that the Indemnitee should be indemnified under applicable lawthe Partnership Agreement, any determination made by the Reviewing Party that the Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and the Indemnitee shall not be required to reimburse the Company Partnership for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company Partnership shall not be obligated to indemnify or advance to the Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company Partnership shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of IncorporationPartnership Agreement, the By-laws, the DGCL Act or otherwise; (c) the Company Partnership shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company Partnership consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company Partnership shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company Partnership pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company Partnership shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company Partnership shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent the Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreement.

Limitation on Indemnification. Notwithstanding Section 8(a) to the terms contrary, the BDC shall not provide for indemnification of Section 2the Indemnified Parties for any Losses suffered by the Indemnified Parties, nor shall the BDC provide that any of the Indemnified Parties be held harmless for any Losses suffered by any Indemnified Party, unless all of the following conditions are met: (ai) the obligations Indemnified Party has determined, in good faith, that the course of conduct which caused the Losses was in the best interests of the Company set forth in Section 2 shall be subject BDC; (ii) the Indemnified Party was acting on behalf of or performing services for the BDC; (iii) such Losses were not the result of negligence, willful misfeasance, bad faith, or misconduct by the Indemnified Party; and (iv) such indemnification or agreement to hold harmless is recoverable only out of the condition that BDC’s net assets and not from its stockholders. Furthermore, the Reviewing Indemnified Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement Losses arising from or out of Expenses until a final judicial determination is made with respect thereto an alleged violation of federal or state securities laws unless one or more of the following conditions are met: (as to which all rights of appeal therefrom have been exhausted or lapsedi) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination successful adjudication on the merits of each count involving alleged securities law violations as to the Indemnified Party; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction that as to the Indemnitee would be permitted to be so indemnified under applicable law);Indemnified Party; or (biii) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way court of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce competent jurisdiction approves a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlementclaims against the Indemnified Party and finds that indemnification of the settlement and related costs should be made, which consent shall not be unreasonably withheld; (d) and the Company shall not be obligated pursuant to court of law considering the terms request for indemnification has been advised of this Agreement to indemnify the Indemnitee on account position of the SEC and the published position of any suit state securities regulatory authority in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant BDC were offered or sold as to the provisions indemnification for violations of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementsecurities laws.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations of the Company set forth any other provision in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; providedthis Agreement, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated under this Agreement to indemnify make any indemnity payment in connection with any claim made against Indemnitee: (a) for which payment has actually been made to or advance on behalf of Indemnitee under any insurance policy or under another valid and enforceable indemnity provision, except with respect to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that excess beyond the Indemnitee would be permitted amount paid under any insurance policy or other indemnity provision and except for any payments which are required to be so indemnified under applicable law);disgorged by Indemnitee; or (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of the Company pursuant to within the provisions meaning of Section l6(b16(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, other federal or state statutory law or local statutory common law;; or (ec) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction except as otherwise provided in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment Section 12(e), in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company’s directors, officers, employees or other indemnitees, unless (i) such indemnification is expressly required to be made by applicable law, (ii) the Company Board authorized the Proceeding (or any part of the Proceeding) prior to its initiation or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company to the fullest extent permitted by applicable law. The Company shall have no obligation to indemnify Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this AgreementAgreement for amounts paid in settlement of any action, suit or proceeding without the Company’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Company shall not settle any action, suit or proceeding in any manner that would impose any fine or other obligation on Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.

Limitation on Indemnification. Notwithstanding Section 10(a) or Section 10(b), the terms of Section 2: (a) the obligations of the Company set forth in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding Manager and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) its subsidiaries and the Company shall not provide for indemnification of the Indemnified Parties for any liability or loss suffered by the Indemnified Parties, nor shall the Manager or its subsidiaries or the Company provide that any of the Indemnified Parties be obligated held harmless for any loss or liability suffered by the Manager and its subsidiaries or the Company, unless all of the following conditions are met: (i) the Indemnified Party has determined, in good faith, that the course of conduct which caused the loss or liability was in the best interests of the Manager and its subsidiaries or the Company, as applicable; (ii) the Indemnified Party was acting on behalf of or performing services for the Manager and its subsidiaries or the Company, as applicable; (iii) such liability or loss was not the result of negligence or misconduct by the Indemnified Party; and (iv) such indemnification or agreement to indemnify hold harmless is recoverable only out of the Manager’s net assets or advance the Company’s net assets, as applicable, and not from members of the Company. Furthermore, notwithstanding anything to Indemnitee the contrary, the Indemnified Party shall not be indemnified for any additional amounts covered by such Reviewing Party determination losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities laws unless one or more of the following conditions are met: (unless v) there has been a determination successful adjudication on the merits of each count involving alleged securities law violations as to the particular indemnitee; (vi) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction that as to the Indemnitee would be permitted to be so indemnified under applicable law);particular indemnitee; or (bvii) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way court of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce competent jurisdiction approves a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of the claims against a Proceeding unless particular indemnitee and finds that indemnification of the Company consents in advance in writing to such settlementsettlement and related costs should be made, which consent shall not be unreasonably withheld; (d) and the Company shall not be obligated pursuant to court of law considering the terms request for indemnification has been advised of this Agreement to indemnify the Indemnitee on account position of the SEC and the published position of any suit state securities regulatory authority in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant were offered or sold as to the provisions indemnification for violations of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementsecurities laws.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) Indemnification by the obligations of the Company set forth in Section 2 Stockholders. (i) A UAG Indemnified Party shall be subject entitled to indemnification in connection with an Event of Breach or a Stockholder Third Party Claim only to the condition that extent the Reviewing Party shall not have determined aggregate Costs incurred or sustained by all UAG Indemnified Parties exceed Two Hundred Fifty Thousand Dollars (based on $250,000) with respect to a written opinion breach of outside counsel in all cases) that Indemnitee would not be permitted any provision herein other than Section 2.11 or exceed a separate $250,000 amount with respect to be so indemnified a breach under applicable lawSection 2.11; provided, however, that if Indemnitee has commenced notwithstanding the preceding limitation, a UAG Indemnified Party shall be entitled to indemnification for all Costs incurred or thereafter commences legal proceedings sustained by such UAG Indemnified Party as a result of any untruth or inaccuracy in, or breach of, a representation, warranty or covenant (or failure to perform or observe any term, agreement or condition) contained in Article 1 or Sections 2.3, 2.8, 3.1, 5.6 and 5.14 (to the extent specified therein) hereof. (ii) A UAG Indemnified Party shall be entitled to indemnification in connection with an Event of Breach arising out of a court breach of competent jurisdiction any of the representations or warranties set forth in Articles 2 or 3 hereof or in connection with a Stockholder Third Party Claim for a period terminating on the later of (i) the date two years after the Closing Date, or (ii) with respect to secure any claim asserted with respect to any breach of such representation or warranty pursuant to Section 9.3 hereof before the expiration of such two year period, on the date such claim is finally liquidated or otherwise resolved; provided, however, that a determination that Indemnitee should UAG Indemnified Party shall be indemnified under applicable lawentitled to indemnification in connection with an Event of Breach arising out of the representations and warranties in Sections 2.3, any determination made 2.8, 2.11, 2.20, and 3.1 hereof until such claim is otherwise barred by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law statute of limitations. (iii) The aggregate Costs for which the Stockholders shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company UAG Indemnified Parties shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding exceed Twenty-Five Million Dollars (or part thereof$25,000,000) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case of Costs incurred or sustained by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment all UAG Indemnified Parties in connection with an Event of Breach; provided, however, that a UAG Indemnified Party shall be entitled to indemnification for all Costs incurred or sustained by such UAG Indemnified Party as a result of any Proceeding untruth or inaccuracy in, or breach of, a representation, warranty or covenant (or failure to the extent Indemnitee has otherwise actually received payment (under perform or observe any insurance policy term, agreement or otherwisecondition) of the amounts otherwise indemnifiable under this Agreementcontained in Article 1 or Sections 2.3, 2.8, 2.11, 2.20 and 3.1 hereof.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) The provisions for indemnity under Section 7.1(b) shall be effective only when the obligations Losses for which indemnification is sought exceed USD $140,000 in the aggregate (the “Indemnification Deductible”), in which case the Injured Party shall be entitled to indemnification of the Company set forth Injured Party’s Losses only in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawexcess thereof; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law Indemnification Deductible shall not be binding and Indemnitee shall not be required apply in any manner whatsoever to reimburse the Company for any advancement breach of Expenses until a final judicial determination is made Fundamental Representation or Sections 3.13 (with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsedTaxes only) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);3.8. (b) The indemnification obligations of Manitex and Liftking Parent pursuant to Section 7.1(b) shall be effective only until the Company shall not be required to indemnify dollar amount paid by Manitex or advance Expenses to the Indemnitee Liftking Parent in respect of all Losses indemnified against under such Sections aggregates USD $1,400,000 (except for Losses resulting from breaches of Fundamental Representations or Sections 3.13 (with respect to Taxes only) and 3.8, or as a Proceeding (result of fraudulent act or part thereofwillful misconduct by Manitex or Liftking Parent, as to which the foregoing USD $1,400,000 limitation shall not apply); provided, however, that the indemnification obligations of Manitex and Liftking Parent pursuant to Section 7.1(a) or resulting from breaches of Fundamental Representations shall be effective only until the dollar amount paid by the Indemnitee (Manitex and not by way of defense), except if the commencement Liftking Parent in respect of such Proceeding (i) was authorized in Losses aggregates to an amount equal to the specific case aggregate cash consideration received by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising Manitex and Liftking Parent under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;. (c) The indemnification obligations of Manitex under Section 7.1 shall be reduced by any Tax benefit actually realized by such Buyer Indemnified Person for any Tax period (or portion thereof) beginning and ending after the Company Effective Time which would not, but for such indemnifiable event, be available. Tax benefits and detriments shall not be obligated pursuant taken into account as and when actually realized. The amount of any such Tax benefit for any Tax period shall be the amount of the reduction in Taxes payable to a Tax Authority by such Buyer Indemnified Person with respect to such Tax period as compared to the terms of this Agreement Taxes that would have been payable to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing Tax Authority by such Buyer Indemnified Person with respect to such settlement, which consent shall not be unreasonably withheld;Tax period in the absence of such Tax benefit. (d) the Company Each Injured Party shall not be obligated pursuant use its reasonable efforts (consistent with its normal business practices) to the terms of this Agreement to indemnify the Indemnitee on account of collect any suit in which judgment is rendered against the Indemnitee amounts available under insurance coverage for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable Losses payable under this AgreementARTICLE VII.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations of the Company set forth in Section 2 shall be subject any other provision herein to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; providedcontrary, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated pursuant to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);this Agreement: (ba) the Company shall not be required to To indemnify or advance Expenses to the Indemnitee with respect to a Proceeding any threatened, pending or completed claim, action, suit, arbitration, investigation, inquiry, alternative dispute mechanism or proceeding, whether civil (including intentional and unintentional tort claims), criminal, administrative or part thereof) investigative, however denominated, initiated or brought voluntarily by the Indemnitee (and not whether by way of defense), except if the commencement of such Proceeding counterclaim or cross claim or otherwise, other than (i) was authorized in the specific case by the Board of Directors or (ii) an action brought to establish or enforce a right to indemnification and/or or advancement of Expenses arising under this Agreement, Agreement (which shall be governed by the Certificate provisions of Incorporation, the By-laws, the DGCL or otherwise; (cSection 6(b) the Company shall not be obligated pursuant to the terms of this Agreement Agreement), a claim, action, suit, arbitration, investigation, inquiry, alternative dispute mechanism or proceeding that was authorized or consented to indemnify by the Indemnitee for any amounts paid in settlement Board of a Proceeding unless Directors of the Company consents in advance in writing to Company, it being understood and agreed that such settlement, which authorization or consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment withheld in connection with any compulsory counterclaim brought by Indemnitee in response to an Action, Suit or Proceeding otherwise indemnifiable under this Agreement or (ii) as otherwise required under law. (b) To indemnify Indemnitee for any Expenses incurred by Indemnitee with respect to an action instituted by Indemnitee to enforce or interpret this Agreement if Indemnitee is not successful in such enforcement action in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder; provided that to the extent Indemnitee has otherwise actually received payment (under any insurance policy is successful in part and unsuccessful in part in establishing Indemnitee’s right to indemnification or otherwise) advancement of the amounts otherwise indemnifiable under this AgreementExpenses hereunder, Indemnitee shall be entitled to partial indemnification of Expenses.

Limitation on Indemnification. Notwithstanding any of the terms of Section 2foregoing, sellers’ and Brio’s indemnifications shall be limited as follows: (a) The obligation to pay indemnification shall only commence once an Indemnified Party’s claim for indemnification, either as a standalone claim or combined with all other claims for indemnification, exceeds $50,000 (the obligations “Indemnification Threshold”) except with respect to any claim, assertion, event, or proceeding in respect of the Company set forth in Section 2 any Sellers Taxes, which shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made governed by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law Article VI hereof and shall not be binding and Indemnitee so limited by the Indemnification Threshold. Once the Indemnified Party’s claim for indemnification exceeds the Indemnification Threshold, the Indemnifying Party shall not be required to reimburse indemnify the Company Indemnified Party for any advancement of Expenses until a final judicial determination is made with respect thereto (as all amounts to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated Indemnified Party is entitled to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);indemnification thereafter. (b) the Company shall not The amount of any Losses subject to indemnification under this Article VIII due to Buyer Indemnities will be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding determined: (i) was authorized net of all amounts recovered by Buyer Indemnities under any and all insurance policies or other collateral sources; and(ii) only for Losses thereafter in excess of the specific case by Indemnification Threshold up to but not in excess of the Board of Directors or Indemnification Cap (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;as defined below). (c) The Indemnifying Party’s indemnification obligations shall be limited to $500,000 (the Company “Indemnification Cap”), except with respect to any claim, assertion, event, or proceeding in respect of Sellers Taxes, which shall be governed by Article VI hereof and shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale so limited by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this AgreementIndemnification Cap.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) Notwithstanding anything in Section 8 to the obligations contrary, nothing contained herein shall protect or be deemed to protect any of the Indemnified Parties against, or entitle or be deemed to entitle any of the Indemnified Parties to indemnification in respect of, any Losses to the Company set forth or its security holders to which the Indemnified Parties would otherwise be subject primarily attributable to the willful misfeasance, bad faith or gross negligence in Section 2 the performance of the Indemnified Party’s duties or by reason of the reckless disregard of the Adviser’s or Sub-Adviser’s duties and obligations under this Agreement or any Sub-Advisory Agreement (to the extent applicable, as the same shall be subject determined in accordance with the 1940 Act and any interpretations or guidance by the SEC or its staff thereunder). In addition, notwithstanding any of the foregoing to the condition that contrary, the Reviewing Party provisions of Section 8 and this Section 9 shall not have determined be construed so as to provide for the indemnification of any Indemnified Party for any liability (based including liability under federal securities laws which, under certain circumstances, impose liability even on a written opinion of outside counsel persons that act in all casesgood faith), to the extent (but only to the extent) that Indemnitee such indemnification would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court violation of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not but shall be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (construed so as to which all rights effectuate the provisions of appeal therefrom have been exhausted or lapsedSection 8 and this Section 9 to the fullest extent permitted by law. (b) and Notwithstanding Section 8 to the contrary, the Company shall not provide for indemnification of an Indemnified Party for any liability or loss suffered by an Indemnified Party, nor shall the Company provide that any of the Indemnified Parties be obligated held harmless for any loss or liability suffered by the Company, unless all of the following conditions are met: (i) the Indemnified Party has determined, in good faith, that the course of conduct of such Indemnified Party giving rise to indemnify the loss or advance to Indemnitee any additional amounts covered by liability was in the best interests of the Company; (ii) the Indemnified Party has determined, in good faith, that the Indemnified Party was acting on behalf of or performing services for the Company; (iii) such Reviewing liability or loss was not the result of (A) negligence or misconduct, in the case that the Indemnified Party determination is a member of the Board of Trustees (unless there has been a determination other than an Independent Trustee), officer, employee, sponsor, Controlling Person (as defined in the Declaration of Trust) or agent of the Company or the Adviser and its Controlling Person, in each case, as determined by a court of competent jurisdiction in a final, non-appealable order, or (B) gross negligence or willful misconduct, in the case that the Indemnitee would Indemnified Party is an Independent Trustee; and (iv) such indemnification or agreement to hold harmless is recoverable only out of the Company’s net assets and not from the Company shareholders. Furthermore, the Indemnified Party shall not be permitted indemnified for any losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged material securities law violations as to be so indemnified under applicable law)the Indemnified Party; (bii) such claims have been dismissed with prejudice on the Company shall not be required to indemnify or advance Expenses merits by a court of competent jurisdiction as to the Indemnitee with respect to Indemnified Party; or (iii) a Proceeding (court of competent jurisdiction approves a settlement of the claims against the Indemnified Party and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the SEC and of the published position of any state securities regulatory authority in which Shares were offered or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right sold as to indemnification and/or advancement for violations of Expenses arising under this Agreement, the Certificate of Incorporation, the By-securities laws, the DGCL or otherwise;. (c) The Company may pay or reimburse reasonable legal expenses and other costs incurred by the Company shall not be obligated pursuant Indemnified Party in advance of final disposition of a proceeding only if all of the following are satisfied: (i) the proceeding relates to acts or omissions with respect to the terms performance of this Agreement to indemnify duties or services on behalf of the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheldCompany; (dii) the Indemnified Party provides the Company shall not be obligated pursuant to with written affirmation of such Indemnified Party’s good faith belief that the terms Indemnified Party has met the standard of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee conduct necessary for an accounting of profits made from the purchase or sale indemnification by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory lawCompany; (eiii) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision legal proceeding was initiated by a court having jurisdiction in the matter shall determine that such indemnification third party who is not lawfula Company shareholder, or, if by a Company shareholder acting in his or her capacity as such, a court of competent jurisdiction approves such advancement; and (fiv) the Indemnified Party provides the Company shall with a written agreement to repay the amount paid or reimbursed by the Company, together with the applicable legal rate of interest thereon, if it is ultimately determined that the Indemnified Party did not be obligated pursuant comply with the requisite standard of conduct and is not entitled to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementindemnification.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) The amount which an Indemnitor is required to pay to, for or on behalf of any Indemnified Person pursuant to this Section 10 (the obligations “Indemnity Payment”) shall be reduced by the amount of any Net Insurance Recovery (as defined below) made in respect thereof and the amount, if any, of claims, cross-claims, counterclaims or the like that are either received directly by the indemnified party or by the indemnifying party on behalf of the Company set forth in Section 2 shall be subject indemnified party and remitted to the condition that indemnified party as a direct result of the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses event giving rise to the Indemnitee claim for indemnification after deducting there from all fees, costs and expenses (including, without limitation, reasonable attorneys and disbursements) incurred in connection therewith. In such connection, an indemnified party shall fully cooperate with the indemnifying party in pursing and realizing all amounts which may reasonably be available from third persons. Nothing in this Section 10 shall (i) obligate any Indemnified Person to obtain or maintain insurance with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors any matters for which it is entitled to seek indemnification under this Agreement or (ii) brought obligate any Indemnitor to establish obtain or enforce a right maintain insurance with respect to indemnification and/or advancement of Expenses arising under this Agreementany matters for which it is obligated to provide indemnity hereunder or to prosecute or attempt to prosecute any claim, cross-claim, counterclaim or the Certificate of Incorporationlike against any party; provided that if, the By-lawsin fact, the DGCL or otherwise; (c) the Company such Indemnitor shall not be obligated pursuant to maintain any such insurance, it shall submit such claim in accordance with the terms of this Agreement to indemnify such insurance policy. Each Indemnitor hereby waives all rights of subrogation it may have against any insurer insuring the Indemnitee Indemnified Person in respect of any loss for any amounts paid which such Indemnitor has made an Indemnity Payment. “Net Insurance Recovery” shall mean the amount by which insurance proceeds actually recovered by an Indemnified Person in settlement respect of a Proceeding unless loss covered hereunder exceed 150% of the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale annual premium paid by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended Indemnified Person or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction its Affiliate in the matter shall determine that most recent fiscal year in respect of such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementinsurance.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (ai) the obligations of the The Company set forth in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law Stockholders shall not be binding entitled to indemnification from Parent, and Indemnitee Parent, Acquisition Co. and no member of the Parent Group shall not be required entitled to reimburse indemnification out of the Indemnity Escrow Amount, for amounts payable pursuant to the indemnification obligations in this Section 8.2 until the total of all such Damages incurred by the indemnified party exceed Fifty Thousand Dollars ($50,000) in the aggregate (the "Threshold Amount"), in which case the indemnified party shall be entitled to indemnification from the indemnifying party for all Damages due hereunder including the Threshold Amount; (ii) Except for actions by Parent and/or any member of the Parent Group and/or Acquisition Co. against the officers and directors of the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted fraud or lapsed) and intentional breach by the Company or its officers and directors, from and after the Effective Time, the indemnification provisions of Section 8.2 shall not be obligated to indemnify the exclusive remedy for Parent and/or any member of the Parent Group and/or Acquisition Co. for a breach of any representation, warranty or advance to Indemnitee any additional amounts covered covenant by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company in this Agreement and shall not be required to indemnify in lieu of any rights Parent and/or any member of the Parent Group and/or Acquisition Co. may have under law or advance Expenses to the Indemnitee in equity with respect to a Proceeding (any such breaches or part otherwise. Any and all claims, actions, or losses that Parent and/or the Parent Group and/or Acquisition Co. may have against the Company or the Company Stockholders, in the aggregate, shall be limited to and payable only up to the limit of the Indemnity Escrow Amount and Parent and/or the Parent Group and/or Acquisition Co. shall have no other recourse for any claims, actions or losses, whatsoever, in excess thereof) . The foregoing does not release the officers and directors of the Company, 44 50 individually, for any actions against such officers and directors for fraud or intentional breach by the Indemnitee (and not by way Company of defense)any representation, except if the commencement of such Proceeding (i) was authorized in the specific case warranty or covenant made by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under Company in this Agreement. (iii) Upon making any payments to Parent and/or any member of the Parent Group and/or Acquisition Co. for any indemnification claim pursuant to Section 8.2, the Certificate of IncorporationCompany Stockholders shall be subrogated, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received of such payment (under to Parent and/or any insurance policy or otherwise) member of the amounts otherwise indemnifiable under this AgreementParent Group and/or Acquisition Co., to any rights the Company may have against third parties with respect to the subject matter underlying such indemnification claim.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations An indemnified party shall not be entitled to assert later than September 30, 1997 any right of indemnification for any Damages suffered by it as a result of the Company falsity, inaccuracy, or breach of any representation or warranty (but not the breach of any covenant or agreement) by the indemnifying party set forth in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawherein; provided, provided however, that (i) any claim with respect to the falsity, inaccuracy, or breach of a representation or warranty with respect to (A) title to Assets may be brought at any time or (B) Taxes may be brought at any time prior to 30 days after the expiration of the applicable statute of limitations and (ii) if Indemnitee there shall then be pending any claim for such indemnification hereunder which has commenced or thereafter commences legal proceedings in a court of competent jurisdiction been asserted prior to secure a determination that Indemnitee should be indemnified under the applicable law, any determination made date by the Reviewing Party that Indemnitee would not be permitted indemnified party with reasonable specificity, the indemnified party shall continue to have the right to be indemnified under applicable law shall not be binding and with respect thereto. (b) A Buyer Indemnitee shall not be required entitled to reimburse the Company indemnification hereunder for any advancement Damages suffered by it as a result of Expenses until a final judicial determination is made with respect thereto (as to which all rights the falsity, inaccuracy, or breach of appeal therefrom have been exhausted any representation or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) warranty by the Indemnitee (Sellers unless the aggregate amount of Damages suffered by all Buyer Indemnitees for all such falsities, inaccuracies, and not by way of defense)breaches exceeds $25,000, except if and then the commencement Sellers shall be responsible only for the amount of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;Damages that exceeds $25,000. (c) the Company A Seller Indemnitee shall not be obligated pursuant entitled to the terms of this Agreement to indemnify the Indemnitee indemnification hereunder for any amounts paid in settlement Damages suffered by it as a result of a Proceeding the falsity, inaccuracy, or breach of any representation or warranty by Buyer unless the Company consents in advance in writing to aggregate amount of Damages suffered by all Seller Indemnitees for all such settlementfalsities, which consent inaccuracies, and breaches exceeds $25,000, and then Buyer shall not be unreasonably withheld;responsible only for the amount of such Damages that exceeds $25,000. (d) The aggregate amount to which an indemnified party shall be entitled to receive as indemnification under this Article XI shall be reduced by the Company shall not be obligated pursuant amount of all tax benefits or savings actually available to the terms of this Agreement to indemnify the Indemnitee on account and utilized by such party as a result of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase loss, liability, cost, expense, or sale by the Indemnitee of securities of the Company pursuant damage giving rise to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law;such indemnification. (e) Except as provided in Articles III, VI, and XIII, each of the Company parties acknowledges and agrees that, from and after the date of this Purchase Agreement, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Purchase Agreement shall not be obligated pursuant to the terms of indemnification provisions in this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this AgreementArticle XI.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations None of the Company set forth in Section 2 SmartServ Indemnified Parties shall be subject assert any Indemnification claim hereunder against any nReach Indemnifying Party until such time as, and solely to the condition that extent that, the Reviewing Party aggregate of all such claims which such parties may have against such nReach Indemnifying Parties shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);exceed $7,500. (b) None of the Company nReach Indemnified Parties shall not be required to indemnify or advance Expenses assert any Indemnification claim hereunder against SmartServ until such time as, and solely to the Indemnitee with respect to a Proceeding extent that, the aggregate of all such claims which the nReach Shareholders have against SmartServ shall exceed $7,500. (or part thereofc) by the Indemnitee (and not by way Notwithstanding any other term of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of IncorporationnReach Indemnifying Parties shall not, in the By-lawsaggregate, the DGCL be liable under this Article VI (or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, an amount which consent shall not be unreasonably withheld;exceeds $750,000. (d) At its sole option, in addition to all other rights and remedies that it may have, SmartServ shall have the Company shall not be obligated pursuant right to the terms of set off, in whole or in part, amounts owed under this Agreement Article VI to indemnify the Indemnitee on account of SmartServ by any suit in which judgment is rendered nReach Indemnifying Party, against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant Earnout Shares to the provisions of Section l6(b) of the Securities Exchange Act of 1934be issued to such nReach Indemnifying Parties hereunder, as amended or similar provisions of any federal, state or local statutory law;if any. (e) The parties have negotiated the Company indemnification rights, responsibilities and obligations set forth in this Article VI with the intention that this Article VI shall not be obligated constitute each of their sole and exclusive remedy with respect to any and all losses, costs, claims, damages, liabilities, expenses (including, without limitation, the reasonable legal fees and expenses), directly or indirectly, arising out of or relating to any of the following: (a) any misrepresentation, (ii) breach of warranty, or (iii) nonfulfillment of any covenant or other obligation; or (b) any conduct, action, inaction of any nReach Shareholder arising from or relating to the operation, management or ownership of nReach before the Closing Date, and in no event shall any nReach Shareholder (other than an nReach Shareholder who is also an nReach Indemnifying Party) have any liability to the SmartServ Indemnified Parties pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy Article VI, or otherwise) of the amounts otherwise indemnifiable under this Agreement.

Limitation on Indemnification. Notwithstanding any of the terms of Section 2foregoing, Sellers’ and the Company’s indemnifications shall be limited as follows: (a) The obligation to pay indemnification shall only commence once an Indemnified Party’s claim for indemnification, either as a standalone claim or combined with all other claims for indemnification, exceeds $50,000 (the obligations “Indemnification Threshold”) except with respect to any claim, assertion, event, or proceeding in respect of the Company set forth in Section 2 any Working Capital Adjustment, Post-Closing Adjustment or Seller Taxes, which shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made governed by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law Article VI hereof and shall not be binding and Indemnitee so limited by the Indemnification Threshold. Once the Indemnified Party’s claim for indemnification exceeds the Indemnification Threshold, the Indemnifying Party shall not be required to reimburse indemnify the Company Indemnified Party for any advancement of Expenses until a final judicial determination is made with respect thereto (as all amounts to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated Indemnified Party is entitled to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);indemnification thereafter. (b) the Company shall not The amount of any Losses subject to indemnification under this ARTICLE VIII due to Buyer Indemnities will be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding determined: (i) was authorized in the specific case net of all amounts recovered by the Board of Directors Buyer Indemnities under any and all insurance policies or other collateral sources (collectively “Insurance Coverage”); and (ii) brought only for Losses thereafter in excess of the Indemnification Threshold up to establish or enforce a right to indemnification and/or advancement but not in excess of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;Indemnification Cap. (c) The Indemnifying Party’s indemnification obligations shall be limited to 50% of the Company overall Purchase Price excluding any adjustments (the “Indemnification Cap”), except with respect to any claim, assertion, event, or proceeding in respect of Seller Taxes, which shall be governed by Article VI hereof and shall not be obligated pursuant to so limited by the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld;Indemnification Cap. (d) Any Claims of Buyer for indemnification or otherwise, except for those Claims described in Article VI, shall be satisfied as follows: (i) first, as offset from the Holdback, (ii), next, as offsets against the Guimaraes Installments, (iii) next, by reduction in any distributions, from and after the Closing, due to Guimaraes in his capacity as a Member of the Company and its successor, and (iv) from Guimaraes directly. Any indemnification payments made pursuant to this Agreement (including pursuant to a Claim described in Article VI), whether paid or recovered by an offset pursuant to this Section 8.07(d), shall not be obligated treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law. To the extent that any indemnifiable Claims are offset against or distributions as set forth herein, the offset will be treated and reported for Tax purposes as though payment pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits applicable distribution was made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision followed by a court having jurisdiction in the matter shall determine that such subsequent payment for indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementby Xxxxxxxxx.

Limitation on Indemnification. Notwithstanding anything to the terms of Section 2: (a) the obligations of the Company contrary set forth in Section 2 shall be subject 11.1(a) of this Agreement or elsewhere in this Agreement, (a) Purchaser hereby expressly waives, relinquishes and releases any right or remedy available to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable it at law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted in equity or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, in the Certificate event the Closing occurs, to make a claim against Seller for Losses that Purchaser may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of Incorporationany of Seller’s representations or warranties in Articles II or VIII hereof or in any Seller Subtenant Estoppel or Seller Tenant Estoppel being untrue, inaccurate or incorrect in any material respect if Purchaser has actual knowledge that such representation or warranty was untrue, inaccurate or incorrect at the By-lawstime of the Closing and Purchaser nevertheless proceeds with the Closing hereunder, (b) Seller’s liability for the DGCL breach of any representations or otherwise; warranties of Seller contained in Articles II or VIII or pursuant to Section 11.1(a)(i) of this Agreement, shall be limited to claims in excess of $1,500,000 in the aggregate; upon reaching such claims which exceed $1,500,000 in the aggregate, Purchaser may pursue such claims against Seller for Losses resulting from Seller’s breach of any representations and warranties under this Agreement (including the first $1,500,000 of such claims) and (c) the Company Seller’s aggregate liability for all claims arising out of any breach of such representations or warranties shall not exceed $62,100,000, except that there shall be obligated pursuant no cap on Seller’s liability for such breaches of the representations or warranties set forth in Sections 8.1(a), (b), or (c) hereof or in any Seller Tenant Estoppel or Seller Subtenant Estoppel. As used in this paragraph, the term “actual knowledge” of Purchaser shall mean the actual knowledge of Txxx Will with no duty of inquiry or investigation. Notwithstanding anything to the terms of contrary set forth in this Agreement Agreement, (a) Seller hereby expressly waives, relinquishes and releases any right or remedy available to indemnify the Indemnitee for any amounts paid it at law, in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase equity or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreement, in the event the Closing occurs, to make a claim against Purchaser for Losses that Seller may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of any of Purchaser’s representations or warranties in Section 11.1(b)(i) being untrue, inaccurate or incorrect if Seller has actual knowledge (as defined in Section 8.3 hereof) that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and Seller nevertheless proceeds with the Closing hereunder, and (b) Purchaser’s liability for breach of any representations or warranties of Purchaser contained in Article VIII hereof or pursuant to Section 11.1(b)(i) shall be limited to claims in excess of $1,500,000 in the aggregate. Upon reaching such claims which exceed $1,500,000 in the aggregate, Seller may pursue such claims against Purchaser for Losses resulting from Purchaser’s breach of any representations and warranties under this Agreement (including the first $1,500,000 of such claims). Purchaser’s aggregate liability for all claims arising out of any breach of such representations or warranties shall not exceed $62,100,000, except that there shall be no cap on Purchaser’s liability for breaches of the representations or warranties set forth in Sections 8.2(a), (b), or (c) hereof.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations of the Company set forth in Section 2 shall be subject to the condition presumption that Indemnitee is entitled indemnification here under unless the Reviewing Party shall not have determined (based on a written opinion of independent outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) is expressly required to be made by applicable law, and (ii) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of IncorporationPacto Social, the By-laws, the DGCL Panamanian law or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreement. (g) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a Court having jurisdiction in the matter shall determine that the actions that give rise to the Indemnification Event are proven to be the result of Indemnitee's willful misconduct or gross negligence.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations of the Company set forth in Section 2 shall be subject to the condition presumption that Indemnitee is entitled indemnification here under unless the Reviewing Party shall not have determined (based on a written opinion of independent outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) is expressly required to be made by applicable law, and (ii) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of IncorporationPacto Social, the By-laws, the DGCL Panamanian law or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreement. (g) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a Court having jurisdiction in the matter shall determine that the actions that give rise to the Indemnification Event are proven to be the result of Indemnitee’s willful misconduct or gross negligence.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) Indemnification by the obligations of the Company set forth in Section 2 Stockholders. (i) UAG Indemnified Party shall be subject entitled to indemnification in connection with a Xxxx Event of Breach only if the condition that aggregate Costs incurred or sustained by all UAG Indemnified Parties in connection with all Xxxx Events of Breach exceed the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawBasket; provided, however, that notwithstanding the preceding limitation, a UAG Indemnified Party shall be entitled to indemnification for all Costs incurred or sustained by such UAG Indemnified Party as a result of any untruth or inaccuracy in, or breach of, a representation, warranty or covenant (or failure to perform or observe any term, agreement or condition) contained in Article 1 or Sections 2.3, 2.4(a), 2.4(b)(i), 3.1 and 10.2 hereof or arising out of an act of fraud by Mize, Dyer, or Mize Ford. (ii) A UAG Indemnified Party shall be entitled to indemnification in connection with a Xxxx Event of Breach only if Indemnitee has commenced the aggregate Costs incurred or thereafter commences legal proceedings sustained by all UAG Indemnified Parties in connection with all Xxxx Events of Breach exceed the applicable Basket; provided, however, that notwithstanding the preceding limitation, a court UAG Indemnified Party shall be entitled to indemnification for all Costs incurred or sustained by such UAG Indemnified Party as a result of competent jurisdiction any untruth or inaccuracy in, or breach of, a representation, warranty or covenant (or failure to secure a determination that Indemnitee should be indemnified under applicable lawperform or observe any term, any determination made agreement or condition) contained in Article 1 or Sections 2.3, 2.4(a), 2.4(b)(i), 3.1 and 10.2 hereof or arising out of an act of fraud by Arnold, Billings, Xxxx Xxxx or Xxxxxx Xxxx. (iii) The aggregate Costs for which the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law Stockholders shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company UAG Indemnified Parties shall not be required to indemnify or advance Expenses to exceed the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized applicable Cap in the specific case of Costs incurred or sustained by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment all UAG Indemnified Parties in connection with a Xxxx Event of Breach or a Xxxx Event of Breach; provided, however, that a UAG Indemnified Party shall be entitled to indemnification for all Costs incurred or sustained by such UAG Indemnified Party as a result of any Proceeding untruth or inaccuracy in, or breach of, a representation, warranty or covenant (or failure to perform or observe any term, agreement or condition) contained in Article 1 or Sections 2.3, 2.4(a), 2.4(b)(i), 2.8, 2.11, and 3.1 hereof or arising out of an act of fraud by the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this AgreementStockholders.

Limitation on Indemnification. Notwithstanding Neither Seller nor Buyer shall be liable to the terms other in respect of Section 2: any indemnification hereunder (a) except to the obligations extent that the aggregate Losses of the Company set forth in Section 2 party to be indemnified under this Agreement exceed Fifty Thousand Dollars ($50,000) (the "Basket Amount"), whereupon the party to be indemnified shall be subject entitled to indemnification from the condition that other party hereunder for all Losses suffered or incurred by the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted party to be so indemnified under applicable lawindemnified; provided, however, that if Indemnitee has commenced any Losses of Buyer in respect of (i) Seller's Taxes, (ii) Seller's failure to comply with any bulk transfer law in accordance with Section 6.2.9, or thereafter commences legal proceedings (iii) Buyer's compliance with its indemnification obligation set forth in a court clause (iii) in the proviso of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law third sentence of Section 15.7 shall not be binding subject to the Basket Amount; and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) for any Losses which exceed in the Company aggregate One Million Dollars ($1,000,000) (the "Cap"). The parties further agree that any Losses received by the Indemnified Party hereunder shall not be required to indemnify or advance Expenses to net of any insurance proceeds received by the Indemnitee Indemnified Party with respect to the event giving rise to the Losses. The parties hereto acknowledge and agree that it is their intention that no standard of materiality or reasonableness shall be implied (by law, in equity or otherwise) in any representation, warranty, covenant or other agreement of Seller or Buyer contained in this Agreement or the other agreements executed by or on behalf of Seller or Buyer in connection herewith, unless such a Proceeding (standard is expressly set forth in such representation, warranty, covenant or part thereof) by agreement. Following the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this AgreementClosing, the Certificate of Incorporation, the By-laws, the DGCL sole and exclusive remedy for Buyer or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee Seller for any amounts paid in settlement claim arising out of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account breach of any suit in which judgment is rendered against representation, warranty, covenant or other agreement contained herein or the Indemnitee for an accounting other Buyer Documents or Seller Documents or otherwise arising out of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy transactions contemplated by this Agreement or the other Buyer Documents or Seller Documents, whether such claim is framed in tort, contract or otherwise) of the amounts otherwise indemnifiable under , shall be a claim for indemnification pursuant to this AgreementSection 12.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) Notwithstanding anything to the obligations contrary contained in this Agreement, except in the case of fraud or intentional breach of any covenant contained herein, no Parent Indemnitee shall be entitled to indemnification pursuant to Section 8.2, unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Equity Holders as a group equals or exceeds One Million Five Hundred Thousand Dollars ($1,500,000) (the “Deductible”), in which case the Equity Holders shall be liable only for the amount of the Company set forth Losses in Section 2 shall be subject to excess of the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawDeductible; provided, however, that if Indemnitee has commenced (i) until such time as the Parent Indemnitees have incurred indemnifiable Losses in an amount equal to or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable lawgreater than the Deductible, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and no Parent Indemnitee shall not be required have any right to reimburse the Company for any advancement of Expenses until a final judicial determination is made indemnification with respect thereto to any individual Loss (as to which all rights shall include any Loss or Losses submitted for indemnification that arise from the same or a reasonably related set of appeal therefrom have been exhausted underlying facts or lapsedcircumstances) that is less than Five Thousand Dollars ($5,000) and no such Loss shall be taken into account in determining whether, or to what extent, the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there Deductible has been a determination by a court of competent jurisdiction met or exceeded and (ii) from and after the time that the Indemnitee would Parent Indemnitees have incurred indemnifiable Losses in an amount greater than the Deductible, no Parent Indemnitee, shall have any right to indemnification with respect to any individual Loss (which shall include any Loss or Losses submitted for indemnification that arise from the same or a reasonably related set of underlying facts or circumstances) that is less than Twenty Thousand Dollars ($20,000). Notwithstanding the foregoing, neither the Deductible nor the limitations contained in the foregoing clauses (i) and (ii) of this Section 8.4(a) shall be permitted applicable to be so indemnified under applicable law);any breach of the representations and warranties contained in Section 3.2(b) or Section 3.14. (b) Notwithstanding anything to the contrary contained herein, except in the case of fraud or intentional breach of any covenant contained herein, the maximum aggregate amount that may be recovered for indemnification pursuant to Section 8.2 shall be an amount equal to the lesser of (x) the Indemnity Escrow Amount and (y) the aggregate amount from time to time on deposit in the Indemnity Escrow Account; provided, however, that the limitation contained in this Section 8.4(b) shall not apply to any claim for indemnification (x) pursuant to clause (i) of Section 8.2 in respect of (A) any breach of the representations and warranties made by the Company shall not be required to indemnify in Section 3.2(b) or advance Expenses to (B) any breach of the Indemnitee with respect to a Proceeding representations and warranties made by the Company herein which (or part thereofI) is “cured” for purposes of Section 6.2(b) by the Indemnitee Company’s delivery of a written amendment to the Company Disclosure Letter pursuant to Section 5.4(b) or (and not by way of defense), except if the commencement of such Proceeding (iII) was authorized in the specific case is disclosed by the Board of Directors Company pursuant to Section 5.4(a); or (y) pursuant to clause (ii) brought to establish of Section 8.2 in respect of any breach of the covenants contained in Section 5.3(b) or enforce a right to indemnification and/or advancement Section 5.4(a) or any covenant of Expenses arising under this Agreementthe Stockholders’ Representative that, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms thereof, contemplates performance after the Closing. In addition to, and not in lieu of, the other limitations contained in this Section 8.4, the maximum aggregate amount that may be recovered for indemnification pursuant to clause (iii) of this Agreement Section 8.2 shall be an amount equal to indemnify the Indemnitee for any amounts paid in settlement lesser of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (dx) Eight Million Six Hundred Thirty Thousand Nine Hundred Thirty-Two Dollars ($8,630,932.00) and (y) the Company shall not be obligated pursuant aggregate amount from time to the terms of this Agreement to indemnify the Indemnitee time on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction deposit in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this AgreementIndemnity Escrow Account.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations of the Company set forth in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law, or for any claim made against Indemnitee for reimbursement to the Company of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, in each case as required under the Exchange Act if Indemnitee is held liable therefor or in respect of claw-back provisions promulgated under the rules and regulations of the Securities and Exchange Commission pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreement.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations of the Company set forth in Section 2 shall be subject Subject to the condition that immediately following sentence, (i) the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee Seller shall not be required to indemnify, defend or hold harmless any Injured Party from or against, or reimburse any Injured Party for, any Losses pursuant to Section 6.2(b) unless and until the Company for aggregate amount of all such Losses exceeds $15,000 (the “Deductible”) and (ii) under no circumstances shall the aggregate liability of Seller to indemnify, defend or hold harmless any advancement Injured Party from or against, or reimburse any Injured Party for, any Losses pursuant to this ARTICLE 6 ever exceed the Final Purchase Price actually paid by Buyer to Seller pursuant to this Agreement (the “Cap”). Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to Losses arising under or related to Section 6.2(b) due to a breach of, or inaccuracy in, any Fundamental Representation. For greater certainty, neither the Deductible nor the Cap shall apply to Losses arising under or related to Section 6.2(a), Section 6.2(c) or Section 6.2(d). (b) Notwithstanding anything to the contrary in this Agreement, under no circumstances shall the Seller have any obligation to indemnify, defend or hold harmless any Injured Party from or against, or reimburse any Injured Party for, any Losses to the extent such Losses have already been taken into account in calculating, and deducted from, any amount otherwise payable by Buyer hereunder, including the Final Purchase Price. The intention of Expenses until this provision is to avoid double-counting of Losses to the extent that a final judicial determination is made payment or credit with respect thereto has already been included in any calculation of the Final Purchase Price. (as c) All Losses to which all rights a Buyer Injured Party is entitled to indemnification from the Seller hereunder shall be recovered first from the Escrow Amount; provided, however that, to the extent a Buyer Injured Party does not fully recover a Loss arising under Section 6.2 from the Escrow Amount, the Buyer Injured Party (x) shall be entitled to recover the remaining portion of appeal therefrom have been exhausted or lapsedsuch Loss from the Seller. (d) On June 24, 2021 (the “Escrow Release Date”), the Buyer and the Company Seller shall provide a joint written instruction to the Escrow Agent to release any remaining portion of the Escrow Amount remaining in the Escrow Account to the Seller; provided, that if prior to the Escrow Release Date, the Buyer notifies the Escrow Agent in writing that all or a portion of the Escrow Amount is subject to claims under Section 6.2 that have not been finally determined (the “Outstanding Claims”), the amount released by the Escrow Agent from the Escrow Account on the Escrow Release Date will be equal to the amount of the Escrow Amount then held by the Escrow Agent, less the sum of any amounts subject to the Outstanding Claims. (e) Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnifying Party shall, in any event, be obligated to indemnify any Injured Party from and against punitive or advance to Indemnitee exemplary damages of such Injured Party, or any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall damages not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) reasonably foreseeable by the Indemnitee Indemnifying Party (and not by way other than in respect of defenseamounts payable to third parties), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and. (f) the Company The Injured Party shall not be obligated pursuant use commercially reasonable efforts to mitigate any Loss (including by using its commercially reasonable efforts to obtain any applicable insurance proceeds) and to obtain or use any Tax savings, benefit, relief, deduction or credit available to the terms of Injured Party. (g) Notwithstanding anything in this Agreement to make the contrary, for purposes of the Parties’ indemnification obligations under this ARTICLE 6, all of the representations and warranties set forth in this Agreement (except in the case of the representations and warranties set forth in Sections 3.3, and 3.4(a)) or any payment in connection with any Proceeding certificate or Schedule to the extent Indemnitee Disclosure Letter that are qualified by any materiality, Material Adverse Effect or other similar qualification shall be deemed to have been made without any such qualification for purposes of determining (i) whether a breach of or inaccuracy in such representation or warranty has otherwise actually received payment occurred, and (under ii) the amount of Losses resulting from, arising out of or relating to any insurance policy such breach of or otherwise) of the amounts otherwise indemnifiable under this Agreementinaccuracy in such representation or warranty.

Limitation on Indemnification. Notwithstanding any other provision in this Agreement to the terms of Section 2contrary, the Company’s obligation to indemnify Indemnitee is limited as follows: (a) 1. Indemnification under this Agreement shall only be provided if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the obligations best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful. 2. Indemnification under this Agreement shall be made by the Company only upon a determination that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the qualifications required under Section II.A, above, and the applicable standard of conduct set forth in this Section 2 II.B. 3. The Company shall not be subject obligated pursuant to this Agreement to indemnify Indemnitee: a. with respect to what would otherwise be an Indemnified Expense under this Agreement if, and to the condition that extent that, Indemnitee is entitled to and receives payment with respect to such Indemnified Expense under any insurance policy, contract, or other agreement; b. with respect to an action, suit or proceeding initiated by Indemnitee, unless such action, suit or proceeding was authorized or consented to by the Reviewing Party shall not have determined (based on a written opinion Board of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawDirectors of the Company; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law this Section II.B.3.b shall not be binding and Indemnitee shall not be required apply to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted an action, suit or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) proceeding brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee ; c. for any amounts paid in settlement of a any Indemnified Proceeding unless without the Company consents in advance in writing to such settlementCompany’s prior written consent, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of d. for any suit in which judgment is rendered against the Indemnitee for an payment or accounting of profits made arising from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions in violation of Section l6(b16(b) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), or any similar provisions successor statute; provided, however, that nothing in this subsection (d) is intended to or shall be interpreted to excuse the Company from indemnifying Indemnitee for attorneys’ fees and other reasonable expenses incurred in defending Indemnitee against any such claim under Section 16(b) if and to the extent the Company would otherwise have an obligation to do so under this Agreement; e. for any reimbursement of the Company by the Indemnitee of any federalbonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, state or local statutory law;as required in each case under the Exchange Act (including without limitation under the Xxxxxxxx-Xxxxx Act of 2002); or, (e) the Company shall not be obligated pursuant f. with respect to the terms of this Agreement to indemnify Indemnified Expenses incurred by the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with an action, suit or proceeding instituted by the Indemnitee to establish or enforce a right to indemnification under this Agreement if a court of competent jurisdiction determines that such action, suit or proceeding was not instituted in good faith or was frivolous. 4. In the case of any Proceeding action or suit by the Company seeking to procure a judgment in its favor against Indemnitee by reason of the fact that Indemnitee is or was serving in an Indemnified Capacity, no indemnification shall be made with respect to any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Company pursuant to a final judgment not subject to further appeal unless, and only to the extent Indemnitee has otherwise actually received payment (under any insurance policy that, the Delaware Court of Chancery or otherwise) the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the amounts otherwise indemnifiable under this Agreementcase, Indemnitee is fairly and reasonably entitled to indemnity with respect to such portion of the Indemnified Expenses which the Delaware Court of Chancery or such other court shall deem proper.

Limitation on Indemnification. Notwithstanding The indemnification provided for in Section 11.1 shall be subject to the terms of Section 2following limitations: (a) The Seller shall not be obligated to make any payment for indemnification pursuant to Section 11.1 in respect of any General Claim (except those based upon, arising out of or otherwise in respect of Sections 4.1, 4.2, 4.3, 4.5, 4.13.1, and 4.21 (the obligations "BASKET EXCLUSIONS")) until the aggregate amount of such payments, exclusive of those in respect of the Company set forth in Section 2 Basket Exclusions, exceeds $200,000 (the "BASKET AMOUNT"), whereupon the Seller shall be subject obligated to pay all such amounts for indemnification in excess of the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawBasket Amount; provided, however, that if Indemnitee has commenced solely for determining whether the amount of the Seller's indemnification obligations exceed $200,000 in the aggregate, a breach of the Seller's representations or thereafter commences legal proceedings in a court of competent jurisdiction warranties shall be determined without regard to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (limitation or qualification as to which all rights of appeal therefrom have been exhausted materiality set forth in such representation or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);warranty. (b) The Buyer shall be entitled to receive any indemnification payments in respect of the Company shall not be required to indemnify or advance Expenses Basket Exclusions without regard to the Indemnitee with respect individual or aggregate amounts thereof and without regard to a Proceeding (or part thereof) by whether the Indemnitee (and not by way aggregate of defense)all other indemnification payments shall have exceeded, except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreementaggregate, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;Basket Amount. (c) Other than with respect to Tax/Benefit Claims, the Company Seller's maximum liability for indemnification payments under this Article 11 shall not be obligated pursuant to Five Million Dollars ($5,000,000). The first Three Million Dollars ($3,000,000) of indemnification payment shall be made in cash and the terms Second Two Million Dollars ($2,000,000) may at Seller's election be made in Ithaca Common Stock valued at the Market Price Per Share (as defined in Section 3.1(b)) computed as of this Agreement to indemnify the Indemnitee date the respective claim for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld;indemnification is made. (d) In the Company shall not be event that the Indemnifying Party is obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against Indemnified Party pursuant to this Article 11 or Article 12 below, the Indemnitee for an accounting of profits made from the purchase or sale Loss shall be reduced by the Indemnitee of securities of amount actually received by the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law;Indemnified Party from its insurance carriers. (e) From and after the Company shall not be obligated pursuant to Closing Date, the terms remedies provided in Section 9.8, Section 14.13 and Articles 11 and 12 of this Agreement shall be exclusive and neither party shall be entitled to indemnify the Indemnitee if a final decision by a court having jurisdiction any other remedy at law or in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementequity.

Limitation on Indemnification. Notwithstanding anything to the terms of Section 2contrary contained in this Agreement: (a) neither the obligations Purchaser Indemnitees nor the Seller Indemnitees, as the case may be, shall be entitled to indemnification pursuant to Section 6.2(a) or Section 6.3(a), as the case may be, for any Losses unless and until the aggregate amount of Losses suffered, incurred or paid by the Purchaser Indemnitees or the Seller Indemnitees, as the case may be, equal or exceed $100,000 (the “Deductible”), in which case the Purchaser Indemnitees (as a group) or the Seller Indemnitees (as a group), as the case may be, shall only be entitled to indemnification for the aggregate amount of such Losses in excess of the Company set forth in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law)Deductible; (b) the Company limitations set forth in Section 6.4(a) shall not be required apply to indemnify Losses suffered, incurred or advance Expenses to the paid by any Purchaser Indemnitee or any Seller Indemnitee in connection with respect to a Proceeding or arising from any breach of any Fundamental Representation or any representation or warranty in Section 2.12 (or part thereof) by the Indemnitee (and not by way of defenseTax Matters), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not maximum aggregate amount of indemnifiable Losses which may be obligated recovered for indemnification pursuant to (i) Section 6.2 and Section 5.4 shall be the terms of this Agreement to indemnify Indemnity Escrow Amount and (ii) Section 6.3 shall be the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheldPurchaser Indemnification Amount; (d) the Company Purchaser Indemnitees shall not be obligated entitled to indemnification with respect to any specific claim pursuant to Section 6.2(a) if Seller is able to demonstrate that Xxxxxxx Xxxxxxxx had actual knowledge as of the date hereof that the representation or warranty applicable to such claim was breached when made; provided, that notwithstanding the foregoing, the Purchaser Indemnitees shall remain entitled to indemnification for such claim if Purchaser is able to demonstrate that any of Xxxx Xxxx, Xxxx Xxxxxxx, Xxxx Xxxxx or Xxxxxxx Bang had actual knowledge as of the date hereof that such representation or warranty was breached when made; and (e) (i) the sole and exclusive remedy of the Purchaser Indemnitees with respect to any indemnification claim under Section 6.2 shall be the right to be paid out of the Indemnity Escrow Amount, if any, in accordance with the terms of this Agreement Agreement, and (ii) on the date that the Indemnity Escrow Amount is reduced to indemnify the zero, Seller shall not have any further liability to any Purchaser Indemnitee on account in respect of any suit in which judgment is rendered against indemnification claim made under Section 6.2 and the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant Purchaser Indemnitees shall have no further rights to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementhereunder.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) In the obligations absence of the Company set forth in Section 2 fraud or bad faith, each Seller’s maximum Liability to Buyer for Losses under this Agreement shall be subject the aggregate amount paid by Buyer in cash and Buyer Common Stock to such Seller from time to time under this Agreement (the condition that the Reviewing Party “Cap”). (b) All indemnification payments made by Sellers to Buyer hereunder shall not have determined (based on a written opinion of outside counsel be payable in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawcash; provided, however, that if Indemnitee has commenced one or thereafter commences legal proceedings more Sellers still hold shares of Buyer Common Stock issued hereunder, then such Sellers can return all or a portion of such shares of Buyer Common Stock issued hereunder, as applicable, to cover such indemnification obligation. For purposes of the calculation of the number of shares of Buyer Common Stock to be returned to Buyer in the event of an indemnification obligation hereunder, the Sellers shall return to Buyer a court number of competent jurisdiction shares of Buyer Common Stock, free and clear of all Liens, equal to secure a determination that Indemnitee should the dollar value of the Losses to be indemnified under applicable law, any determination made paid with such stock divided by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement higher of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by VWAP Price of the Board Buyer Common Stock on the particular issuance date of Directors such Buyer Common Stock, or (ii) brought the VWAP Price as of the date of the indemnification notice issued by Buyer to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;Seller Representative. (c) No indemnification shall be made to any Buyer Indemnified Party or any Seller Indemnified Party under Sections 8.2 and 8.3 hereto unless and until the Company shall not be obligated pursuant to aggregate amount of Losses by such indemnitee with respect thereto exceeds $20,000 (the terms “Losses Deductible”). (d) Notwithstanding any other provision of this Agreement to indemnify the Indemnitee contrary, the indemnification obligations of any Seller for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlementLosses resulting from fraud or intentional misrepresentation or any Tax matters, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant subject to the terms of this Agreement to indemnify Losses Deductible or the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law;Cap. (e) the Company shall not be obligated pursuant If there is a Loss incurred with respect to the terms of this Agreement to indemnify Company's Business during any Earn-Out Period described in Sections 1.2(d)(ii), (iii) or (iv) and such Loss reduces the Indemnitee if a final decision EBITDA generated by a court having jurisdiction in the matter shall determine that Company's Business during such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding Earn-Out Period, to the extent Indemnitee has otherwise actually received the Sellers make an indemnification payment to Buyer with respect to such Loss (under whether directly or through an offset to any insurance policy or otherwise) Earn-Out Payment in respect of such Earn-Out Period), then the amounts otherwise indemnifiable under this Agreementamount of such indemnification payment shall be added to the EBITDA generated by the Company's Business during such Earn-Out Period, but only to the extent that such Loss reduced the EBITDA generated by the Company's Business during such Earn-Out Period.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) Notwithstanding any other term or condition contained herein or in any other agreement or instrument referred to herein, the indemnification obligations of each Stockholder under Section 7.1(a)(i) - (vii) shall be limited, in the aggregate, to the dollar value on the Closing Date of the Merger Consideration paid to such Stockholder reduced by any amount deducted as a Deductible Expense of such Stockholder under Section 4 of Appendix A of the Services Agreement resulting from any Tax Liabilities of the Company, if, but only if, the Company set forth in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (has filed all tax returns based on a written opinion the good faith determination of outside counsel in its accountants and paid all cases) that Indemnitee would not be permitted taxes shown to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court due thereon through the taxable year ending on the date of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);Merger. (b) the Company Notwithstanding any other term or condition contained herein, PQC shall not be required entitled to indemnify any indemnification pursuant to Section 7.1(a)(v), (vi) or advance Expenses to the Indemnitee (vii) with respect to a Proceeding any Damages where the indemnitor (or part thereofin the case of the Company, a member of the management committee) by did not have knowledge of the Indemnitee (liability giving raise to such Damages prior to the Closing Date, if, and not by way of defense)only if, except if the commencement an amount equal to 100% of such Proceeding Damages (isubject to the limitation in Section 7.5(a)) was authorized is included as a Practice Expense of Pod R pursuant to the Services Agreement and PQC or Flagship, as in the specific case by may be, is actually reimbursed for 100% of such Damages (subject to the Board limitation in Section 7.5(a)) in accordance with terms of Directors the Services Agreement. Notwithstanding any other term or condition contained herein, PQC shall not be entitled to any indemnification pursuant to Section 7.1(a) with respect to the tax liability set forth on Schedule 7.5(b) provided that PQC is reimbursed for such tax liability -------- ------ over a period of three years (iior such longer period as the Internal Revenue Service may agree) brought to establish or enforce a right to indemnification and/or advancement out of Expenses arising under this the Pod R Account as such term is defined in the Services Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;. (c) No Indemnified Party shall be indemnified and held harmless under this Article VII from and against any Damages unless the Company Damages exceed on a cumulative basis an amount equal to $250,000, in which case an Indemnitor shall not be obligated pursuant liable only for Damages in excess of $250,000. The foregoing limitation shall apply to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlementCompany, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934Stockholders, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction and Optionholders in the matter shall determine that such indemnification is aggregate and not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementindividually.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations of the Company set forth anything in Section 2 shall be subject this Agreement to the condition that contrary, the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company Corporation shall not be obligated to indemnify Indemnitee: (i) for any amount that has actually been paid to or advance to on behalf of Indemnitee under any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law)insurance policy, bond, contract, agreement or otherwise; (bii) for any amount that has been advanced to Indemnitee by an insurance company or bonding company, with such advance being secured by Indemnitee’s right to indemnification payments from the Company shall not be required to indemnify Corporation; (iii) on account of Indemnitee’s acts or advance Expenses omissions if a final adjudication establishes that such acts or omissions involved bad faith, active and deliberate dishonesty, intentional misconduct, fraud or a knowing violation of law and were material to the cause of action, or, in the case of a criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was illegal; (iv) on account of any transaction with respect to which Indemnitee is finally adjudged to have received an improper personal benefit in money, property or services; (v) with respect to a Proceeding initiated by Indemnitee, unless it was (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (iiA) brought to establish or enforce a right to indemnification and/or advancement (in which case clause (vi) below shall govern) or (B) authorized by the Board of Expenses arising under Directors; (vi) with respect to a Proceeding instituted by Indemnitee to enforce or interpret this Agreement, except to the Certificate of Incorporationextent that (A) Indemnitee is successful in establishing Indemnitee’s right to indemnification in such Proceeding or (B) the court in such Proceeding determines that, despite Indemnitee’s failure to establish the By-lawsright to indemnification, the DGCL or otherwiseIndemnitee is entitled to indemnity; (cvii) with respect to any threatened, pending or completed action or suit by or in the Company shall not right of the Corporation to procure a judgment in its favor against Indemnitee if Indemnitee is adjudged to be obligated pursuant liable to the terms Corporation unless, and only to the extent that, the court in such action or suit determines upon application that, despite the adjudication of this Agreement liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheldindemnity; (dviii) the Company shall not be obligated pursuant with respect to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(bshort-swing trading liability under section 16(b) of the Securities Exchange Act of 1934, as amended amended, or similar provisions of any federal, state or local statutory lawsuccessor statute; (eix) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding or claims for the enforcement of Indemnitee’s noncompete, nondisclosure or other contractual obligations owed to the Corporation or any Covered Entity, unless Indemnitee is successful in the defense of such claim or Proceeding; or (x) to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementindemnification is prohibited by applicable law, including applicable banking law and regulations.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) Notwithstanding the obligations provisions of this Article VIII, after the Closing, in no event shall the aggregate liability of the Company Seller and ODP under Section 8.2 or Buyer under Section 8.3 exceed the Purchase Price. (b) Any claim for Damages required to be made on or prior to the expiration of the applicable survival period set forth in Section 2 8.1, and not made, shall be irrevocably and unconditionally released and waived by the Party seeking indemnification with respect thereto. It is the express intent of the Parties that, if the applicable period for an item as contemplated by this Section 8.5 is shorter than the statute of limitations that would otherwise have been applicable to such item, then, by contract, the applicable statute of limitations with respect to such item shall be reduced to the shortened survival period contemplated hereby. The Parties further acknowledge that the time periods set forth in this Section 8.5 for the assertion of claims, under this Agreement are the result of arms’ length negotiation among the Parties and that they intend for the time periods to be enforced as agreed by the Parties. (c) The amount of any Damages for which indemnification is provided under this Article VIII shall be net of any amounts actually recovered or recoverable by the Indemnified Party under insurance policies or indemnity or contribution agreements or otherwise with respect to such Damages. The Indemnified Party shall seek full recovery under all insurance policies covering any Damages to the same extent as it would if such Damages were not subject to indemnification hereunder. In the condition event that an insurance or other recovery is made by any party with respect to any Damages for which any such Person has been indemnified hereunder and has received funds in the Reviewing amount of the Damages or portion thereof, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Indemnifying Party. (d) No Buyer Indemnified Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted entitled to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction indemnification pursuant to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made this Article VIII with respect thereto (as to any matter of which all rights of appeal therefrom have been exhausted Buyer, Gigante Sub or lapsed) and ODM, respectively, had knowledge or waived prior to the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Closing. An Indemnifying Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses any Indemnified Party to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account extent of any suit in which Damages that a court of competent jurisdiction or arbitrator shall have determined by final judgment is rendered against the Indemnitee for an accounting of profits made to have resulted from the purchase fraud, gross negligence or sale by the Indemnitee of securities willful misconduct of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law;party seeking indemnification. (e) In calculating the Company amount of Damages under this Article VIII which are subject to indemnification under Sections 8.2 or 8.3, there shall not be obligated pursuant deducted an amount equal to any Tax benefit to the terms party claiming such Damages or to any of this Agreement its Affiliates from being able to indemnify claim a Tax loss or Tax credit as a result of such Damages. The amount of any such Tax benefit shall reflect the Indemnitee if a final decision by a court having jurisdiction present value of such Tax benefit (whether realized in the matter shall determine that such year the indemnification payment is not lawful; andmade or later), computed as of the date of any indemnification payment. (f) Notwithstanding anything to the Company contrary in this Agreement, no party shall, in any event, be liable to any other Person for any consequential, incidental, indirect, special or punitive damages, loss of revenue, income or profits, diminution of value or loss of business reputation or opportunity and no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall not be obligated used in calculating the amount of any Losses. (g) In the event of any breach giving rise to an indemnification obligation under this Article VIII, the Indemnified Party shall take and cause its Affiliates to take, or cooperate with the Indemnifying Party if so requested by the Indemnifying Party in order to take, all commercially reasonable measures to mitigate the consequences of the related breach. (h) Notwithstanding anything in this Agreement, any amounts payable pursuant to the terms indemnification obligations under this Article VIII shall be paid without duplication and in no event shall any party hereto be indemnified under different provisions of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has for Damages which have already been paid or otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable taken into account under this Agreement. (i) The Parties agree to treat any indemnity payment made pursuant to this Article VIII as an adjustment to the Purchase Price for federal, state, local and foreign income Tax purposes.

Limitation on Indemnification. Notwithstanding It shall be a defense by the terms Corporation to any claim for indemnification (other than a claim for expenses incurred in defending any proceeding in advance of Section 2: (a) its final disposition where the obligations of required undertaking, if any, has been tendered to the Company Corporation as set forth in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion 5 of outside counsel in all casesthis Agreement) that Indemnitee would has not met the standard of conduct which make it permissible under Delaware Law for the Corporation to indemnify Indemnitee for the amount claimed. The determination as to whether the applicable standard of conduct has been met shall be made in accordance with Delaware law. Unless the Corporation and the Indemnitee agree within ten (10) business days of receipt of written notice of a request for indemnification pursuant to Section 3 that the applicable standard has been met, the determination shall be made by independent legal counsel licensed to practice in Delaware recommended by the Corporation and approved by the Indemnitee, which approval shall not be permitted unreasonably withheld. The determination of counsel shall be set forth in a written opinion. If the determination of such counsel is that the standard of conduct was not met Indemnitee shall have the right to appeal to a court of competent jurisdiction and all costs and expenses shall be indemnified by the Corporation if the determination of such counsel is overturned and the Corporation shall advance expenses in connection with any such appeal in accordance with Section 5 hereof. The parties shall cooperate to cause such determination to be so indemnified under made expeditiously. Notwithstanding the above, if the Corporation has not recommended Delaware counsel within fifteen (15) business days of receipt of the written notice of a request for indemnification, the applicable lawstandard of conduct shall be deemed to have been met; provided, however, that if Indemnitee the Corporation can demonstrate that it has commenced or thereafter commences legal proceedings made a good faith, diligent effort to find counsel willing to serve in a court such capacity but has been unsuccessful in doing so, it shall have an additional 15 business days (commencing at the expiration of competent jurisdiction the initial 15 business-day period) to secure retain such independent counsel before the applicable standard shall be deemed to have been met. All expenses related to the independent counsel shall be paid by the Company. The failure to have made a determination prior to the commencement of any such action that indemnification of Indemnitee should be indemnified under is proper because the applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law standard of conduct has been met shall not be binding and a defense to such action or create a presumption that Indemnitee shall has not be required to reimburse met the Company for any advancement applicable standard of Expenses until a final judicial conduct. Once the determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction made that the Indemnitee would be permitted to be so indemnified applicable standard has been met, any indemnification payment then due or that thereafter becomes due under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms Section 1 of this Agreement to indemnify shall be made promptly, and in any event within 20 days, after such determination or the Indemnitee for any amounts paid in settlement of date that a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934subsequent payment becomes due, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementcase may be.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) Notwithstanding any provision of this Agreement to the obligations contrary, after the Closing Date, the Indemnifying Parties shall have no obligation to indemnify any Indemnified Party until the aggregate of all Losses suffered by the Company set forth Indemnified Parties exceeds $50,000 (the “Basket Amount”), in Section 2 which case an Indemnified Parties shall be subject entitled to recover all Losses including the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawBasket Amount; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction any amounts required to secure a determination that Indemnitee should be indemnified under applicable law, paid resulting from any determination made failure by the Reviewing Party that Indemnitee would not be permitted Company or the Key Stockholder to be indemnified under applicable law perform or comply with any covenant contained in the Transaction Documents shall not be binding subject to such Basket Amount; and Indemnitee shall not be required to reimburse the Company for provided further, however, that any advancement Losses incurred by any Indemnified Party as a result of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized any breach or inaccuracy of the representations contained in the specific case by the Board of Directors Section 3.25, or (ii) brought any fraudulent or willful breach by the Company or any Equity Holder of any representation or warranty contained in (A) this Agreement (without giving effect to establish any update of the Disclosure Schedules), (B) any of the Transaction Documents, or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement(C) in any certificate, instrument or other document delivered by the Company, the Certificate of IncorporationKey Stockholder, the By-laws, other Equity Holders or the DGCL or otherwise; (c) the Company shall not be obligated Special Payees pursuant to the terms of this Agreement (without giving effect to indemnify any update of the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlementDisclosure Schedules), which consent shall not be unreasonably withheld;subject to such Basket Amount. (db) In the Company event any Indemnified Party shall not suffer any Losses for which such Indemnified Party is entitled to indemnification under this ARTICLE VII, such Indemnified Party shall be obligated entitled to recover such Losses by obtaining that amount of Escrow Cash equivalent in value (as determined in accordance with the terms and conditions of the Escrow Agreement) to the aggregate amount of such Losses pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits Escrow Agreement, and such recovery shall be made from the purchase or sale Escrow Fund. As set forth in the Escrow Agreement and subject to Section 7.10, the Indemnifying Parties (other than the Key Stockholder) shall have no liability for Losses in excess of the Escrow Fund held under the Escrow Agreement; provided, however, that each Equity Holder shall be liable for Losses up to the total value of the Equity Consideration received by such Equity Holder for any breach by such Equity Holder of the representations set forth in Section 3.34 of this Agreement. The Key Stockholder shall be liable for Losses but only up to the total value of the Stock Consideration received by the Indemnitee of securities Key Stockholder, determined as of the Company pursuant Closing Date. Any and all Losses incurred by an Indemnified Party shall first be recovered from the Escrow Fund to the provisions extent Escrow Cash remains available. Notwithstanding any other provision set forth herein, in the event of a breach of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms 3.34 of this Agreement by an Equity Holder, the Indemnified Party shall be entitled to indemnify recover the Indemnitee full amount of such Losses from the portion of the Escrow Cash that may be distributable on the Termination Date to the breaching Equity Holder, and if a final decision by a court having jurisdiction such amount is insufficient to cover all of such Losses: (i) from the remainder of the Escrow Cash that may be distributable on the Termination Date to all other Indemnifying Parties if the breaching Equity Holder has not signed this Agreement (either personally or through Xxxxxxxxx Xxxxxxxx as its attorney in fact), and (ii) only from the matter shall determine that breaching Equity Holder up to the total value of such indemnification is not lawful; andEquity Holder’s Equity Consideration if it has signed this Agreement (either personally or through Xxxxxxxxx Xxxxxxxx as its attorney in fact). (fc) Subject to Section 7.8 and any claim based on the Company shall not be obligated pursuant enumerated representations set forth in Section 7.1(a), no claim for indemnification hereunder or otherwise with respect to the terms a breach of this Agreement to make may be made by any payment in connection with any Proceeding to Indemnified Party after the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this AgreementTermination Date.

Limitation on Indemnification. Notwithstanding No payment pursuant to this Agreement ----------------------------- shall be made by the terms of Section 2Corporation: (a) the obligations of the Company set forth in Section 2 shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance funds to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance for Expenses to the Indemnitee with respect to a Proceeding (Proceedings initiated or part thereof) brought voluntarily by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) with respect to Proceedings brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, but such indemnification or advancement of Expenses may be provided by the Certificate Corporation in specific cases if the Board of IncorporationDirectors finds it to be appropriate; (b) to indemnify Indemnitee for any Expenses, judgments, fines, or penalties sustained in any Proceeding for which payment is actually made to Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the By-laws, the DGCL or otherwiseamount of payment under such insurance; (c) to indemnify Indemnitee for any Expenses, judgments, fines or penalties sustained in any Proceeding for an accounting of profits made from the Company shall not be obligated purchase or sale by Indemnitee of securities of the Corporation pursuant to the terms provisions of this Agreement Section 16(b) of the Securities Exchange Act of 1934, the rules and regulations promulgated thereunder and amendments thereto or similar provisions of any federal, state, or local statutory law; (d) to indemnify the Indemnitee for any Expenses, judgments, fines or penalties resulting from Indemnitee's conduct which is finally adjudged to have been willful misconduct, knowingly fraudulent, or deliberately dishonest; (e) to indemnify Indemnitee for any amounts paid in settlement of a Proceeding unless the Company Corporation consents to the settlement in advance and in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawfulwriting; andor (f) the Company shall not be obligated pursuant to the terms if a court of this Agreement to make any competent jurisdiction finally determines that such payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementhereunder is unlawful.

Limitation on Indemnification. Notwithstanding any other provision in this Agreement to the terms of Section 2contrary, the Company’s obligation to indemnify Indemnitee is limited as follow: (a) 1. Indemnification under this Agreement shall only be provided if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the obligations best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful. 2. Indemnification under this Agreement shall be made by the Company only upon a determination that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the qualifications required under Section II.A, above, and the applicable standard of conduct set forth in this Section 2 II.B. 3. The Company shall not be subject obligated pursuant to this Agreement to indemnify Indemnitee: a. with respect to what would otherwise be an Indemnified Expense under this Agreement if, and to the condition that extent that, Indemnitee is entitled to and receives payment with respect to such Indemnified Expense under any insurance policy, contract, or other agreement; b. with respect to an action, suit or proceeding initiated by Indemnitee, unless such action, suit or proceeding was authorized or consented to by the Reviewing Party shall not have determined (based on a written opinion Board of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawDirectors of the Company; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law this Section II.B.3.b shall not be binding and Indemnitee shall not be required apply to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted an action, suit or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) proceeding brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee c. for any amounts paid in settlement of a any Indemnified Proceeding unless without the Company consents in advance in writing to such settlementCompany’s prior written consent, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of d. for any suit in which judgment is rendered against the Indemnitee for an payment or accounting of profits made arising from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions in violation of Section l6(b16(b) of the Securities Exchange Act of 1934, as amended amended, or any similar provisions of any federalsuccessor statute; provided, state however, that nothing in this subsection (d) is intended to or local statutory law; (e) shall be interpreted to excuse the Company shall not be obligated pursuant from indemnifying Indemnitee for attorneys’ fees and other reasonable expenses incurred in defending Indemnitee against any such claim under Section 16(b) if and to the terms of extent the Company would otherwise have an obligation to do so under this Agreement Agreement; or e. with respect to indemnify Indemnified Expenses incurred by the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with an action, suit or proceeding instituted by the Indemnitee to establish or enforce a right to indemnification under this Agreement if a court of competent jurisdiction determines that such action, suit or proceeding was not instituted in good faith or was frivolous. 4. In the case of any Proceeding action or suit by the Company seeking to procure a judgment in its favor against Indemnitee by reason of the fact that Indemnitee is or was serving in an Indemnified Capacity, no indemnification shall be made with respect to any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Company pursuant to a final judgment not subject to further appeal unless, and only to the extent Indemnitee has otherwise actually received payment (under any insurance policy that, the Delaware Court of Chancery or otherwise) the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the amounts otherwise indemnifiable under this Agreementcase, Indemnitee is fairly and reasonably entitled to indemnity with respect to such portion of the Indemnified Expenses which the Delaware Court of Chancery or such other court shall deem proper.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) No Injured Party shall be entitled to indemnification for Losses with respect to any individual claim unless the obligations Losses associated with such claim exceed Fifty Thousand Dollars ($50,000) (“De Minimis Claim”). Any De Minimis Claim shall not count toward calculation of the Company set forth Indemnification Deductible. For purposes of determining the failure of any representations or warranties to be true and correct, the breach of any covenants and agreements, and calculating Losses hereunder, any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements will be disregarded provided, however, that the foregoing limitations shall not apply to the defined term “Material Contracts” in Section 2 3.10 or the phrase Material Adverse Effect as used in Section 3.6. (b) The provisions for indemnity under Section 9.1(b) shall be subject to effective only when the condition that Losses for which indemnification is sought exceed one percent (1%) of the Reviewing Purchase Price in the aggregate (the “Indemnification Deductible”), in which case the Injured Party shall not have determined (based on a written opinion be entitled to indemnification of outside counsel the Injured Party’s Losses only in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawexcess thereof; provided, however, that if Indemnitee has commenced the Indemnification Deductible shall not apply in any manner whatsoever to any breach of a Fundamental Representation. (c) The indemnification obligations of Seller pursuant to Section 9.1(b) shall be effective only until the dollar amount paid by Seller in respect of all Losses indemnified against under Section 9.1(b) aggregates an amount equal to five percent (5%) of the Purchase Price; provided, however, that the limitation in this Section 9.6(c) shall not apply in any manner whatsoever to any breach of a Fundamental Representation. (d) The indemnification obligations of Seller pursuant to Section 9.1(b) with respect to breaches of Fundamental Representations shall be effective only until the dollar amount paid by Seller in respect of all Losses indemnified against under Section 9.1(b) with respect to breaches of Fundamental Representations aggregates an amount equal to the Purchase Price. (e) All indemnification obligations shall be paid in U.S. Dollars in the United States. (f) Notwithstanding anything in this Agreement to the contrary, Buyer Indemnified Persons shall not be entitled to indemnification hereunder: (i) to the extent any Loss is attributable to the negligence of Buyer after Closing; (ii) to the extent such Loss was taken into account in determining Base Final Net Working Capital or thereafter commences legal proceedings China Final Net Working Capital; and (iii) with respect to any Loss resulting from any breach of any representation or warranty, to Buyer’s Knowledge, on the Base Closing Date. (g) If Seller’s indemnification obligation under Section 9.1 arises in respect of any indemnifiable event (i) for which a court of competent jurisdiction Buyer Indemnified Person receives indemnification from Seller and (ii) that results in any Tax benefit to secure a determination that Indemnitee should such Buyer Indemnified Person for any Tax period (or portion thereof) beginning and ending after the Base Effective Time which would not, but for such indemnifiable event, be indemnified under applicable lawavailable, any determination made such Buyer Indemnified Person shall pay, or shall cause to be paid, to Seller an amount equal to the actual Tax savings produced by such Tax benefit reduced by the Reviewing amount of any Tax detriment to such Buyer Indemnified Person as a result of the receipt of such indemnification. Tax benefits and detriments shall be taken into account as and when actually received (whether paid, credited, or otherwise received). The amount of any such Tax savings for any Tax period shall be the amount of the reduction in Taxes payable to a Tax Authority by such Buyer Indemnified Person with respect to such Tax period (net of any Tax detriment resulting from the receipt of the indemnity payment) as compared to the Taxes that would have been payable to a Tax Authority by such Buyer Indemnified Person with respect to such Tax period in the absence of such Tax benefit. (h) Each Party hereby agrees that Indemnitee would not be permitted it shall, and it shall cause its Affiliates to, use its or their commercially reasonable efforts to mitigate any Losses to be indemnified under applicable law shall not this ARTICLE IX upon and after becoming aware of any event or condition that could reasonably be binding expected to give rise to any Losses that may be indemnifiable hereunder. If an Injured Party mitigates its Losses after the Indemnifying Party has paid the Injured Party under any indemnification provision of this Agreement in respect of such Losses, the Injured Party must promptly notify the Indemnifying Party and Indemnitee shall not promptly pay to the Indemnifying Party the extent of the value of the benefit to the Injured Party of that mitigation (less the Injured Party’s reasonable costs of mitigation) within two (2) Business Days after the benefit is received. (i) An Injured Party’s right to indemnification pursuant to Section 9.1 or Section 9.2, respectively, will be required to reimburse reduced by the Company for any advancement of Expenses until amount payable by a final judicial determination is made with respect thereto third party (as to which all rights of appeal therefrom have been exhausted including an insurance company), or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered paid by such Reviewing Party determination (unless there has been a determination by a court third party to another for the account or benefit of competent jurisdiction that Seller or Buyer, as the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee case may be, with respect to the settlement or resolution of a Proceeding (claim for which Seller or part thereof) by Buyer, as the Indemnitee (and not by way of defense)case may be, except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right entitled to indemnification and/or advancement of Expenses arising hereunder. Each party shall pursue in good faith recovery from such third parties and under this Agreement, all insurance policies available to it. Each party shall remit to the Certificate of Incorporation, the By-laws, the DGCL other any such insurance or otherwise; (c) the Company shall not be obligated other third party proceeds that are paid to it with respect to Losses for which it has been previously compensated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreement9.1.

Limitation on Indemnification. Notwithstanding anything to the terms contrary in this Agreement, the total aggregate liability of Section 2:any Indemnifying Party to pay indemnification amounts, is expressly limited as set forth in each and all of the provisions below, except in the case of fraud. (a) the obligations No claim for indemnification may be made after expiration of the Company Survival Periods as set forth below in this Section 2 shall 8.5(a). However, if prior to the end of the applicable Survival Period an Indemnified Party submits a claim to court regarding an indemnifiable event that has previously occurred or surfaced, the Indemnified Party will be entitled to indemnification for the Damages arising from such event (subject to the condition that limitations set forth elsewhere in this Section Error! Reference source not found.) even if the Reviewing Party final resolution of this matter occurs after the end of such Survival Period. (i) The Survival Period with regard to each Purchaser’s and Stockholders’ representations concerning the right to sell or issue the Shares or the Purchaser Stock, as applicable, shall not have determined be seven (based on a written opinion 5) years as of outside counsel in the Closing Date; (ii) The Survival Period with regard to Stockholders representations concerning Taxes, shall be seven (5) years as of the Closing Date; (iii) The Survival Period with regard to all casesother representations, shall be twenty four (24) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court months as of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);Closing Date. (b) Where Purchaser Damages are based on breach of a representation regarding the Company or its Subsidiaries, all Stockholders shall not be required participate in the payment of Damages, each according solely to indemnify or advance Expenses his pro-rata share in the Company’s shares immediately prior to the Indemnitee with respect Closing, always subject to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized limitations set forth in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;Section 8.5. (c) Where Purchaser Damages arise from a breach by a certain Stockholder of his representations regarding his Shares, the Company shall not be obligated pursuant indemnification amount due to the terms of Indemnified Parties, shall be due solely and exclusively from such Stockholder and no other Stockholder shall be held liable for it, always subject to the procedure and limitations set forth in this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall Section Error! Reference source not be unreasonably withheld;found.. (d) the Company The maximum aggregate indemnification liability of each Stockholder (whether arising in law or equity, in contract, tort, any other theory of law or otherwise) towards any and all Indemnified Parties for any Purchaser Damages giving rise to indemnification or otherwise in connection with this Agreement, shall not be obligated pursuant exceed the value of the Purchaser Stock held by such Stockholder at the Closing or upon such claim, according to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law;higher. (e) The maximum aggregate indemnification liability of the Company Purchaser (whether arising in law or equity, in contract, tort or any other theory of law) towards any and all Indemnified Parties for any Stockholders Damages giving rise to indemnification, shall not be obligated pursuant to exceed the terms value of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in Shares at the matter shall determine that such indemnification is not lawful; andClosing date. (f) the Company shall not be obligated no claim for indemnification pursuant to this Agreement with respect to the terms Company’s representations, shall be brought against any Stockholder unless and until the aggregate amount of Purchaser Damages for which indemnification is due from all Stockholders in the aggregate equals or exceeds US$50,000, in which case of a claim or claims in excess of the aforesaid threshold the full amount of such Purchaser Damages shall be paid from the first dollar thereof. (g) Without prejudice to any of the limitation provisions of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy Section Error! Reference source not found., no Party shall be liable for special, punitive, exemplary, consequential, or indirect damages, or lost profits, whether based on contract, tort, strict liability, other theory of law or otherwise. (h) The aforesaid limited liability according to all the provisions of this Section Error! Reference source not found. constitutes the sole and exclusive remedy for the Indemnified Parties under and arising from this Agreement. However, none of the amounts otherwise indemnifiable under this Agreementaforesaid limitations shall apply in case of fraud by any Stockholder or by the Purchaser.

Limitation on Indemnification. Notwithstanding any other provision of this Agreement to the terms contrary, in no event shall Losses include a party's incidental or consequential damages. Neither Sellers nor Buyer shall be liable to the other in respect of Section 2: any indemnification hereunder except to the extent that (a) the obligations aggregate Losses under this Agreement of Sellers (taken as a whole) or Buyer, as the case may be, exceeds Five Hundred Thousand Dollars ($500,000) (the "Basket Amount"), and then only to the extent of the Company excess over the Basket Amount, and (b) the aggregate amount of such indemnification, together with all other indemnification payments by the indemnifying party, for Losses is less than Three Million Dollars ($3,000,000) (the "Indemnity Cap"); PROVIDED, HOWEVER, (i) any Losses incurred by Sellers in connection with Buyer's failure to comply with the covenants, agreements and indemnities set forth in Section 2 SECTION 2.8.1 and (ii) any amounts owing in connection with the Final Net Working Capital shall not be subject to the condition Basket Amount or the Indemnity Cap. Notwithstanding anything to the contrary set forth herein or otherwise, Buyer acknowledges and agrees that the Reviewing Party Basket Amount and the Indemnity Cap shall not have determined (based be applicable to all of the Sellers on a written opinion collective basis and not individually. Each party (a "recipient party") shall notify the other party (the "representing party") reasonably promptly of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made perceived breach by the Reviewing Party representing party of which the recipient party has knowledge of any representations and warranties, covenants, and agreements and of any Losses (including a brief description of the same) of the recipient party caused thereby. In the event of any breach that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses cured prior to the Indemnitee Closing Date in accordance with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way terms of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL representing party shall have no obligation under SECTION 12.2 or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement SECTION 12.3 or otherwise to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance recipient party with respect to such Losses. In addition, each recipient party will specify in writing to the representing party any perceived breach by the representing party of any representations and warranties, covenants, and agreements and of any Losses (including a brief description of the same) of the recipient party caused thereby. In the event that the recipient party fails to so notify the representing party of any such settlementbreach of which the recipient party has knowledge, which consent the representing party shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement have no obligation under SECTION 12.2 or SECTION 12.3 or otherwise to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant recipient party with respect to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this AgreementLosses.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) Notwithstanding any provision of this Section 10 to the contrary, the dollar amount of such indemnification obligations of any Seller may not exceed the Company set forth in total Purchase Price (the "Claims Limitation"). Unless otherwise specified by agreement with Seller and NetSol, notwithstanding any provision of this Section 2 shall be subject 10 to the condition that contrary, the Reviewing Party dollar amount of such indemnification obligations of any Seller shall not have determined exceed the total prorated Purchase Price (based on a written opinion of outside counsel in all casesthe "Claims Limitation") that Indemnitee would not be permitted to be so indemnified under applicable law; providedreceived by said Seller. Provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in actions based on fraud and/or a court breach of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would Fundamental Representation and Warranty will not be permitted subject to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);this Claims Limitations. (b) the Company shall not be The amount which an Indemnitor is required to indemnify pay to, for or advance Expenses on behalf of any Indemnified Person pursuant to this Section 10 (the "Indemnity Payment") shall be reduced by the amount of any Net Insurance Recovery (as defined below) made in respect thereof and the amount, if any, of claims, cross-claims, counterclaims or the like that are either received directly by the indemnified party or by the indemnifying party on behalf of the indemnified party and remitted to the Indemnitee indemnified party as a direct result of the event giving rise to the claim for indemnification after deducting there from all fees, costs and expenses (including, without limitation, reasonable attorneys and disbursements) incurred in connection therewith. In such connection, an indemnified party shall fully cooperate with the indemnifying party in pursing and realizing all amounts which may reasonably be available from third persons. Nothing in this Section 10 shall (i) obligate any Indemnified Person to obtain or maintain insurance with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors any matters for which it is entitled to seek indemnification under this Agreement or (ii) brought obligate any Indemnitor to establish obtain or enforce a right maintain insurance with respect to indemnification and/or advancement of Expenses arising under this Agreementany matters for which it is obligated to provide indemnity hereunder or to prosecute or attempt to prosecute any claim, cross-claim, counterclaim or the Certificate of Incorporationlike against any party; provided that if, the By-lawsin fact, the DGCL or otherwise; (c) the Company such Indemnitor shall not be obligated pursuant to maintain any such insurance, it shall submit such claim in accordance with the terms of this Agreement to indemnify such insurance policy. Each Indemnitor hereby waives all rights of subrogation it may have against any insurer insuring the Indemnitee Indemnified Person in respect of any loss for any amounts paid which such Indemnitor has made an Indemnity Payment. "Net Insurance Recovery" shall mean the amount by which insurance proceeds actually recovered by an Indemnified Person in settlement respect of a Proceeding unless loss covered hereunder exceed 150% of the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale annual premium paid by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended Indemnified Person or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction its Affiliate in the matter shall determine that most recent fiscal year in respect of such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementinsurance.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) Notwithstanding any provision of this Agreement to the obligations contrary, after the Closing Date, the Shareholders and Key Shareholders shall have no obligation to indemnify any Parent Indemnified Parties, and Parent shall have no obligation to indemnify any Shareholder Indemnified Parties, until the aggregate of all Losses suffered by the Company set forth Parent Indemnified Parties or Shareholder Indemnified Parties, as the case may be, exceeds $100,000 (the "BASKET AMOUNT"), in Section 2 which case the Parent Indemnified Parties or Shareholder Indemnified Parties, as the case may be, shall be subject entitled to recover all Losses including the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawBasket Amount; provided, however, that if Indemnitee has commenced any Losses resulting from a willful or thereafter commences legal proceedings in a court intentional Breach of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, this Agreement or any determination made Transaction Document or fraud by the Reviewing any Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required subject to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);Basket Amount. (b) In the Company event any Parent Indemnified Party shall suffer any Losses for which such Parent Indemnified Party is entitled to indemnification under this Article VII, such Parent Indemnified Party shall be entitled to recover such Losses: (1) first, from the Escrow Account pursuant to the terms and conditions set forth in the Escrow Agreement, until no additional amounts remain in the Escrow Account (without consideration of any amounts to be deposited therein at a later date); and (2) next, to the extent such Losses shall not have been fully recovered, from the Key Shareholders or any of them (including by set-off against any Shareholder Performance Consideration to be required to indemnify or advance Expenses delivered to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defenseKey Shareholders), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;. (c) Subject to Section 7.8, (i) the Company Shareholders shall not have no liability for Losses in excess of the Escrow Stock deposited in the Escrow Account under the Escrow Agreement, and (ii) each Key Shareholder shall be obligated liable to the Parent Indemnified Parties for Losses up to the Consideration Received by such Key Shareholder. For purposes of Section 7.3(c), "CONSIDERATION RECEIVED" means, with respect to any Key Shareholder, the excess of (i) the aggregate value of the Shareholder Consideration received from time to time by such Key Shareholder pursuant to the terms of this Agreement to indemnify (for avoidance of doubt, not including any Shareholder Consideration held in the Indemnitee for any amounts paid Escrow Account in settlement respect of a Proceeding unless the Company consents in advance in writing to such settlementKey Shareholder until released therefrom), which consent shall not be unreasonably withheld; over (dii) the amount of Taxes actually paid by such Key Shareholder in respect of the Shareholder Consideration received by such Key Shareholder in exchange for such Key Shareholder's shares of Company shall not be obligated Common Stock, exclusive of any Taxes paid by such Key Stockholder (A) if the Merger is determined (pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit a final determination, as defined in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b1313(a) of the Securities Exchange Act of 1934, as amended Code or similar comparable provisions of state Laws) not to constitute a reorganization within the meaning of Section 368 of the Code, but only with respect to any federal, state or local statutory law; (e) the Company shall not be obligated pursuant Claim Notice delivered prior to the terms date of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and determination (f) the Company shall not be obligated pursuant any Claim Notice delivered after such determination being subject to the terms limitations in this Section 7.3(c) without regard to this sub-clause (A)), or (B) in respect of this Agreement to make any payment other actual or deemed consideration received on the Closing Date in connection with the Merger or the other Transactions, the Merger Agreement or the Related Agreements. For purposes of calculating the value of such Shareholder Consideration consisting of shares of Parent Common Stock, (i) shares sold by a Key Shareholder in an arm's length transaction shall be valued at the lesser of (A) the per-share value calculated pursuant to Section 2.4(b) or Section 2.4(c), as the case may be, at the time issued, and (B) the greater of (x) the actual per-share value obtained by such Key Shareholder in such sale (as determined by Parent in good faith), and (y) the per-share value calculated pursuant to Section 2.4(b) or Section 2.4(c), as the case may be, at the time issued but without giving effect to any Proceeding minimum per-share value contained in such subsections, and (ii) all other such shares shall be deemed to have the extent Indemnitee has otherwise actually received payment (under per-share value calculated pursuant to Section 2.4(b) or Section 2.4(c), as the case may be, at the time issued or to be issued, as the case may be. If Parent recovers any insurance policy or otherwise) amounts owed by the Key Shareholder hereunder from shares of Parent Common Stock of the amounts otherwise indemnifiable under Key Shareholder, it may, in its sole discretion, elect to recover first against shares having the lowest per-share value, as determined pursuant to this AgreementSection 7.3(c), even if shares of greater value, as so determined, are evidenced by the same or other stock certificates.

Limitation on Indemnification. Notwithstanding anything to the terms contrary in this Agreement, the total aggregate liability of Section 2:any Indemnifying Party to pay indemnification amounts, is expressly limited as set forth in each and all of the provisions below, except in the case of fraud. (a) the obligations No claim for indemnification may be made after expiration of the Company Survival Periods as set forth below in this Section 2 shall 8.5(a). However, if prior to the end of the applicable Survival Period an Indemnified Party submits a claim to court regarding an indemnifiable event that has previously occurred or surfaced, the Indemnified Party will be entitled to indemnification for the Damages arising from such event (subject to the condition that limitations set forth elsewhere in this Section 8.5) even if the Reviewing Party final resolution of this matter occurs after the end of such Survival Period. (i) The Survival Period with regard to each Purchaser's and Stockholders' representations concerning the right to sell or issue the Shares or the Purchaser Stock, as applicable, shall not have determined be seven (based on a written opinion 5) years as of outside counsel in the Closing Date; (ii) The Survival Period with regard to Stockholders representations concerning Taxes, shall be seven (5) years as of the Closing Date; (iii) The Survival Period with regard to all casesother representations, shall be twenty four (24) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court months as of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);Closing Date. (b) Where Purchaser Damages are based on breach of a representation regarding the Company or its Subsidiaries, all Stockholders shall not be required participate in the payment of Damages, each according solely to indemnify or advance Expenses his pro-rata share in the Company's shares immediately prior to the Indemnitee with respect Closing, always subject to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized limitations set forth in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;Section 8.5. (c) Where Purchaser Damages arise from a breach by a certain Stockholder of his representations regarding his Shares, the Company shall not be obligated pursuant indemnification amount due to the terms of Indemnified Parties, shall be due solely and exclusively from such Stockholder and no other Stockholder shall be held liable for it, always subject to the procedure and limitations set forth in this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld;Section ‎8.5. (d) the Company The maximum aggregate indemnification liability of each Stockholder (whether arising in law or equity, in contract, tort, any other theory of law or otherwise) towards any and all Indemnified Parties for any Purchaser Damages giving rise to indemnification or otherwise in connection with this Agreement, shall not be obligated pursuant exceed the value of the Purchaser Stock held by such Stockholder at the Closing or upon such claim, according to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law;higher. (e) The maximum aggregate indemnification liability of the Company Purchaser (whether arising in law or equity, in contract, tort or any other theory of law) towards any and all Indemnified Parties for any Stockholders Damages giving rise to indemnification, shall not be obligated pursuant to exceed the terms value of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in Shares at the matter shall determine that such indemnification is not lawful; andClosing date. (f) the Company shall not be obligated no claim for indemnification pursuant to this Agreement with respect to the terms Company's representations, shall be brought against any Stockholder unless and until the aggregate amount of Purchaser Damages for which indemnification is due from all Stockholders in the aggregate equals or exceeds US$50,000, in which case of a claim or claims in excess of the aforesaid threshold the full amount of such Purchaser Damages shall be paid from the first dollar thereof. (g) Without prejudice to any of the limitation provisions of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy Section ‎8.5, no Party shall be liable for special, punitive, exemplary, consequential, or indirect damages, or lost profits, whether based on contract, tort, strict liability, other theory of law or otherwise. (h) The aforesaid limited liability according to all the provisions of this Section ‎8.5 constitutes the sole and exclusive remedy for the Indemnified Parties under and arising from this Agreement. However, none of the amounts otherwise indemnifiable under this Agreementaforesaid limitations shall apply in case of fraud by any Stockholder or by the Purchaser.

Limitation on Indemnification. Notwithstanding (i) All indemnity claims of Buyer against the terms of Section 2: Target or the Shareholders after the Closing pursuant to Sections 9.1(b)(i) through (av) the obligations of the Company set forth in Section 2 shall be subject satisfied solely from and limited to the condition that Escrow Funds from time to time held by the Reviewing Party Escrow Agent pursuant to the Escrow Agreement and shall not have determined (based on a written opinion be paid in accordance with procedures contained in the Escrow Agreement. Any indemnity claims of outside counsel in all casesBuyer against the Target or the Shareholders after the Closing pursuant to Section 9.1(b)(vi) that Indemnitee would not shall be permitted limited to be so indemnified under applicable lawthe Escrow Funds; provided, however, that if Indemnitee has commenced in addition to such remedies, Buyer shall be entitled to specific performance or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law other appropriate equitable relief. (ii) Buyer shall not be binding and Indemnitee shall not be required entitled to reimburse the Company indemnification for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms breach of this Agreement to indemnify the Indemnitee extent that the matter regarding the breach reduces the Merger Consideration pursuant to Section 2.3. (iii) Because Buyer will control the Target and the Subsidiaries after Closing, the Shareholders shall have no responsibility, for indemnification or otherwise, for any amounts paid failure of the Target or any Subsidiary to perform after the Closing any covenants, agreements or other obligations of the Target or any Subsidiary under this Agreement or any instrument or agreement delivered in settlement connection with the consummation of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld;transactions contemplated by this Agreement. (div) Except with respect to any Losses relating to liabilities for failure to comply with any Environmental Laws, to the Company shall extent that insurance or "pass-through" warranty coverage from a manufacturer or other form of recovery or reimbursement from a third party (the "Third Party Source") is available to any IDEX Indemnified Party or any Target Indemnified Party (after Closing) to cover any Losses for which indemnification may be sought hereunder, Buyer will, and will cause all other indemnified parties to use reasonable commercial efforts (not to include the bringing of any litigation) to recover the amount of its Losses available from the Third Party Source and will only seek indemnification hereunder if Buyer or any other indemnified parties fails to recover from the Third Party Source or if the amount of the recovery in insufficient to satisfy all of the Losses indemnifiable under this Article (and in the latter instance will only seek indemnity for the amount of the deficiency). To the extent of any indemnification of Losses as described in the previous sentence, or any indemnification of Losses relating to liabilities for failure to comply with any Environmental Laws, Buyer will, and will cause any other indemnified parties to, assign to the indemnifying party or parties, to the fullest extent allowable, their claim against each Third Party Source, or if assignment is not permissible, the indemnifying party or parties will be obligated pursuant entitled to retain all recoveries made as a result of any such action. Subject to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions and conditions of Section l6(b) of 9.4, Buyer will, and cause the Securities Exchange Act of 1934Surviving Corporation and its Subsidiaries to, as amended make their respective books and records relating to such claim available to assist the indemnifying party or similar provisions of parties in prosecuting any federal, state or local statutory law;such claim. (ev) the Company shall not No IDEX Indemnified Party or any Target Indemnified Party (after Closing) will be obligated pursuant entitled to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment the item for which indemnification is sought is reflected in or reserved against as an Accrued Liability or Account Payable on the Closing Date Financial Report. Any amounts recoverable by any IDEX Indemnified Party or any Target Indemnified Party (under any insurance policy or otherwiseafter Closing) of the amounts otherwise indemnifiable under this AgreementAgreement will be net of any tax benefits incurred by the indemnified party or parties. To the extent the tax benefit is incurred after any recovery pursuant to this Article 9, there will be a corresponding adjustment between the parties without regard to the time limitation imposed under this Article 9.

Limitation on Indemnification. (a) Notwithstanding anything to the terms contrary contained in this Agreement, but subject to Section 10.4(c), in the event that the Indemnity Stockholders have an obligation to indemnify any TheMaven Indemnified Person hereunder, such obligation shall solely be satisfied as follows: first, by the payment to TheMaven by the Founders, on a pro rata basis, of such number of shares of unvested Stock Awards issued to the Founders as is equal in value to such indemnifiable Loss calculated based on a value of $2.50 per share (the “Indemnification Shares”); and, second, in the event that the available Indemnification Shares are insufficient to satisfy any indemnifiable Losses of TheMaven Indemnified Persons pursuant to this Section 210, by recourse to the amounts then held in the Indemnity Escrow. In determining the residual interest of each Indemnity Stockholder with respect to the Indemnity Escrow, all indemnifiable Losses of TheMaven Indemnified Persons satisfied by recourse to the amounts held in the Indemnity Escrow shall be deemed to have been borne by each Indemnity Stockholder in accordance with such Indemnity Stockholders’ Pro Rata Portion. Any amounts used to satisfy an indemnifiable Loss shall be treated by the Parties as an adjustment to the consideration payable under this Agreement for all Tax purposes to the maximum extent permitted by applicable Legal Requirements. (b) Subject to Section 10.4(c), recourse against the Indemnification Shares and the Indemnity Escrow, and if obtained and bound, the R&W Insurance Policy, shall be the sole and exclusive remedy of the TheMaven Indemnified Persons with respect to any Losses of TheMaven Indemnified Persons indemnifiable hereunder. (c) In the event that the R&W Insurance Policy is obtained and bound pursuant to Section 4.11: (ai) Notwithstanding anything to the contrary contained in Section 10.4(a), any indemnification obligation contemplated by Section 10.4(a) shall solely be satisfied as follows: (i) first, by recourse to the amounts then held in the Indemnity Escrow up to an amount of cash equal to the amount of the retention under the R&W Insurance Policy (giving effect to any applicable reduction or drop-down with respect to such retention under the R&W Insurance Policy) solely to the extent such indemnification obligation is a covered loss under the R&W Insurance Policy; (ii) second, by recourse against the insured persons under the R&W Insurance Policy solely to the extent such indemnification obligation is a covered loss under the R&W Insurance Policy and results in recovery under the R&W Insurance Policy; and (iii) third, as further contemplated by Section 10.4(a). For the avoidance of doubt, in the event that the Indemnity Stockholders have an obligation to indemnify any TheMaven Indemnified Person hereunder and such obligation is not a covered loss under the R&W Insurance Policy or (solely with respect to clause (ii) of the previous sentence) does not result in recovery under the R&W Insurance Policy, such indemnification obligation shall solely be satisfied as contemplated by Section 10.4(a); and (ii) Notwithstanding anything to the contrary contained in Section 10.4(b), the maximum amount of indemnifiable Losses that the Indemnity Stockholders shall be liable for, or that may be recovered by TheMaven Indemnified Persons, in the aggregate pursuant to this Agreement shall be an amount equal to the sum of (A) the obligations aggregate number of shares of unvested Stock Awards issued to the Company Founders multiplied by $2.50 plus (B) the amounts held in the Indemnity Escrow pursuant to this Agreement and the Escrow Agreement (assuming no indemnifiable Losses of TheMaven Indemnified Persons have arisen hereunder). (d) Except as set forth in Section 2 shall be 11.10, from and after the Closing, the rights to indemnification provided in this Section 10, subject to the condition that limitations set forth herein, shall be the Reviewing exclusive post-Closing monetary remedy available to any Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to Losses arising out of or resulting from breach of this Agreement or the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreementtransactions contemplated hereby.

Limitation on Indemnification. Notwithstanding Subject to any limitations contained therein, all representations and warranties made by the terms of Section 2: (a) parties herein or in any instrument or document furnished in connection herewith shall survive the obligations Closing and any investigation at any time made by or on behalf of the Company parties hereto and shall expire twenty-four months after the Closing Date, except (i) as to any matter as to which a claim is submitted in writing to the indemnifying party prior to the applicable expiration date and identified as a claim for indemnification pursuant to this Agreement; (ii) as to any representation or warranty relating to ownership or title to the Shares or the Company's assets, including real property, which shall not expire; (iii) as to any matter which is based upon willful fraud by the indemnifying party, with respect to which the representations and warranties set forth in Section 2 this Agreement shall expire only upon expiration of the applicable statute of limitations plus one year; (iv) as to any representation or warranty concerning tax or environmental matters, which shall expire only upon the expiration of the applicable statute of limitations plus one year; and (v) as to any representation or warranty concerning the authority to execute this Agreement or any of the other documents contemplated hereby, which shall not expire. No claim or action for indemnity pursuant to Sections 6.1 or 6.2 hereof for breach of any representation or warranty shall be subject asserted or maintained by any party hereto after the expiration of such representation or warranty pursuant to the condition that the Reviewing Party shall not have determined preceding sentence except for claims made in writing prior to such expiration and actions (whether instituted before or after such expiration) based on a written opinion of outside counsel any claim made in all caseswriting prior to such expiration. Notwithstanding any other provisions contained in this Agreement, (i) that Indemnitee would not neither Buyer nor Sellers shall be permitted entitled to be so indemnified receive any amount under applicable lawthis Section 6 which exceeds Purchase Price; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law (ii) Buyer shall not be binding entitled to payment with respect to breaches of representations and Indemnitee warranties by Sellers (excluding those related to title to the Shares or the Company's assets) except if the aggregate of all Losses with respect thereto exceed the sum of $50,000, and in such event, Buyer shall be entitled to indemnification for all such Losses; and (iii) Sellers shall not be required entitled to reimburse payment with respect to breaches of representations and warranties by Buyer except if the Company for any advancement aggregate of Expenses until a final judicial determination is made all Losses with respect thereto (as to which all rights exceed the sum of appeal therefrom have been exhausted or lapsed) $50,000, and the Company in such event, Sellers shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right entitled to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to all such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this AgreementLosses.

Limitation on Indemnification. Notwithstanding any other provision in this Agreement to the terms of Section 2contrary, the Company’s obligation to indemnify Indemnitee is limited as follows: (a) 1. Indemnification under this Agreement shall only be provided if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the obligations best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful. 2. Indemnification under this Agreement shall be made by the Company only upon a determination that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the qualifications required under Section II.A, above, and the applicable standard of conduct set forth in this Section 2 II.B. 3. The Company shall not be subject obligated pursuant to this Agreement to indemnify Indemnitee: a. with respect to what would otherwise be an Indemnified Expense under this Agreement if, and to the condition that extent that, Indemnitee is entitled to and receives payment with respect to such Indemnified Expense under any insurance policy, contract, or other agreement; b. with respect to an action, suit or proceeding initiated by Indemnitee, unless such action, suit or proceeding was authorized or consented to by the Reviewing Party shall not have determined (based on a written opinion Board of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable lawDirectors of the Company; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law this Section II.B.3.b shall not be binding and Indemnitee shall not be required apply to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted an action, suit or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) proceeding brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee c. for any amounts paid in settlement of a any Indemnified Proceeding unless without the Company consents in advance in writing to such settlementCompany’s prior written consent, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of d. for any suit in which judgment is rendered against the Indemnitee for an payment or accounting of profits made arising from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions in violation of Section l6(b16(b) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), or any similar provisions successor statute; provided, however, that nothing in this subsection (d) is intended to or shall beinterpreted to excuse the Company from indemnifying Indemnitee for attorneys’ fees and other reasonable expenses incurred in defending Indemnitee against any such claim under Section 16(b) if and to the extent the Company would otherwise have an obligation to do so under this Agreement; e. for any reimbursement of the Company by the Indemnitee of any federalbonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, state or local statutory law;as required in each case under the Exchange Act (including without limitation under the Xxxxxxxx-Xxxxx Act of 2002); or, (e) the Company shall not be obligated pursuant f. with respect to the terms of this Agreement to indemnify Indemnified Expenses incurred by the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with an action, suit or proceeding instituted by the Indemnitee to establish or enforce a right to indemnification under this Agreement if a court of competent jurisdiction determines that such action, suit or proceeding was not instituted in good faith or was frivolous. 4. In the case of any Proceeding action or suit by the Company seeking to procure a judgment in its favor against Indemnitee by reason of the fact that Indemnitee is or was serving in an Indemnified Capacity, no indemnification shall be made with respect to any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Company pursuant to a final judgment not subject to further appeal unless, and only to the extent Indemnitee has otherwise actually received payment (under any insurance policy that, the Delaware Court of Chancery or otherwise) the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the amounts otherwise indemnifiable under this Agreementcase, Indemnitee is fairly and reasonably entitled to indemnity with respect to such portion of the Indemnified Expenses which the Delaware Court of Chancery or such other court shall deem proper.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) In no event shall the indemnification obligations of the Company set forth in Section 2 Escrow Shareholders exceed the Escrow Amount and the Acquiror Indemnified Parties shall only be entitled to indemnification to the extent any Losses may be paid from the Escrow Fund deposited with the Escrow Agent (for the avoidance of doubt, any portion of the Escrow Fund distributed by the Escrow Agent pursuant to this Agreement or the Escrow Agreement shall be subject to the condition that the Reviewing Party non-refundable and shall not have determined (based on a written opinion be available as satisfaction of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified any claim for indemnification, or otherwise, under applicable lawthis Agreement); provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction the foregoing limitation to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law Escrow Amount shall not be binding and Indemnitee apply to claims for fraud or intentional or willful misrepresentation related to this Agreement. In no event shall the aggregate indemnification obligations of Acquiror resulting from Section 8.3 of this Agreement exceed an amount equal to $1,000,000; provided, however, that the foregoing limitation shall not be required apply to reimburse the Company claims for fraud or intentional or willful misrepresentation related to this Agreement or to Acquiror’s failure to pay any advancement of Expenses until a final judicial determination is made with respect thereto (as Merger Consideration pursuant to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);this Agreement. (b) Notwithstanding the Company foregoing, no indemnification pursuant to Section 8.2(a), (b), (c) or (f) or Section 8.3 shall not be required to indemnify be made by the Escrow Shareholders or advance Expenses Acquiror unless and until the aggregate amount of Losses incurred by the applicable Indemnified Party exceeds $100,000 (the “Basket”), it being understood and agreed that, if the Basket is exceeded, the Indemnifying Party (as defined herein) shall be liable to the Indemnitee with respect full extent of all such Losses; provided, however, that the foregoing limitation shall not apply to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought Losses attributable to establish or enforce a right Acquiror’s failure to indemnification and/or advancement of Expenses arising under pay any Merger Consideration pursuant to this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise;. (c) Notwithstanding the Company shall not be obligated foregoing, no indemnification pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (dSection 8.2(d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; and (e) shall be required to be made by the Company Escrow Shareholders unless and until the aggregate amount of Losses incurred by the applicable Indemnified Party exceeds $100,000 (the “Tax Basket”), it being understood and agreed that, if the Tax Basket is exceeded, the Escrow Shareholders shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding liable only to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of such Losses exceed the amounts otherwise indemnifiable under this AgreementTax Basket.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) the obligations of the Company set forth in Section 2 No Buyer Indemnified Party shall be subject entitled to indemnification hereunder for any Damages (and the condition that the Reviewing Party shall not have determined (based on a written opinion amount of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law Damages shall not be binding and Indemnitee included in the calculation of any limitations on indemnification set forth herein) to the extent such liability is a Current Liability reflected in the calculation of Final Closing Working Capital. Any liability for indemnification under this Article IX shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (b) Anything herein to the contrary notwithstanding, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of an Indemnified Party, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby. (c) A Buyer Indemnified Party shall not be required to reimburse proceed against and exhaust the Company for Escrow Fund in respect of any advancement of Expenses until a final judicial determination is made indemnification claims under Sections 9.2(a)(ii), (iii), (iv) or (v) before proceeding against Seller. (d) Except with respect thereto (as to which all rights the Excluded Matters, and subject to the provisions of appeal therefrom have been exhausted or lapsedSections 9.2(c) and the Company 9.7, Seller shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Buyer Indemnified Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee Section 9.2(a)(i) for any amounts paid amount of Damages in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities excess of the Company pursuant to Escrow Fund and the provisions of Escrow Fund shall be the sole and exclusive recourse for satisfying indemnification obligations under Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreement9.2(a)(i).

Limitation on Indemnification. Notwithstanding the terms Seller hereby assigns all of its rights under Section 2: (a) the obligations 13 of the Company set forth Mobliss Agreement to Buyer Indemnified Parties and agrees to use its commercially reasonable efforts to cooperate with each Buyer Indemnified Party, at such Buyer Indemnified Party’s expense, in Section 2 shall be subject enforcing any right or claim that a Buyer Indemnified Party may have against Mobliss hereunder or under the Mobliss Agreement. Notwithstanding anything to the condition that the Reviewing contrary herein, Seller shall have no duty to defend or indemnify any Buyer Indemnified Party pursuant to this Section 13 unless such Buyer Indemnified Party shall not first have exercised its rights with respect thereto against Mobliss as a third party beneficiary under the Mobliss Agreement and it shall have been judicially determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in by a court of competent appropriate jurisdiction to secure that Buyer Indemnified Party’s rights as a determination that Indemnitee should be indemnified under applicable lawthird party beneficiary of the Mobliss Agreement are valid, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company but unenforceable against Mobliss. Additionally, Seller shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Buyer Indemnified Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to any matter to the extent that such Buyer Indemnified Party shall have received any recovery with respect to such matter from Mobliss and unless such Buyer Indemnified Party shall have first used its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies, if applicable. The amount of losses or other liability incurred by a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding Buyer Indemnified Party shall be reduced (i) was authorized in the specific case by the Board of Directors or any and all amounts recovered by such Buyer Indemnified Party under applicable insurance policies and (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee for any amounts paid in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on take account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made net tax benefit realized by Buyer Indemnified Party arising from the purchase incurrence or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions payment of any federal, state or local statutory law; (e) the Company indemnified amount. Seller shall not be obligated pursuant have any liability to the terms of any Buyer Indemnified Party under this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding Section 13 to the extent Indemnitee has otherwise actually received payment (that the cumulative aggregate amount of Losses incurred by the Buyer Indemnified Parties under this Section 13 exceeds the aggregate amount of payments made by Seller to Mobliss under the Mobliss Agreement. No claim for indemnification under this Section 13 may be brought by any insurance policy or otherwise) Buyer Indemnified Party against Seller unless written notice of such claim specifying in reasonable detail the nature of the amounts otherwise indemnifiable claim and amount of Losses attributable thereto is delivered by such Buyer Indemnified Party to Seller within six (6) months after the final Closing Date. In no event shall any Buyer Indemnified Party be entitled to indemnification under Section 13 for any claim if any Buyer Indemnified Party had (as of the date of this Agreement) any actual knowledge of the existence of the facts and circumstances giving rise to the basis for such claim. The sole recourse and exclusive remedy of Buyer for breaches or inaccuracies of representations and warranties contained in this Agreement and other documents delivered pursuant hereto, or with respect to the Purchased Assets shall be indemnification under this AgreementSection 13 and Buyer may not bring any other claim whatsoever in connection therewith.

Limitation on Indemnification. Notwithstanding anything to the terms of Section 2: (a) the obligations of the Company contrary set forth in Section 2 shall be subject 11.1(a) of this Agreement or elsewhere in this Agreement, (a) Purchaser hereby expressly waives, relinquishes and releases any right or remedy available to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable it at law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted in equity or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law); (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, in the Certificate event the Closing occurs, to make a claim against Seller for Losses that Purchaser may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of Incorporationany of Seller's representations or warranties in Articles II or VIII hereof or in any Seller Subtenant Estoppel or Seller Tenant Estoppel being untrue, inaccurate or incorrect in any material respect if Purchaser has actual knowledge that such representation or warranty was untrue, inaccurate or incorrect at the By-lawstime of the Closing and Purchaser nevertheless proceeds with the Closing hereunder, (b) Seller's liability for the DGCL breach of any representations or otherwise; warranties of Seller contained in Articles II or VIII or pursuant to Section 11.1(a)(i) of this Agreement, shall be limited to claims in excess of $1,500,000 in the aggregate; upon reaching such claims which exceed $1,500,000 in the aggregate, Purchaser may pursue such claims against Seller for Losses resulting from Seller's breach of any representations and warranties under this Agreement (including the first $1,500,000 of such claims) and (c) the Company Seller's aggregate liability for all claims arising out of any breach of such representations or warranties shall not exceed $62,100,000, except that there shall be obligated pursuant no cap on Seller's liability for such breaches of the representations or warranties set forth in Sections 8.1(a), (b), or (c) hereof or in any Seller Tenant Estoppel or Seller Subtenant Estoppel. As used in this paragraph, the term "actual knowledge" of Purchaser shall mean the actual knowledge of Xxxx Will with no duty of inquiry or investigation. Notwithstanding anything to the terms of contrary set forth in this Agreement Agreement, (a) Seller hereby expressly waives, relinquishes and releases any right or remedy available to indemnify the Indemnitee for any amounts paid it at law, in settlement of a Proceeding unless the Company consents in advance in writing to such settlement, which consent shall not be unreasonably withheld; (d) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase equity or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this Agreement, in the event the Closing occurs, to make a claim against Purchaser for Losses that Seller may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of any of Purchaser's representations or warranties in Section 11.1(b)(i) being untrue, inaccurate or incorrect if Seller has actual knowledge (as defined in Section 8.3 hereof) that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and Seller nevertheless proceeds with the Closing hereunder, and (b) Purchaser's liability for breach of any representations or warranties of Purchaser contained in Article VIII hereof or pursuant to Section 11.1(b)(i) shall be limited to claims in excess of $1,500,000 in the aggregate. Upon reaching such claims which exceed $1,500,000 in the aggregate, Seller may pursue such claims against Purchaser for Losses resulting from Purchaser's breach of any representations and warranties under this Agreement (including the first $1,500,000 of such claims). Purchaser's aggregate liability for all claims arising out of any breach of such representations or warranties shall not exceed $62,100,000, except that there shall be no cap on Purchaser's liability for breaches of the representations or warranties set forth in Sections 8.2(a), (b), or (c) hereof.

Limitation on Indemnification. Notwithstanding the terms of Section 2: (a) Notwithstanding any provision of this Agreement to the contrary, after the Effective Time, no Indemnified Party shall be entitled to indemnification until such Indemnified party suffers Losses in excess of Fifty Thousand Dollars ($50,000) in the aggregate (the "Basket Amount"), in which case an Indemnified Party shall be entitled to recover all Losses including the Basket Amount; provided, however, any amounts required to be paid with respect to Dissenting Shares or resulting from any failure by the Company, any of the Stockholders or the Principal to perform or comply with any covenant contained in this Agreement or any Related Agreement shall not be subject to the Basket Amount; and provided further that any amounts required to be paid by the Parent or the Surviving Corporation as a result of the Company's breach of, or any inaccuracy contained in, Section 2.21 herein shall not be subject to the Basket Amount; and provided further that any amounts required to be paid with respect to any actual Third-Party Expenses that exceed the amount of Third-Party Expenses set forth on the Statement pursuant to Section 6.2(m) herein shall not be subject to the Basket Amount. (b) Except for (x) claims based upon any failure by the Company, any of the Stockholders or the Principal to perform or comply with any covenant contained in this Agreement or any of the Related Agreements other than this Agreement, and/or (y) claims based upon fraud or intentional misconduct, the indemnification obligations of the Company set forth in Section 2 Company, the Stockholders and the Principal under this Agreement shall be subject to the condition that the Reviewing Party shall not have determined (based on a written opinion of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law);foregoing: (b) the Company shall not be required to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized Notwithstanding any other provision in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, maximum amount that the By-laws, Indemnified Parties may recover for Losses under the DGCL or otherwise; (c) the Company shall not be obligated pursuant to the terms indemnification provisions of this Agreement shall be limited to indemnify the Indemnitee for $7.5 million in aggregate. (ii) The maximum amount that any amounts paid in settlement of a Proceeding unless particular Stockholder shall be liable with respect to any indemnification payments that the Company consents in advance in writing and the Stockholders are required to make hereunder is equal to such settlement, which consent shall not be unreasonably withheld; (dStockholder's Pro Rata Portion of $7.5 million in the aggregate. For purposes of this Section 7.3(b) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities Aggregate Stock Consideration portion of the Company pursuant to Aggregate Merger Consideration shall be valued on a per share basis at the provisions of Section l6(b) of Transaction Stock Price, and the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory law; (e) Contingent Shares shall be valued on a per share basis at the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful; and (f) the Company shall not be obligated pursuant to the terms of this Agreement to make any payment in connection with any Proceeding to the extent Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable under this AgreementContingent Share Average Trading Price.

Limitation on Indemnification. Notwithstanding any other provision of this Agreement to the terms of Section 2contrary, the Company shall not be liable under this Agreement to make any payment in connection with any Liability: (a) for which payment is actually made to the obligations Indemnitee under a valid and collectible insurance policy, except in respect of any retention not covered, any excess beyond the amount of such payment or any obligation the Company set forth in Section 2 shall be subject may have to the condition that the Reviewing Party shall not have determined (based on a written opinion provide indemnification under such policy of outside counsel in all cases) that Indemnitee would not be permitted to be so indemnified under applicable law; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advancement of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and the Company shall not be obligated to indemnify or advance to Indemnitee any additional amounts covered by such Reviewing Party determination (unless there has been a determination by a court of competent jurisdiction that the Indemnitee would be permitted to be so indemnified under applicable law)insurance; (b) for which the Indemnitee is indemnified by the Company shall not be required other than pursuant to indemnify or advance Expenses to the Indemnitee with respect to a Proceeding (or part thereof) by the Indemnitee (and not by way of defense), except if the commencement of such Proceeding (i) was authorized in the specific case by the Board of Directors or (ii) brought to establish or enforce a right to indemnification and/or advancement of Expenses arising under this Agreement, the Certificate of Incorporation, the By-laws, the DGCL or otherwise; (c) for which the Company shall not be obligated pursuant Indemnitee has received indemnification or advancement of Expenses from any other indemnitor, including any subsidiary, employee benefit plan, or other corporation, partnership, joint venture, trust, employee benefit plan or other entity for which Indemnitee is serving as a director, officer, employee or agent at the request of the Company; (d) incurred in connection with a Proceeding in which the Indemnitee is finally judicially adjudged to the terms have received an improper financial benefit in money, property or securities in violation of law (provided that reference in this Agreement to indemnify a matter being “finally judicially adjudged” shall mean that there shall have been a final decision by a court having jurisdiction in the Indemnitee for matter, all appeals having been exhausted or not having been taken and the time therefor to have expired); (e) incurred in connection with any amounts paid in settlement of a Proceeding unless to which the Company consents in advance in writing to such settlementhas not given its prior written consent or approval, which consent or approval shall not be unreasonably withheld; (df) the Company shall not be obligated pursuant to the terms of this Agreement to indemnify the Indemnitee on account of any suit in which if a final judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to within the provisions meaning of Section l6(b16(b) of the Securities Exchange Act of 1934, as amended or similar provisions of any federal, state or local statutory lawamended; (eg) incurred in connection with a Proceeding involving the Company shall not be obligated pursuant to the terms acts or omissions of this Agreement to indemnify the Indemnitee and in connection with which the Indemnitee’s acts or omissions have been finally judicially adjudged, or admitted by Indemnitee, in writing under oath, to constitute knowingly fraudulent or deliberately dishonest conduct or to have constituted willful misconduct; (h) if a final decision by a court having jurisdiction in the matter it shall determine be finally judicially adjudged that such indemnification is not lawful; and; (fi) in respect to Proceedings initiated or brought voluntarily by the Indemnitee and not by way of defense, except in respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement, applicable law, any other agreement or provision of the Articles or Bylaws (which shall be governed by the immediately following subsection (j)); provided that such indemnification or advancement of Expenses may be provided by the Company shall in specific cases if the Board of Directors finds it to be appropriate; (j) in respect to Proceedings initiated or brought voluntarily by the Indemnitee and not be obligated pursuant by way of defense, unless Indemnitee is successful in establishing the Indemnitee’s right to indemnification in such Proceeding, in whole or in part, or unless and to the terms extent that the court in such Proceeding shall determine that, despite the Indemnitee’s failure to establish his or her right to indemnification, the Indemnitee is entitled to indemnity for such Liabilities; provided that nothing in this subsection (j) is intended to limit the Company’s obligation with respect to the advancement of this Agreement Expenses to make any payment Indemnitee in connection with any a Proceeding instituted by the Indemnitee to enforce this Agreement, as provided in Section 5 hereof; or (k) in connection with Proceedings involving the extent Indemnitee has otherwise actually received payment enforcement (under any insurance policy including by means of injunctive or otherwiseother equitable relief) of non-compete and/or non-disclosure agreements or the amounts otherwise indemnifiable under this Agreementnon-compete and/or non-disclosure provisions of employment, consulting or similar agreements that the Indemnitee may be a party to with the Company, any subsidiary of the Company or any other applicable foreign or domestic corporation, partnership, joint venture, trust or other enterprise, if any.