Common use of Transaction Related Indemnification Clause in Contracts

Transaction Related Indemnification. The Selling Shareholders, each on his, her or its own behalf and on behalf of his or her successors, executors, administrators, estate, heirs and assigns (collectively, for the purposes of this Article VIII, the “Shareholder Indemnifying Parties”) and the Company on its own behalf and on behalf of its successors and assigns (the “Company Indemnifying Parties” and collectively with the Shareholder Indemnifying Parties, the “Indemnifying Parties”), subject to the limitations set forth in Section 8.03 below, agree, to defend, indemnify and hold the Investors, their respective affiliates and direct and indirect partners (including partners of partners and stockholders and members of partners), members, stockholders, directors, officers, employees and agents and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Investor Indemnified Parties” and, individually, an “Investor Indemnified Party”), harmless from and against any and all damages, liabilities, losses, claims, obligations, liens, assessments, judgments, taxes, fines, penalties, reasonable costs and expenses (including, without limitation, reasonable fees of a single counsel representing the Investor Indemnified Parties), as the same are incurred, of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) (“Losses”) which may be sustained or suffered by any such Investor Indemnified Party based upon, arising out of, or by reason of (a) any breach of a representation or warranty made by a Selling Shareholder or the Company contained in this Agreement, the Transaction Documents or any certificate or other writing delivered pursuant hereto or thereto (other than a Fundamental Representation), (b) any breach of a Fundamental Representation by a Selling Shareholder or by the Company or (c) any breach of any covenant made by a Selling Shareholder or the Company in this Agreement, the Transaction Documents or any certificate or other writing delivered pursuant hereto or thereto.

Transaction Related Indemnification. The Selling ShareholdersMajor Stockholder, each on his, her or its his own behalf and on behalf of his or her successors, executors, administrators, estate, heirs and assigns (collectively, for the purposes of this Article VIII, the “Shareholder Stockholder Indemnifying Parties”) and the Company on its own behalf and on behalf of its successors and assigns (the “Company Indemnifying Parties” and collectively with the Shareholder Indemnifying Parties, the “Indemnifying PartiesParty”), subject to the limitations set forth in Section 8.03 below, agree, to defend, shall indemnify and hold the Investors, their respective affiliates and direct and indirect partners (including partners of partners and stockholders and members of partners)Affiliates, members, stockholdersshareholders, directors, officers, employees and agents and each person Person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Investor Indemnified Parties” and”) (or, individuallyat the sole option of the Investors with respect to any matter subject to indemnification under this Section 5.2, an “Investor Indemnified Party”the Company), harmless from and against for any and all damages, liabilities, losses, claims, obligations, liens, assessments, judgments, taxesTaxes, fines, penalties, reasonable costs and expenses (including, without limitation, including reasonable fees of a single counsel representing the Investor Indemnified Parties), as the same are incurred, of any kind or nature whatsoever (counsel) whether or not arising out of third-third party claims and including all reasonable amounts paid in investigation, defense or settlement of the foregoing) foregoing (those items so indemnified against, after taking into account any mitigating or offsetting benefits, including, without limitation, the present value of benefits attributable to Taxes, insurance proceeds or any indemnity, contribution or similar payment recovered or reasonably likely to be recovered by the Investor Indemnified Parties, or the Company as the case may be, from any Person other than the Major Stockholder, “Losses”) which that may be sustained or suffered by any such Investor Indemnified Party Party, or the Company as the case may be, based upon, arising out of, of or by reason of (a) any breach of a any representation or warranty made by a Selling Shareholder or of the Company Major Stockholder contained in this Agreement, the Transaction Documents or any certificate or other writing delivered pursuant hereto or thereto (Agreement other than a Fundamental Representation)any breach of the representations and warranties contained in Section 2.11 to the extent such matters are the subject of separate indemnification pursuant to Section 5.2(c) hereof, (b) any breach of a Fundamental Representation by a Selling Shareholder covenant or agreement made by the Company Major Stockholder in this Agreement or in any certificate, document or instrument delivered in connection with the transactions contemplated hereby, or (c) the assertion against the Company or any breach of its Subsidiaries of any covenant made by a Selling Shareholder or liability relating to the failure of the Company in this Agreement, the Transaction Documents or any certificate of its Subsidiaries to accrue and pay all sales and use Taxes or other writing delivered pursuant payroll Taxes incurred by them with respect to any Tax period ending on or prior to the Closing Date and the failure of the Company or any of its Subsidiaries to timely file correct Tax Returns with respect thereto. The parties hereto or theretoshall report any indemnification payments hereunder as a purchase price adjustment to the extent permitted by applicable law.

Transaction Related Indemnification. The Selling Shareholders(a) Each of the Stockholders acknowledges and agrees that the Investors have relied on the representations, each warranties, covenants and other agreements of the Stockholders and the Company contained herein in connection with their acquisition of the Convertible Preferred Stock and willingness to provide the Company with the proceeds required to consummate the Redemption. Accordingly, the Stockholders severally and not jointly, on his, her or its own behalf and on behalf of his his, her or her its successors, executors, administrators, estate, heirs and assigns (collectively, for the purposes of this Article VIIISection 5.2, the “Shareholder Indemnifying Parties”"STOCKHOLDER PARTIES", and each individually, a "STOCKHOLDER PARTY") and (or, at the Company on its own behalf and on behalf sole option of its successors and assigns (the “Company Indemnifying Parties” and collectively Investors with the Shareholder Indemnifying Partiesrespect to any matter subject to indemnification under this Section 5.2, the “Indemnifying Parties”Company) agree (on a pro-rata basis based on the relative proceeds received by each such Stockholder in the Redemption), subject to the limitations set forth in Section 8.03 below, agree, to defend, indemnify and hold the Investors, their respective affiliates and direct and indirect partners (including partners of partners and stockholders and members of partners), members, stockholders, directors, officers, employees and agents and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act, (collectively, the “Investor Indemnified Parties” "INVESTOR PARTIES" and, individually, an “Investor Indemnified Party”), "INVESTOR PARTY") harmless from and against any and all damages, liabilities, losses, claims, diminution in value, obligations, liens, assessments, judgments, taxesTaxes, fines, penalties, reasonable costs and expenses (including, without limitation, reasonable fees of a single counsel representing the Investor Indemnified Parties), as the same are incurred, of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoingforegoing and consequential damages) (“Losses”"LOSSES") which that may be sustained or suffered by any such Investor Indemnified Party based upon, arising out of, or by reason of (ai) any breach of a any representation or warranty made by a Selling Shareholder or the Company contained or such Stockholders, as applicable, in Section 2 of this Agreement; (ii) the generation, transport, use, handling, processing, disposal, storage, release or treatment of the Transaction Documents or substance 0, 0, 0 xxxxxxxxxxxxxxxxx (XXX) ("XXX") at the property located at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx; (iii) any certificate settlement, judgment or other writing delivered pursuant hereto or thereto (other than a Fundamental Representation), (b) any breach of a Fundamental Representation by a Selling Shareholder or payment by the Company or any of its subsidiaries in excess of $250,000 with respect to the Company's dispute with Xxxxxxx Scientific Pte Ltd. (c"Xxxxxxx") in connection with services performed by Xxxxxxx for the Company, or (iv) any trademark infringement claims by White Eagle Systems Technology, Inc. (or its successors or assigns) with respect to the use by the Company of the name "Eagle Test Systems" or a derivative thereof. (b) The Investor Parties jointly and severally agree to defend, indemnify and hold the Stockholder Parties harmless from and against any and all Losses that may be sustained or suffered by any such Stockholder Party based upon, arising out of, or by reason of any breach of any covenant representation or warranty made by a Selling Shareholder or the Company Investors in Section 3 of this Agreement, the Transaction Documents or any certificate or other writing delivered pursuant hereto or thereto.

Transaction Related Indemnification. (a) The Selling Shareholders, each Founding Stockholders (on his, her or its own their behalf and on behalf of his or her their successors, executors, administrators, estate, heirs heirs, assigns and assigns any transferees of the proceeds received by a Founding Stockholder in the transactions contemplated by this Agreement, including, without limitation, any members of a Founding Stockholder's family (collectively, for the purposes of this Article VIIISection 9, the “Shareholder "Indemnifying Parties”) and the Company on its own behalf and on behalf of its successors and assigns (the “Company Indemnifying Parties” and collectively with the Shareholder Indemnifying Parties, the “Indemnifying Parties”"), subject to the limitations set forth in Section 8.03 belowjointly and severally, agree, agree to defend, indemnify and hold the Investors, their respective affiliates and respective direct and indirect partners (including partners of partners and stockholders and members of partners), members, stockholders, directors, officers, employees and agents each of the foregoing and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended, (collectively, parties receiving the “Investor benefit of the indemnification agreement herein shall be referred to collectively as "Indemnified Parties” and, individually, " and individually as an “Investor "Indemnified Party”), ") harmless from and against any and all damages, liabilities, losses, claims, obligations, liens, assessments, judgments, taxesTaxes, fines, penalties, reasonable costs costs, and expenses (including, including without limitation, reasonable fees of a single counsel representing the Investor Indemnified Partiescounsel), as the same are incurred, of any kind or nature whatsoever ("Claims") (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) (“Losses”) which may be sustained or suffered by any such Investor Indemnified Party (a "Loss" or "Losses"), based upon, arising out of, or by reason of or otherwise in respect of or in connection with: (ai) any inaccuracy in or breach of a any representation or warranty made by a Selling Shareholder or the Company contained Indemnifying Parties in this Agreement, or in any Schedule or certificate delivered by or on behalf of the Transaction Documents Indemnifying Parties as part of or pursuant to this Agreement, or any certificate claim, action or other writing delivered pursuant hereto proceeding asserted or thereto instituted or arising out of any matter or thing covered by such representations or warranties (other than a Fundamental Representationcollectively, "Warranty Claims"), ; (b) any breach of a Fundamental Representation by a Selling Shareholder or by the Company or (cii) any breach of any covenant or agreement pertaining to matters relating to the period prior to the Closing made by a Selling Shareholder or on behalf of the Company Indemnifying Parties in this Agreement, or in any Schedule, exhibit or certificate delivered by or on behalf of the Transaction Documents Indemnifying Parties as part of or pursuant to this Agreement; (iii) any liability or Loss of the Company for Taxes (including any liability for state sales taxes in excess of the $1.4 million accrued on the Company's financial statements) in respect of any period ending or any certificate transaction or business occurring on or before the Closing Date, including without limitation, any increase in Taxes due to the unavailability of any loss or deduction claimed by the Company; or The rights of Indemnified Parties to recover indemnification in respect of any occurrence referred to in either of clause (ii) or (iii) of this Section 9.2(a) shall not be limited by the fact that such occurrence may not constitute an inaccuracy in or breach of any representation, warranty or agreement referred to in clause (a) of this Section 9.2. (b) The right of Indemnified Parties to indemnification under Section 9.1 shall be subject to the following provisions: (i) Indemnification with respect to Warranty Claims shall expire on the thirtieth (30th) day following delivery to the Investors of audited financial statement for the Company's 1999 fiscal year; provided, however, that the limitation of this clause (i) shall not apply to Warranty Claims involving fraud, intentional misrepresentation, capitalization (Section 2.3) and Section 2.5(b) hereof or Taxes (collectively, "Primary Warranty Claims"), for which the period for making such claims shall expire on the date which is six (6) months after the termination of the applicable statute of limitations relating thereto. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Warranty Claim as to which indemnity may be payable and a Indemnified Party shall have given notice of such facts to the Founding Stockholders then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given. (ii) No indemnification shall be payable with respect to Warranty Claims (other writing delivered pursuant hereto than Primary Warranty Claims) unless the total of all Warranty Claims exceeds $750,000 in the aggregate, whereupon only the amount of such claims in excess of such amount shall be recoverable in accordance with the terms hereof. (iii) The Indemnifying Parties shall not be obligated to indemnify the Indemnified Parties for Warranty Claims (other than Primary Warranty Claims) after the cumulative amount of all amounts paid by the Indemnifying Parties to the Indemnified Parties with respect thereto exceeds $22,000,000 (the "Maximum Warranty Claim Amount"); provided, however, that no Founding Stockholder shall be obligated to indemnify the Indemnified Parties for Warranty Claims in excess of the amount set forth opposite such Founding Stockholder's, name under the column entitled "Total Redemption Price" in Exhibit A hereto. (iv) In the event of any Loss, the Indemnified Parties shall be required to seek indemnification or theretoreimbursement from the Escrow Fund prior to obtaining recovery from any Indemnifying Party directly, but shall have recourse to the Indemnifying Parties to the extent contemplated herein if and to the extent the Escrow Fund is insufficient fully to provide for such claims, subject to clause (iii) immediately above. Subject to Section 9.4, the Indemnifying Parties shall agree to give prompt direction to the Escrow Agent directing the release of funds to satisfy indemnification or reimbursement obligations arising out of this Section 9.

Transaction Related Indemnification. The Selling Shareholders, each on his, her or its own behalf and on behalf of his or her successors, executors, administrators, estate, heirs and assigns (collectively, for the purposes of a) Subject to this Article VIIIIX, Parent shall, from and after the “Shareholder Indemnifying Parties”) and the Company on its own behalf and on behalf of its successors and assigns (the “Company Indemnifying Parties” and collectively with the Shareholder Indemnifying Parties, the “Indemnifying Parties”), subject to the limitations set forth in Section 8.03 below, agree, to defendClosing Date, indemnify and hold the Investorsharmless Buyer, their respective affiliates and direct and indirect partners (including partners of partners and stockholders and members of partners)its Affiliates, members, stockholdersofficers, directors, officers, employees and agents and employees, and each person Person who controls any of them within the meaning of Section 15 or may control Buyer (each of the Securities Act or Section 20 of the Exchange Act (collectivelyforegoing, the a “Investor Buyer Indemnified Parties” and, individually, an “Investor Indemnified PartyPerson”), harmless ) from and against any and all damageslosses, liabilities, lossesdamages, claims, obligationssuits, lienssettlements, assessmentsreduction in value, judgmentscosts and expenses, taxes, fines, penalties, including reasonable costs of investigation, settlement, and expenses defense and reasonable legal fees, court costs, and any interest costs or penalties (collectively, “Losses”), arising out of, related to or otherwise by virtue of: (i) any failure of any representation or warranty made by Parent or Company in Article II or Article III to be true and correct in all respects as of the date hereof and as of the Closing Date (as though such representation or warranty were made as of the Closing Date); (ii) any breach of any of the covenants or agreements made by Parent or Company in this Agreement; (iii) any Tax Liability imposed on the Company arising from Tax benefits granted to the Company by an PRC Governmental Authority; provided none of Buyer, the Company or any of their respective Affiliates have taken any action or failed to take any action (other than satisfying such Liability) as shall have proximately caused such Governmental Authority to impose such Liability; (iv) any guaranty, letter of credit or similar credit support issued or provided by UTSC for or in respect of any liability of Parent or any Subsidiary of Parent other than the Company and its Subsidiaries; (v) any Excluded Liabilities; (vi) any Contract relating to the Business the execution or performance of which was not in compliance with applicable laws at the time at which it was executed or performed; (vii) any Actions by any Governmental Authority relating to activities of the Company and its Subsidiaries prior to the Closing. (b) Buyer shall not have any right of contribution, right of indemnity or other right or remedy against Parent, Company, any of their respective Subsidiaries or any employees in connection with any indemnification obligation or any other liability to which Buyer may become subject under or in connection with this Agreement. (c) Subject to this Article IX, Buyer shall, from and after the Closing Date, indemnify and hold harmless Parent, its Affiliates, officers, directors, agents and employees, and each Person who controls or may control the Parent or Company (each of the foregoing, a “Parent Indemnified Person” and together with Buyer Indemnified Person, the “Indemnified Person”) from and against any and all Losses arising out of, related to or otherwise by virtue of: (i) any failure of any representation or warranty made by Buyer in Article IV to be true and correct in all respects as of the date hereof and as of the Closing Date (as though such representation or warranty were made as of the Closing Date) (ii) any breach of any of the covenants or agreements made by Buyer in this Agreement; (iii) any Assumed Liability; (iv) the operation of the Purchased Assets by the Buyer and its Subsidiaries after the Closing; (v) conduct of the Business following the Closing; or (vi) any claim by any Transferred Employee for severance or separation payments. (d) Following the Closing, Parent shall not have any right of contribution, right of indemnity or other right or remedy against Buyer, Company, any of their respective Subsidiaries or any employees in connection with any indemnification obligation or any other liability to which Parent may become subject under or in connection with this Agreement. (e) No Indemnified Person’s rights under this Article IX shall be adversely affected by any investigation conducted, or any knowledge acquired or capable of being acquired, by such Indemnified Person at any time, whether before or after the execution or delivery of this Agreement or the Closing, or by the waiver of any condition to the Closing. (f) The amount of any Losses payable under this Article IX shall be net of any amounts actually recovered under applicable insurance policies or from any other persons alleged to be responsible therefor. (g) The Indemnified Person shall mitigate, to the extent required by applicable law, any Losses for which such Indemnified Persons seek indemnification under this Article IX and shall use commercially reasonable efforts to seek any amounts available under insurance coverage or from any other person alleged to be responsible for any Losses payable under this Article IX; it being understood that making a written request for payment from any such insurer or other party shall constitute compliance with this Section 9.2 and that no further efforts, including, without limitation, reasonable fees of a single counsel representing litigation against such insurer or other party, shall be necessary. (h) Except for the Investor Indemnified Parties), as the same are incurred, of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) (“Losses”) which may be sustained or suffered by any such Investor Indemnified Party based upon, arising out of, or by reason of (a) any breach of a representation or warranty made by a Selling Shareholder or the Company contained remedies set forth in this Agreement, this Article IX will provide the Transaction Documents or sole and exclusive remedy for any certificate misrepresentation, breach of warranty, covenant or other writing delivered pursuant hereto or thereto (other than a Fundamental Representation), (b) any breach of a Fundamental Representation by a Selling Shareholder or by the Company or (c) any breach of any covenant made by a Selling Shareholder or the Company in this Agreement, the Transaction Documents or any certificate agreement or other writing delivered pursuant hereto or theretoclaim arising out of this Agreement and the other transactions contemplated hereby except for claims resulting from fraud.

Transaction Related Indemnification. The Selling Each of the Company and the Shareholders acknowledges and agrees that the Buyer and the Funds have relied on the representations, warranties, covenants and other agreements of the Company and the Shareholders contained herein in connection with their investment hereunder and their willingness to provide the funds necessary for the purchase of, or to purchase, the Purchased Shares from the Shareholders. Accordingly, each of the Shareholders severally and not jointly (on a pro rata basis calculated based on the amounts deposited thereby in escrow pursuant to Section 1.8) on his, her or its own behalf and on behalf of his his, her or her its successors, executors, administrators, estate, heirs and assigns (collectively, for the purposes of this Article VIIISection 7.2, the “Shareholder Indemnifying Parties”, and each individually, a “Shareholder Indemnifying Party”) (or, at the sole option of the Buyer and the Company on its own behalf and on behalf of its successors and assigns (the “Company Indemnifying Parties” and collectively Funds with the Shareholder Indemnifying Partiesrespect to any matter subject to indemnification under this Section 7.2, the “Indemnifying Parties”), subject to the limitations set forth in Section 8.03 below, agree, Company) agree to defend, indemnify and hold the InvestorsBuyer, the Funds, their respective affiliates and direct and indirect partners (including partners of partners and stockholders and members of partners), members, stockholders, directors, officers, managers, employees and agents and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act agents, (collectively, the “Investor Buyer Indemnified Parties” and, individually, an a “Investor Buyer Indemnified Party”), ) harmless from and against any and all damages, liabilities, losses, claims, diminution in value, obligations, liens, charges, assessments, judgments, taxes, fines, penalties, reasonable costs and expenses (including, without limitation, reasonable fees of a single counsel representing the Investor Buyer Indemnified Parties), as the same are incurred, of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoingforegoing and consequential damages) (“Losses”) which may be sustained or suffered by any such Investor Buyer Indemnified Party based upon, arising out of, or by reason of of: (a) any breach of a any representation or warranty made by a Selling Shareholder or the Company contained or any Shareholder in this AgreementAgreement (including, without limitation, in the Transaction Documents Disclosure Schedule) or in any certificate or other writing delivered pursuant hereto or thereto (other than a Fundamental Representation), hereto, (b) any breach of a Fundamental Representation by a Selling Shareholder any covenant or agreement made by the Company or any Shareholder in this Agreement or in any certificate delivered pursuant hereto, except with respect to Section 1.10 herein; and (c) any breach (i) injunction in favor of Thermage, Inc., any covenant made of its Affiliates or any of its successors in interest (collectively, “Thermage”), issued as a result of a claim or allegation by Thermage that an RF Product (as defined below) infringes upon or violates (or its manufacture, sale and /or use infringes upon or violates) any of Thermage’s U.S. Patents as of the date of the Closing (including without limitation any divisionals, continuations, continuations-in-part thereof or any Patents issuing from any patent applications claiming priority directly or indirectly to (i) such Patents or (ii) any patents or patent applications from which the Patents claim direct or indirect priority) (each, a Selling Shareholder “Thermage Patent”), which preclude the Company’s or any of its Subsidiaries’ right to sell, manufacture, distribute or otherwise use, its Accent products, Accent Pro products or any other radio frequency-based products (whether now existing or later developed, collectively, the “RF Products”) in the United States, or (ii) any claim or allegation that the RF Products infringe upon or violate (or their manufacture, sale and/or use infringes upon or violates) any Thermage Patent, which results in commercially unreasonable royalty or similar payment obligations by the Company in this Agreement, the Transaction Documents or any certificate or other writing delivered pursuant hereto or theretoof its Subsidiaries (each of (i) and (ii), an “Infringement Indemnity Claim”).

Transaction Related Indemnification. The Selling Shareholders, each on his, her or its own behalf (a) From and on behalf of his or her successors, executors, administrators, estate, heirs and assigns (collectively, for after the purposes of this Article VIII, the “Shareholder Indemnifying Parties”) and the Company on its own behalf and on behalf of its successors and assigns (the “Company Indemnifying Parties” and collectively with the Shareholder Indemnifying Parties, the “Indemnifying Parties”)Closing, subject to this Section 10, the limitations set forth in Section 8.03 below, agree, Company agrees to defend, indemnify and hold the Investors, their respective affiliates officers, directors, partners, investors and Affiliates and direct and indirect partners (including partners of partners and stockholders and members of partners), members, stockholders, directors, officers, employees and agents and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act, (collectively, the “"Investor Indemnified Parties” " and, individually, an “"Investor Indemnified Party”), ") harmless from and against any and all damages, liabilities, losses, claims, obligations, liens, assessments, judgments, taxesTaxes, fines, penalties, reasonable costs and expenses (including, without limitation, reasonable fees of a single counsel representing the Investor Indemnified Parties), as the same are incurred, of any kind or nature whatsoever (whether or not arising out of third-party claims and including all reasonable and out-of-pocket amounts paid in investigation, defense or settlement of the foregoing) (“"Losses”") which may be sustained or suffered by any such Investor Indemnified Party based upon, arising out of, or by reason of any breach of (a) any breach of a representation or warranty made by a Selling Shareholder or the Company contained in Section 2 of this Agreement, the Transaction Documents or any certificate or other writing delivered pursuant hereto or thereto (other than a Fundamental Representation), and (b) any breach of a Fundamental Representation by a Selling Shareholder covenant or other agreement made by the Company in Section 4, Section 5 or Section 6, which exceed individually or in the aggregate $500,000. (b) Notwithstanding anything to the contrary set forth herein, from and after the Closing, the maximum aggregate liability of the Company under this Section 10 or otherwise for Losses shall be equal to the Purchase Price paid by the Investors at the Closing. Subject to the foregoing, no Investor Indemnified Party shall be entitled to recover from the Company for Losses in excess of actual compensatory damages. The Company shall not have any liability for, and the Investor Indemnified Parties waive any right to recover, punitive, incidental, special, exemplary or consequential damages, lost profits or diminution in value, arising in connection with or with respect to this Agreement, except to the extent such damages are payable to an unrelated third party. (c) Each Investor and Investor Indemnified Party acknowledges and agrees that, after the Closing, notwithstanding any breach other provision of this Agreement to the contrary, the sole and exclusive remedies of the Investor Indemnified Parties with respect to claims for Losses or otherwise in connection with, arising out of or resulting from the subject matter of this Agreement and the transactions contemplated hereby shall be limited solely to (i) indemnification under, and in accordance with, the provisions of this Section 10 and (ii) the exercise of any covenant made rights such Investor or Investor Indemnified Party has under Section (B)(6)(b) of Article IV of the Certificate of Incorporation; provided, that such Investors' rights under Section (B)(6)(b) of Article IV of the Certificate of Incorporation shall be considered as a factor when determining the amount of Losses hereunder. (d) Each Investor Indemnified Party shall use commercially reasonable efforts to mitigate all Losses, including availing itself of any commercially reasonable defenses, limitations, rights of contribution, claims against third Persons and other rights at law or equity. The Investor Indemnified Parties' commercially reasonable efforts shall include the reasonable expenditure of money to mitigate or otherwise reduce or eliminate any loss or expenses for which indemnification would otherwise be due. (e) Any Loss shall be net of (i) the dollar amount of any insurance or other proceeds actually received by a Selling Shareholder or the Company in this Agreement, the Transaction Documents any Investor Indemnified Party or any certificate of their Affiliates with respect to the Loss, (ii) the amount of recoveries from any third party actually received by any Investor Indemnified Party, and (iii) the amount of any Tax benefit available to reduce Taxes by any Investor Indemnified Party arising from the incurrence or other writing delivered pursuant hereto or theretopayment of any such Losses. Any party seeking indemnity hereunder shall use commercially reasonable efforts to seek coverage (including both costs of defense and indemnity) under applicable insurance policies with respect to any such Loss; provided that no party is required hereby to maintain any insurance therefor. (f) The Company shall, upon payment of such indemnity, be subrogated in full to all rights of the Investor Indemnified Party with respect to the Loss to which such indemnification relates.

Transaction Related Indemnification. The Selling Shareholders, each on his, her or its own behalf and on behalf of his or her successors, executors, administrators, estate, heirs and assigns (collectively, for the purposes of this Article VIII, the “Shareholder Indemnifying Parties”a) and the Company on its own behalf and on behalf of its successors and assigns (the “Company Indemnifying Parties” and collectively with the Shareholder Indemnifying Parties, the “Indemnifying Parties”), subject to the limitations set forth in Section 8.03 below, agree, Parent agrees to defend, indemnify and hold the Investors, their Buyer and its Affiliates and respective affiliates and direct and indirect partners (including partners of partners and stockholders and members of partners), members, stockholders, directors, officers, employees and agents of the foregoing and each person Person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act, (collectively, parties receiving the benefit of the indemnification agreement under this Section 9.2(a) shall be referred to collectively as “Investor Buyer Indemnified Parties” and, individually, an and individually as a “Investor Buyer Indemnified Party”), ) harmless from and against any and all damages, liabilities, losses, claims, obligations, liens, assessments, judgments, taxesTaxes, fines, penalties, reasonable out of pocket costs and expenses (including, without limitation, including reasonable fees of a single counsel representing and all amounts paid in investigation, defense or settlement of any of the Investor Indemnified Partiesforegoing), as the same are incurred, of any kind or nature whatsoever (whether or not arising out of third-third party claims and including all amounts paid in investigation, defense or settlement of any of the foregoing) (a “Loss” or “Losses”) which may be sustained or suffered by any such Investor Buyer Indemnified Party Party, (for purposes of determining Losses, the representations, warranties, covenants and agreements contained in this Agreement and the Transition Services Agreement and in the schedules hereto, and all certificates and instruments executed and delivered in connection herewith, that are qualified by reference to “material,” “materially,” “material adverse change,” “material adverse effect,” “Material Adverse Effect” or any similar term (collectively, “Materiality Qualifiers”) shall be deemed to have been made and undertaken without giving effect to such Materiality Qualifiers) based upon, arising out of, or by reason of or otherwise in respect of or in connection with: (ai) any inaccuracy in or breach of a any representation or warranty made by a Selling Shareholder the Company or Parent in this Agreement or the Transition Services Agreement, and/or all other certificates and instruments (including all schedules) delivered by or on behalf of the Company contained in or Parent as part of or pursuant to this Agreement, the Transaction Documents or any certificate claim, action or other writing delivered pursuant hereto proceeding asserted or thereto instituted or arising out of any matter or thing covered by such representations or warranties (other than collectively, “Buyer Warranty Claims” and each a Fundamental Representation“Buyer Warranty Claim”), excluding any Buyer Warranty Claims with respect to any representation or warranty set forth in Section 3.13 (bTax Matters), which shall be addressed as set forth in Section 9.2(a)(iii); (ii) any breach of a Fundamental Representation by a Selling Shareholder inaccuracy in or by the Company or (c) any breach of any covenant made by a Selling Shareholder Parent or, prior to the Closing, the Company, in this Agreement or the Transition Services Agreement, and/or all other certificates and instruments (including all schedules) delivered by or on behalf of the Company or Parent as part of or pursuant to this Agreement, or any claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such covenant; (iii) any (A) Buyer Warranty Claim related to any representations or warranties contained in Section 3.13 (Tax Matters), (B) Loss related to Taxes in respect of any Pre-Closing Tax Period, and (C) Taxes of Parent or any member of its affiliate group (within the meaning of Code Section 1504) for any taxable period or portion thereof, except, with respect to (A), (B) and (C), to the extent such Taxes are reflected as a liability in the calculation of the Final Closing Working Capital; and (iv) any act of fraud or intentional misrepresentation by Parent or, prior to the Closing, the Company in connection with the transactions contemplated by this Agreement. The rights of the Buyer Indemnified Parties to recover indemnification in respect of any occurrence referred to in clauses (ii), (iii) and (iv) of this Section 9.2(a) shall not be limited by the fact that such occurrence may or may not also constitute a Buyer Warranty Claim under Section 9.2(a)(i). (b) From and after the Closing, Buyer agrees to defend, indemnify and hold Parent and its Affiliates and respective direct and indirect partners (including partners of partners and stockholders and members of partners), members, stockholders, directors, officers, employees and agents of the foregoing and each Person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, (parties receiving the benefit of the indemnification agreement under this Section 9.2(b) shall be referred to collectively as “Seller Indemnified Parties” and individually as a “Seller Indemnified Party”) harmless from and against any and all Losses which may be sustained or suffered by any such Seller Indemnified Party, based upon, arising out of, by reason of or otherwise in respect of or in connection with: (i) any inaccuracy in or breach of any representation or warranty or covenant, made by Buyer or MergerCo in this Agreement, the Transaction Documents or in any schedule, instrument or certificate delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any certificate claim, action or other writing proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, “Seller Warranty Claims” and each a “Seller Warranty Claim”) (for purposes of determining Losses, the representations and warranties contained in this Agreement, and in the schedules hereto, and all agreements, documents, certificates and instruments executed and delivered in connection herewith that are qualified by Materiality Qualifiers shall be deemed to have been made without giving effect to such Materiality Qualifiers); (ii) any inaccuracy in or breach of any covenant made by Buyer or MergerCo in this Agreement, or any claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such covenant; and (iii) any act of fraud or intentional misrepresentation by Buyer or MergerCo in connection with the transactions contemplated by this Agreement. The rights of the Seller Indemnified Parties to recover indemnification in respect of any occurrence referred to in clauses (ii) and (iii) of this Section 9.2(b) shall not be limited by the fact that such occurrence may or may not also constitute a Seller Warranty Claim under Section 9.2(b). (c) If prior to the relevant date of expiration set forth in Section 9.1, a Buyer Indemnified Party or Seller Indemnified Party (collectively referred to herein as “Indemnified Parties,” or individually as an “Indemnified Party”) shall have given written notice of a claim pursuant hereto to Section 9.4 below to Parent or theretoBuyer, as applicable, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of.

Transaction Related Indemnification. The (a) Each Selling Shareholders, each Stockholder (other than Greylock) (on his, her or its own behalf and on behalf of his or her its successors, executors, administrators, estate, heirs heirs, and assigns assigns) (collectively, for the purposes of this Article VIIISection 8, the “Shareholder "Indemnifying Parties”) and the Company on its own behalf and on behalf of its successors and assigns (the “Company Indemnifying Parties” and collectively with the Shareholder Indemnifying Parties, the “Indemnifying Parties”"), subject to the limitations set forth in Section 8.03 belowseverally and not jointly, agree, agrees to defend, indemnify and hold the Investors, their respective affiliates and respective direct and indirect partners (including partners of partners and stockholders and members of partners), members, stockholders, directors, officers, employees employees, attorneys and agents of each of the foregoing and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, parties receiving the “Investor benefit of the indemnification agreement herein shall be referred to collectively as "Indemnified Parties” and, individually, " and individually as an “Investor "Indemnified Party”), ") harmless from and against any and all damages, liabilities, losses, claims, obligations, liensdeficiencies, actions, suits, proceedings, demands, assessments, orders, judgments, taxes, fines, Taxes, penalties, reasonable costs and expenses (including, including without limitation, reasonable fees of a single counsel representing the Investor Indemnified Parties)counsel, as the same are incurred, accountants or consultants) of any kind or nature whatsoever ("Claims") (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) (“Losses”) which may be sustained or suffered by any such Investor Indemnified Party (a "Loss" or "Losses"), based upon, arising out of, or by reason of or otherwise in respect of (ai) any inaccuracy in or breach of a any representation or warranty made by a Selling Shareholder or the Company contained and/or such Indemnifying Party in this Agreement, the Transaction Documents or in any Schedule or certificate or other writing delivered pursuant hereto or thereto (other than a Fundamental Representation), (b) any breach of a Fundamental Representation by a Selling Shareholder or by the Company or (c) any breach by or on behalf of any covenant made by a Selling Shareholder such Indemnifying Party as part of or the Company in pursuant to this Agreement, the Transaction Documents or any certificate claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such inaccuracy in or breach of such representations or warranties (collectively, the "Warranty Claims") or (ii) the litigation matter described in Item 2 of SECTION 2.15 OF THE DISCLOSURE SCHEDULE but only to the extent Losses related to such litigation matter exceed $200,000 (the "Litigation Claims"); PROVIDED, that Loss and Losses shall not include any special, indirect, consequential or speculative damages. For purposes of clarification, losses suffered or sustained by the Company shall not give rise to indemnification hereunder unless to the extent the same results in a Loss to an Indemnified Party. (b) The right of Indemnified Parties to indemnification under Section 8.2(a) shall be subject to the following provisions: (i) Indemnification with respect to Warranty Claims shall expire on September 30, 1999; PROVIDED, HOWEVER, that the limitation of this clause (i) shall not apply to Warranty Claims involving fraud or intentional misrepresentation or under the last sentence of Section 2.2(a) and Sections 2.4(b) and 2.12 hereof (collectively, the "Primary Warranty Claims"), for which the period for making such claims shall expire on the date which is six (6) months after the termination of the applicable statute of limitations relating thereto. Following such respective dates, such representations and warranties and, subject to the next sentence, Warranty Claims shall expire. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Warranty Claim as to which indemnity may be payable and an Indemnified Party shall have given reasonable notice of such facts and Warranty Claims to the Selling Stockholders then the right to indemnification with respect thereto shall remain in effect solely to the extent stated in the Warranty Claim without regard to when such matter shall [Stock Purchase and Redemption Agreement] have been finally determined and disposed of, according to the date on which notice of the applicable claim is given. Indemnification with respect to Litigation Claims shall expire on the date which is six (6) months after the date such Litigation Claims are finally settled in writing or finally adjudicated and disposed of. (ii) No indemnification shall be payable with respect to Warranty Claims (other writing delivered than Primary Warranty Claims) and/or Litigation Claims unless the total of all Warranty Claims and/or Litigation Claims exceeds $1,000,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof. (iii) No Indemnifying Party shall be obligated to indemnify the Indemnified Parties for Warranty Claims (other than Primary Warranty Claims) and/or Litigation Claims in an aggregate amount which exceeds the lesser of (A) (x) the total amount received by such Indemnifying Party pursuant to the redemption of such Indemnifying Party's Redemption Shares as set forth in Sections 1.2 hereof less (y) the sum of the aggregate amount of federal and state Taxes paid by such Indemnifying Party with respect thereto and, in the case of Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx and Xxxxx Xxxxxxx who have acquired or are acquiring shares to be redeemed hereunder upon the exercise of stock options, the aggregate exercise price thereof or (B) such Indemnifying Party's pro rata share as set forth opposite such Indemnifying Party's name in the section of EXHIBIT A relating to such Indemnifying Party for such Warranty Claims (the aggregate amount payable under this Section 8.2(b)(iii) shall be referred to as the "Maximum Warranty Claim Amount"). (iv) The Indemnifying Parties identified with an asterisk in EXHIBIT A attached hereto shall not be obligated to indemnify the Indemnified Parties for Warranty Claims under Sections 2.4(a) and 2.17(a) hereof or theretowith respect to Litigation Claims hereunder. (v) The amount of any Losses suffered, sustained, incurred or required to be paid by any Indemnifying Party shall be reduced (A) by the amount of any insurance proceeds paid as a result of such Loss, (B) to take account of any Tax Benefit to the Indemnified Party and (C) by the amount of any recoveries from third parties. As used herein, the term "Tax Benefit" shall mean the Federal, state and local tax savings that have resulted or will result from any tax deduction or tax credit that (x) the Indemnified Party has claimed or will claim on a Federal, state or local tax return and (y) is directly attributable to such Loss.