Common use of Payment of Indemnification Obligation Clause in Contracts

Payment of Indemnification Obligation. All indemnification ------------------------------------- payments by an Indemnifying Party hereunder shall be made within thirty (30) days after (a) such claim is accepted by the Indemnifying Party or (b) final judgment is rendered thereon by an arbitration tribunal or court of competent jurisdiction. The amount of any indemnification payment shall be net of all insurance proceeds received by the Indemnified Party with respect to the claim for which indemnification is being made. All indemnification payments shall be effected by payment of cash or delivery of a cashier's or certified check in the amount of the indemnification liability; provided, that if RM is the -------- Indemnifying Party, it may elect to pay up to 19.314% of the amount of any indemnification payment by delivering to the Indemnified Party a portion of the Buyer Shares then held by RM. Any such shares shall be valued at the higher of $5.00 per share or the average closing price of shares of the Buyer's Common Stock on the principal market where such shares are traded during the fifteen (15) trading days immediately preceding the date on which such shares are delivered by RM to the Indemnified Party. Payment shall be made to the Indemnified Party making such claim, provided that, if the Buyer is the -------- Indemnified Party, it may elect to have payment made to the Company. The parties shall treat all indemnification payments as either a reimbursement to the party making the original payment or as a reduction in the Purchase Price paid by the Buyer, as appropriate to achieve the most beneficial tax and accounting treatment for both parties. In the event that treating the payment as either reimbursement or a reduction of the Purchase Price will have a positive tax and accounting effect for one of the parties and no negative tax or accounting effect for the other party, the payment shall be so treated. If one party will benefit from one form of treatment at the expense of the other, the parties shall treat the payment for tax and accounting purposes to minimize taxes and, subsidiarily, in a manner which favors the Indemnified Party.

Payment of Indemnification Obligation. All indemnification ------------------------------------- payments by an Indemnifying Party hereunder shall be made within thirty (30) days after (a) such Other than in connection with (i) a breach of the representations or warranties contained in Section 4.1 (Organization), Section 4.2 (Capitalization), Section 4.3 (Authorization), Section 4.10 (Environmental Compliance), Section 4.14 (Tax Matters), or Section 4.19 (Employee Benefit Plans) (collectively, the “Fundamental Representations”), (ii) a claim is accepted for indemnification based on fraud or intentional misrepresentation by the Indemnifying Party Company (a “Fraud Claim”), (iii) a claim for indemnification related to the Parent D&O Obligations, or (biv) final judgment is rendered thereon by a claims for indemnification related to a Dissenters’ Rights Claims, the sole recourse of an arbitration tribunal or court of competent jurisdiction. The amount of any indemnification payment shall be net of all insurance proceeds received by the Indemnified Party with respect is limited to the claim for which indemnification is being made. All indemnification payments shall be effected by payment of cash or delivery of a cashier's or certified check amount then on deposit in the amount of the indemnification liability; provided, that if RM is the -------- Indemnifying Party, it may elect to pay up to 19.314% of the amount of any indemnification payment by delivering to the Indemnified Party a portion of the Buyer Shares then held by RM. Any such shares shall be valued at the higher of $5.00 per share or the average closing price of shares of the Buyer's Common Stock on the principal market where such shares are traded during the fifteen (15) trading days immediately preceding the date on which such shares are delivered by RM to the Indemnified Party. Payment shall be made to the Indemnified Party making such claim, provided that, if the Buyer is the -------- Indemnified Party, it may elect to have payment made to the Company. The parties shall treat all indemnification payments as either a reimbursement to the party making the original payment or as a reduction in the Purchase Price paid by the Buyer, as appropriate to achieve the most beneficial tax Escrow Fund and accounting treatment available for both partiesdistribution therefrom. In the event that treating the payment as either reimbursement Escrow Fund is insufficient to pay any Indemnified Party any amounts owed to such Indemnified Party (other than for claims based on breach of a Fundamental Representation, a Fraud Claim, indemnification related to the Parent D&O Obligations, or indemnification related to a reduction Dissenters’ Rights Claims), the Indemnified Parties shall not be entitled to collect any remaining amounts not satisfied from the Escrow Fund from the Company Holders or any other Person, and none of the Purchase Price will Company Holders, nor any other Person, shall have any liability for any such deficiency. (b) In connection with a positive tax and accounting effect claim for one indemnification based on the breach of a Fundamental Representation, related to the parties and no negative tax Parent D&O Obligations, or accounting effect for the other partyrelated to a Dissenters’ Rights Claims, the payment initial recourse of an Indemnified Party shall be so treatedto the amount then on deposit in the Escrow Fund and available for distribution therefrom. If one party will benefit In the event that the Escrow Fund is insufficient to pay an Indemnified Party any amounts owed to such Indemnified Party in connection with a claim for indemnification based on breach of a Fundamental Representation, related to the Parent D&O Obligations, or related to a Dissenters’ Rights Claim, each Company Holder, in accordance with such Company Holder’s Indemnification Share, shall indemnify and hold such Indemnified Party harmless from one form and against the portion of treatment at such Losses not satisfied from the expense of the otherEscrow Fund. (c) In connection with a claim for indemnification based on a Fraud Claim, the parties initial recourse of an Indemnified Party shall treat be to the payment amount then on deposit in the Escrow Fund and available for tax distribution therefrom. In the event that the Escrow Fund is insufficient to pay an Indemnified Party any amounts owed to such Indemnified Party in connection with a claim for indemnification based on a Fraud Claim, the Company Holders shall jointly and accounting purposes to minimize taxes and, subsidiarily, in severally indemnify and hold such Indemnified Party harmless from and against all of such Losses not satisfied from the Escrow Fund. (d) Upon a manner which favors final determination of an indemnification claim made by the Indemnified Party, whether such final determination is by reason of (i) a failure of the Indemnifying Party to timely object to an Indemnification Notice or (ii) the mutual agreement of the Indemnifying Party and the Indemnified Party, or (iii) a final judgment of a court of competent jurisdiction which is either not subject to any further appeals or the time for giving notice to take such appeals has lapsed and no such notice was filed, then the amount of the Losses stated in such claim or otherwise agreed to or awarded (collectively, a “Final Determination”), as the case may be, shall, subject to the limitations of this Section 11, be paid by the Indemnifying Party first from the amount then on deposit in the Escrow Fund and then in cash or by cashier’s check or by wire transfer of immediately available funds.

Payment of Indemnification Obligation. All indemnification ------------------------------------- payments by an Indemnifying Party hereunder shall be made within thirty (30) days after (a) such Upon (i) a final determination of an indemnification claim is accepted by the Indemnifying Party or (b) final judgment is rendered thereon made by an arbitration tribunal Indemnified Party pursuant to this Article 12, whereby such final determination is by reason of (ii) the mutual agreement of Parent and AIT in accordance with the terms of this Agreement and the Escrow Agreement, (iii) a failure of AIT to object to an indemnification notice under Section 12.04 of this Agreement or a Claim Certificate (as defined in the Escrow Agreement) in accordance with the procedures set forth herein and in the Escrow Agreement, (iv) a final, nonappealable judgment of a court of competent jurisdiction, (v) a final, binding, and conclusive decision of an arbitrator or arbitrators pursuant to the Escrow Agreement or (vi) a determination of an indemnification claim with respect to Covered Taxes pursuant to the procedures set forth in Article 10, then the amount of the Damages stated in such claim or otherwise agreed to or determined, as applicable, shall first be paid from the Escrow Fund out of the Escrow Cash Holdback in cash and out of the Escrow Stock Holdback in shares of Parent Stock, each at the applicable Escrow Proportion, up to the amount of the Escrow Holdback, subject to the terms of the Escrow Agreement. Then, subject to the Applicable Caps, AIT shall pay to Parent the portion of the aggregate Merger Consideration, if any, that AIT has not distributed to the AIT Members. (b) Parent agrees that in the event of any breach giving rise to an indemnification obligation of AIT hereunder (other than an indemnification obligation with respect to Taxes), Parent shall take, or cooperate with AIT if so requested by it in order to take, all reasonable measures to mitigate the consequences of the related breach (including taking reasonable steps to prevent any contingent liability from becoming an actual liability). (c) The amount of any claim by an Indemnified Party for indemnification payment pursuant to Section 12.02 shall be computed net of all aggregate amounts actually recovered under any indemnity agreement, contribution agreement, or other contract (other than an insurance proceeds received by policy) between the Parent, the Company or any other Affiliated entity, on the one hand, and any third party, on the other hand. Each Indemnified Party shall use commercially reasonable efforts to seek recovery under any insurance policy or any indemnification agreement, contribution agreement or other contract with respect any other third party that would reasonably be expected to the claim for which indemnification is being made. All indemnification payments shall be effected by payment of cash or delivery of a cashier's or certified check in the amount of the indemnification liabilityavailable to reimburse any Damages; provided, that if RM is an Indemnified Party shall not be required to file any claim with respect to any such insurance coverage (i) in the -------- Indemnifying Partyevent that such Indemnified Party has other claims under such insurance policies that, it may elect to pay up to 19.314% when taken together with such Damages, would exceed the policy limits of the amount of any indemnification payment by delivering applicable insurance policies, or (ii) where such Indemnified Party reasonably concludes that seeking insurance coverage for such Damages would materially and adversely affect such Indemnified Party’s claims history, insurance premium, or ability to renew or replace such insurance coverage on acceptable terms. If the Indemnified Party a portion of the Buyer Shares actually receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment related to such Damages by AIT, then held by RM. Any such shares Indemnified Party shall be valued at the higher of $5.00 per share or the average closing price of shares of the Buyer's Common Stock on the principal market where such shares are traded during the fifteen (15) trading days immediately preceding the date on which such shares are delivered by RM to the Indemnified Party. Payment shall be promptly reimburse AIT for any payment made to the Indemnified Party making for such claim, provided that, if the Buyer is the -------- Indemnified Party, it may elect to have payment made Damages (up to the Company. The parties shall treat all indemnification payments as either a reimbursement amount received by the indemnified party, but not to exceed the party making the original payment or as a reduction in the Purchase Price amount of such Damages actually paid by the Buyerindemnifying party), as appropriate net of (x) any expenses incurred by such Indemnified Party in collecting such amounts, (y) the net present value of any increase in premiums that arises out of or relates to achieve the most beneficial tax relevant claim and accounting treatment for both parties. In the event (z) any portion of Damages incurred by such Indemnified Party that treating the payment as either reimbursement or a reduction of the Purchase Price will such Indemnified Party would have a positive tax and accounting effect for one of the parties and no negative tax or accounting effect been entitled to receive from AIT but for the other party, Deductible Amount or the Applicable Caps. (d) Parent and AIT agree to treat any indemnification payment shall be so treated. If one party will benefit from one form of treatment at pursuant to Section 12.02 as an adjustment to the expense of the other, the parties shall treat the payment Merger Consideration for tax and accounting all Tax purposes to minimize taxes and, subsidiarily, in a manner which favors the Indemnified Partyunless otherwise required by Applicable Law.

Payment of Indemnification Obligation. All The Seller and the Stockholder hereby agree that any claim for indemnification ------------------------------------- by the Buyer under this Section 9 or under any other provision of this Agreement may, at the Buyer's option, be set off against the Buyer's obligation to make earn-out payments by pursuant to Sections 1.3(c) and 1.8; provided, however, that Buyer shall pay such set off amounts into an Indemnifying Party hereunder shall be made within thirty (30) days after (a) escrow account mutually agreeable to Buyer and the Stockholder until such time as the indemnification claim is accepted by the Indemnifying Party or (b) final judgment is rendered thereon by an arbitration tribunal or court of competent jurisdictionresolved in full. The amount of any indemnification payment Any interest 31 earned on such escrow account shall be net of all insurance proceeds received by the Indemnified Party with respect inure to the claim for which indemnification is being madebenefit of the party prevailing on the matter. All indemnification payments by the Buyer or the Seller and the Stockholder hereunder (to the extent not satisfied in the manner specified in the preceding sentence) shall be effected by payment of cash or delivery of a cashier's or certified check in the amount of the indemnification liability; provided, that if RM is the -------- Indemnifying Party, it may elect to pay up to 19.314% of the amount of any indemnification payment by delivering to the Indemnified Party a portion of the Buyer Shares then held by RM. Any such shares shall be valued at the higher of $5.00 per share or the average closing price of shares of the Buyer's Common Stock on the principal market where such shares are traded during the fifteen (15) trading days immediately preceding the date on which such shares are delivered by RM to the Indemnified Party. Payment shall be made to the Indemnified Party making such claim, provided that, if the Buyer is the -------- Indemnified Party, it may elect to have payment made to the Company. The parties shall treat all indemnification payments as either a reimbursement to the party making the original payment or as a reduction in the Purchase Price paid by the Buyer, as appropriate to achieve the most beneficial tax and accounting treatment for both parties. In the event that treating the payment Buyer shall receive insurance proceeds pursuant to an unexpired insurance policy of Seller or Buyer, as either reimbursement or the case may be, with respect to a reduction of matter Buyer is seeking indemnification hereunder, any amount required to be paid by the Purchase Price will have a positive tax Seller and accounting effect for one of the parties and no negative tax or accounting effect for the other party, the payment Seller Stockholder pursuant to such indemnification obligation shall be so treatednet of any such insurance proceeds. If one party will benefit In the event Buyer makes a claim on its insurance policy relating to a Loss for which Seller has an indemnification obligation pursuant to this Section 9, Seller shall pay any increase in insurance premiums resulting directly and proximately from one form such claim by Buyer on such insurance policy for a period of treatment at thirty (30) months following such increase; provided, however, that in no event shall such amount exceed the expense original claim for indemnification. Buyer shall provide Seller with such documentation relating to such increase as shall be reasonably necessary to establish the amount of such increase attributable to the other, the parties shall treat the payment for tax and accounting purposes to minimize taxes and, subsidiarily, in a manner which favors the Indemnified Partyclaim.