Common use of Agreement to Indemnify Clause in Contracts

Agreement to Indemnify. (a) (i) Shockwave will indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave and its officers, directors, agents, representatives, shareholders and employees, and each person, if any, who controls or may control Shockwave within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSON" and collectively as "SHOCKWAVE INDEMNIFIED PERSONS") from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and expenses including reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as "DAMAGES") directly or indirectly incurred, resulting or and arising out of any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom in this Agreement or in the Atom Disclosure Letter or in any certificate delivered by or on behalf of Atom or an officer of Atom pursuant hereto; or, in the case of a Claim made by the Representatives (as defined below), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim made by Shockwave or the Representatives under this Section 11.2(a) must be raised in a writing delivered to the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to the amount of Damages asserted in any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, in the case of any such withheld shares, upon the resolution of such Claim(s).

Agreement to Indemnify. (a) (i) Shockwave will indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave Acquiror and its officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave Acquiror within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a an "SHOCKWAVE ACQUIROR INDEMNIFIED PERSON" and collectively as "SHOCKWAVE ACQUIROR INDEMNIFIED PERSONS") shall be indemnified and held harmless from and against any and all claimslosses, demands, suits, actions, causes of actions, lossesreductions in value, costs, damages, liabilities Liabilities and expenses (including reasonable attorneys' fees, other professionals' and experts' reasonable fees fees, costs of investigation and court or arbitration costs), calculated net of actual recoveries under existing insurance policies (net of any applicable collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums) (hereinafter collectively referred to as "DAMAGES"), arising from assessments, taxes, claims, demands, assertions of liability, or actual or threatened actions, suits or proceedings (whether civil, criminal, administrative or investigative) directly or indirectly incurredarising out of, resulting from or and arising out in connection with: (i) any failure of any inaccuracy, misrepresentation, breach of, representation or default in, any warranty made by the Company in this Agreement or the Company Disclosure Letter (including the schedules thereto) to be true and correct as of the representationsdate of this Agreement and as of the Closing Date (as though such representation or warranty were made as of the Closing Date, warranties or covenants given or made by, except in the case of representations and warranties which by their terms speak only as of a Claim specific date or dates); (as defined in Section 11.5ii) any failure of any certification, representation or warranty made by Shockwave Indemnified Persons, Atom the Company in any certificate delivered to Acquiror pursuant to any provision of this Agreement (other than the Closing Financial Certificate) to be true and correct as of the date such certificate is delivered to Acquiror; (iii) any breach of or default in connection with any of the covenants or agreements made by the Company in this Agreement or the Company Disclosure Letter (including the schedules thereto); (iv) any inaccuracies in the Atom Disclosure Letter Spreadsheet or in any certificate delivered by or on behalf of Atom or an officer of Atom pursuant hereto; or, the draft Closing Financial Certificate resulting in the case excess of a Claim made by the Representatives (Company Closing Assets over Company Closing Liabilities as defined below), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim made by Shockwave or the Representatives under this Section 11.2(a) must be raised in a writing delivered to the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to the amount of Damages asserted in any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, set forth in the case of Closing Financial Certificate to be less than $6,600,000; (v) any such withheld shares, upon the resolution of such Claim(s)Indemnifiable Merger Expenses; or (vi) any Dissenting Shares Excess Payments.

Agreement to Indemnify. (a) (i) Shockwave After the Closing, each Effective Time Holder will severally, and not jointly, based on each Effective Time Holder’s Pro Rata Share, indemnify and hold harmless Acquirer, the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" Surviving Company and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS")directors, will indemnify and hold harmlessmanaging members, Shockwave and its managers, officers, directors, agents, representatives, shareholders stockholders, unitholders and employees, and each personPerson, if any, who controls or may control Shockwave Acquirer or the Surviving Company within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSON" and collectively as "SHOCKWAVE INDEMNIFIED PERSONS") each, an “Indemnified Person” and, collectively, the “Indemnified Persons”), from and against any and all claims, demands, suits, actions, causes of actions, losses, reductions in value, costs, damages (excluding in all cases punitive damages), liabilities Liabilities and expenses expenses, including reasonable attorneys' ’ fees, other professionals' ’ and experts' ’ reasonable fees fees, and court or arbitration costs (hereinafter collectively referred to as "DAMAGES") collectively, “Damages”), directly or indirectly incurred, paid or accrued in connection with, resulting from or and arising out of of: (i) any inaccuracy, misrepresentation, breach of, misrepresentation or default in, or breach of, any of the representations, representations or warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Company in this Agreement or in Agreement, the Atom Company Disclosure Letter or in any agreement, certificate or document delivered by or on behalf of Atom Company or an officer of Atom Company pursuant heretohereto (excluding the Net Working Capital Certificate and the Spreadsheet); or(ii) any failure of any Effective Time Holder to have good and valid title to the Company Units, or Company Options held by such Effective Time Holder as set forth in the case Spreadsheet or any inaccuracy in the Spreadsheet; (iii) any default in, or breach of, any of a Claim the covenants made by the Representatives (as defined below), Shockwave Company in this Agreement, the Shockwave Company Disclosure Letter or in any agreement, certificate or document delivered by or on behalf of Shockwave Company or an officer of Shockwave Company pursuant hereto. Except ; (iv) any of the matters set forth on the Company Disclosure Letter that constitutes an exception to Section 3.6; or (v) any inaccuracy in the Net Working Capital Certificate as determined pursuant to the procedures set forth in Section 2.6, including with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim made by Shockwave or the Representatives under this Unpaid Transaction Expenses (as defined in Section 11.2(a12.7) must be raised that would have resulted in a writing delivered to reduction in the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereofTotal Merger Consideration. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to In determining the amount of any Damages asserted in any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, in the case respect of any inaccuracy, misrepresentation or default in, or breach of, any representation, warranty or covenant, any materiality standard or qualification contained in such withheld shares, upon the resolution of such Claim(s)representation or warranty shall be disregarded.

Agreement to Indemnify. (a) (i) Shockwave The Kendara Stockholders will indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Kendara Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 3.4.1(a) to this Agreement ("PRO RATA BASIS")Agreement, will indemnify and hold harmless, Shockwave Excite@Home and its the Surviving Corporation and their respective officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave Excite@Home or the Surviving Corporation within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSONExcite@Home Indemnified Person" and collectively as "SHOCKWAVE INDEMNIFIED PERSONSExcite@Home Indemnified Persons") from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and expenses including including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as "DAMAGESDamages") directly or indirectly incurred, resulting or and arising out of of: (a) any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Kendara in this Agreement or in the Atom Kendara Disclosure Letter or in any certificate delivered by or on behalf of Atom Kendara or an officer of Atom Kendara pursuant hereto; or, in the case of a Claim made by the Representatives or (b) any Excess Transaction Expenses (as defined belowin Section 13.7), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Founder Special Damages, Non-Founder Special Damages or Stockholder Damages, which may be raised after the Release Date, any Claim claim of indemnity made by Shockwave or the Representatives an Excite@Home Indemnified Person under this Section 11.2(a) must be raised in a writing delivered to the other party Representative (as defined below) by no later than the Release Date and, if raised by such date, such Claim will claim shall survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to the amount of Damages asserted in any Claim claim (as defined in Section 11.5) which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will shall be released to the Atom Shareholders Kendara Stockholders on the Release Date or, in the case of any such withheld shares, upon the resolution of such Claim(s).

Agreement to Indemnify. Subject to the limitations set forth in this Article 12, from and after the Effective Time of the First Merger, each Effective Time Holder shall severally (a) (i) Shockwave will based on each such holder’s Pro Rata Share), and not jointly, indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave Acquiror and its officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave Acquiror within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSON" an “Acquiror Indemnified Person” and collectively as "SHOCKWAVE INDEMNIFIED PERSONS"“Acquiror Indemnified Persons”) from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities Liabilities and expenses (including reasonable attorneys' ’ fees, other professionals' ’ and experts' reasonable fees ’ fees, costs of investigation and court or arbitration costs), calculated net of actual recoveries under existing insurance policies (net of any applicable collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums) (in each case excluding lost profits) (hereinafter collectively referred to as "DAMAGES") directly “Damages”), arising from assessments, claims, demands, assertions of liability, or actual or threatened actions, suits or proceedings (whether civil, criminal, administrative or investigative)directly or indirectly incurredarising out of, resulting from or and arising out in connection with: (i) any failure of any inaccuracy, misrepresentation, breach of, representation or default in, any of the representations, warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom in this Agreement or in the Atom Disclosure Letter or in any certificate delivered by or on behalf of Atom or an officer of Atom pursuant hereto; or, in the case of a Claim warranty made by the Representatives (as defined below), Shockwave Company in this Agreement, the Shockwave Company Disclosure Letter (including all schedules to such letter) or the Disclosure Letter Update (including all schedules to such update) to be true and correct as of the date of this Agreement and as of the Closing Date (as though such representation or warranty were made as of the Closing Date, except in the case of representations and warranties which by their terms speak only as of a specific date or dates); (ii) any failure of any certification made by the Company in any certificate delivered by to Acquiror pursuant Article 10 of this Agreement (other than the Closing Expenses Certificate) to be true and correct as of the date such certificate is delivered to Acquiror; (iii) any breach of or on behalf default in connection with any of Shockwave the covenants or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim agreements made by Shockwave or the Representatives under Company in this Section 11.2(aAgreement; (iv) must be raised in a writing delivered to the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to the amount of Damages asserted in any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, inaccuracies in the case of Closing Expenses Certificate or Spreadsheet; (v) any such withheld shares, upon the resolution of such Claim(s)Indemnifiable Merger Expenses; or (vi) any Dissenting Shares Excess Payments.

Agreement to Indemnify. (a) (i) Shockwave The Company Stockholders will jointly and severally indemnify and hold harmless HNC and the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" Surviving Corporation and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave and its officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave HNC or the Surviving Corporation within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a an "SHOCKWAVE INDEMNIFIED PERSON" and collectively as "SHOCKWAVE INDEMNIFIED PERSONS") from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, demonstrable damages, liabilities and expenses including including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as "DAMAGES") directly or indirectly incurred, resulting or incurred and arising out of any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by, in by the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Company in this Agreement or in the Atom Company Disclosure Letter or in any certificate delivered by or on behalf of Atom or an officer of Atom the Company pursuant hereto; or, in (if such inaccuracy, misrepresentation, breach or default existed at the case Closing Date). Any claim of a Claim indemnity made by the Representatives (as defined below), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim made by Shockwave or the Representatives Indemnified Person under this Section 11.2(a) 11.2 must be raised in a writing delivered to the other party Escrow Agent by no later than the Escrow Release Date andDate. As used herein, if raised by such date, such Claim the term "Damages" will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to not include any overhead costs of HNC personnel and the amount of Damages asserted in incurred by any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, Indemnified Person will be released to reduced by the Atom Shareholders on the Release Date or, in the case amount of any insurance proceeds actually received by such withheld shares, upon the resolution Indemnified Person on account of such Claim(s)Damages and the amount of any direct tax savings actually recognized by such Indemnified Person that are directly attributable to such Damages, but will include any reasonable costs or expenses incurred by such Indemnified Person to recover such insurance proceeds or to obtain such tax savings. The Indemnified Persons will use reasonable efforts to mitigate their Damages.

Agreement to Indemnify. From and after the Effective Time, ---------------------- Parent and the Surviving Corporation and their respective officers, directors, agents, and employees, and each person who controls or may control Parent or the Surviving Corporation within the meaning of the Securities Act and who suffers Damages (aas defined below) (i) Shockwave will indemnify and hold harmless in the Atom Shareholders capacity as such controlling person (each of Parent, the Surviving Corporation and each such officer, director, agent, employee and controlling person is hereinafter referred to individually as an "ATOM INDEMNIFIED PERSONIndemnified Person" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave and its officers, directors, agents, representatives, shareholders and employees, and each person, if any, who controls or may control Shockwave within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSON" and collectively as "SHOCKWAVE INDEMNIFIED PERSONSIndemnified Persons") will be ------------------ ------------------- indemnified and held harmless from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, demonstrable damages, liabilities and expenses including including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as "DAMAGESDamages") directly or indirectly incurred, resulting or incurred and arising ------- out of any inaccuracy, misrepresentation, breach of, or default in, any of the representationsrepresentations (except for the representation in Section 2.10(i)), warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Company in this Agreement or in the Atom Disclosure Letter or in any certificate delivered pursuant to Section 8.1 or 8.2 hereof by or on behalf of Atom the Company pursuant hereto (if such inaccuracy, misrepresentation, breach or an officer default existed at the Closing Date) in accordance with the provisions of Atom pursuant hereto; or, in this Article 10 and the case Escrow Agreement. Any claim of a Claim indemnity made by the Representatives (as defined below), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim made by Shockwave or the Representatives Indemnified Person under this Section 11.2(a) 10.2 must be raised in a writing delivered to the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated asserted pursuant to Section 11.3(a)) equal to Sections 4 and 5 of the Escrow Agreement. As used herein, the term "Damages" will not include any ------- overhead costs of Parent personnel and the amount of Damages asserted in incurred by any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, Indemnified Person will be released to reduced by the Atom Shareholders on the Release Date or, in the case amount of any insurance proceeds actually received by such withheld shares, upon the resolution Indemnified Person on account of such Claim(s)Damages and the amount of any direct tax savings actually recognized by such Indemnified Person that are directly attributable to such Damages, but will include any reasonable costs or expenses incurred by such Indemnified Person to recover such insurance proceeds or to obtain such tax savings. The Indemnified Persons will use reasonable efforts to mitigate their Damages.

Agreement to Indemnify. Subject to the terms and conditions of Article XII, the Principal Shareholders agree, and each other Shareholder will (a) (i) Shockwave will to the extent of the Escrow Fund deposited in escrow pursuant to Section 3.4 and the Escrow Agreement), jointly and severally indemnify and hold harmless SportsLine and the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" Surviving Corporation and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave and its officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave SportsLine or the Surviving Corporation within the meaning of the Securities 1933 Act or the Exchange 1934 Act (each hereinafter referred to individually as a an "SHOCKWAVE INDEMNIFIED PERSONIndemnified Person" and collectively as "SHOCKWAVE INDEMNIFIED PERSONSIndemnified Persons") from and against (i) the full amount of all Excess Debt and/or Transaction Expenses that are not deducted in the calculation of the Merger Consideration in accordance with Section 3.1; (ii) any and all claims, demands, suits, actions, proceedings, investigations, audits, causes of actions, losses, costs, damages, liabilities liabilities, costs and expenses including including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as "DAMAGESDamages") (excluding any Damages to the extent recovered by SportsLine or the Surviving Corporation from any third party under any contract with such party or under any applicable insurance policy) that are directly or indirectly incurred, resulting result from or and arising arise out of any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by, in by DWWC or the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Principal Shareholders in this Agreement or in the Atom Disclosure Letter or in any certificate delivered by or on behalf of Atom DWWC or an officer of Atom the Principal Shareholders pursuant hereto; orand (iii) any Special Damages. In determining the amount of any Damage attributable to a breach, any materiality standard or knowledge qualification contained in a representation, warranty or covenant of DWWC shall be disregarded. Subject to the case terms and conditions of Article XII, SportsLine agrees to indemnify and hold harmless the Shareholders from and against any Damages (excluding any Damages to the extent recovered by a Claim Shareholder from any third party under any contract with such party or under any applicable insurance policy) that are directly or indirectly incurred, result from or arise out of any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by the Representatives (as defined below), Shockwave SportsLine Companies in this Agreement, the Shockwave Disclosure Letter Agreement or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave the SportsLine Companies pursuant hereto. Except with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim made by Shockwave or the Representatives under this Section 11.2(a) must be raised in a writing delivered to the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to In determining the amount of Damages asserted any Damage attributable to a breach, any materiality standard or knowledge qualification contained in any Claim which has not been resolved pursuant to 58 60 a representation, warranty or covenant of the terms hereof prior to the Release Date, will SportsLine Companies shall be released to the Atom Shareholders on the Release Date or, in the case of any such withheld shares, upon the resolution of such Claim(s)disregarded.

Agreement to Indemnify. (a) (i) Shockwave The Webshots Shareholders will indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but ---------------------- and not jointly, on a pro rata basis based upon on their respective percentage ownership interests in the escrowed portion of the Atom Webshots Common Stock and Atom Preferred Stock set forth besides beside their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS")Exhibit A, will indemnify and hold harmless, Shockwave harmless At Home and its the Surviving Corporation and --------- their respective officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave At Home or the Surviving Corporation within the meaning of the Securities 1933 Act or the Exchange 1934 Act (each hereinafter referred to individually as a an "SHOCKWAVE INDEMNIFIED PERSONIndemnified Person" and collectively as "SHOCKWAVE INDEMNIFIED PERSONSIndemnified Persons") from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and expenses including including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as "DAMAGESDamages") directly or indirectly incurred, resulting or and arising out of of: (a) any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Webshots in this Agreement or in the Atom Webshots Disclosure Letter or in any certificate delivered by or on behalf of Atom Webshots or an officer of Atom Webshots pursuant heretohereto (if such inaccuracy, misrepresentation, breach or default existed at the Closing Date); or, in the case of a Claim made by the Representatives (b) any Excess Transaction Expenses (as defined belowin Section 14.7) or (c) any failure of Webshots, with respect to stock-based consideration delivered to any of the Webshots Shareholders in exchange for services rendered, to have withheld and deposited, or otherwise paid, to the appropriate tax authorities in calendar year 1999, all taxes (including but not limited to federal and state income taxes, FICA, Medicare, FUTA and other taxes) required to be withheld and deposited, or otherwise paid, in 1999 (a "Withholding Failure"). Each Webshots Shareholder will indemnify and hold harmless each of the Indemnified Persons from and against any and all Damages directly or indirectly incurred, Shockwave resulting or arising out of (i) any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by such Webshots Shareholder in this AgreementArticle 4 (if such inaccuracy, misrepresentation, breach or default existed at the Shockwave Disclosure Letter Closing Date) or (ii) any breach of any covenant of such Webshots Shareholder set forth in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant heretoSection 14.2. Except with respect to claims arising from Special DamagesDamages (as defined below) and claims arising from a Withholding Failure, which may be raised after the Release Date, any Claim claim of indemnity made by Shockwave or the Representatives an Indemnified Person under this Section 11.2(a) 12.2 must be raised in a writing delivered to the other party Representative (as defined below) by no later than the Release Date Date, and, if raised by such date, such Claim will claim shall survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to the amount of Damages asserted in any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, in the case of any such withheld shares, upon the resolution of such Claim(s).

Agreement to Indemnify. (a) (i) Shockwave Each Effective Time Holder will severally, and not jointly, based on each Effective Time Holder’s Pro Rata Share, indemnify and hold harmless Acquirer, the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" Surviving Company and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS")directors, will indemnify and hold harmless, Shockwave and its officers, directors, agents, representatives, shareholders stockholders and employees, and each personPerson, if any, who controls or may control Shockwave Acquirer or the Surviving Company within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSON" and collectively as "SHOCKWAVE INDEMNIFIED PERSONS") each, an “Indemnified Person” and, collectively, the “Indemnified Persons”), from and against any and all claims, demands, suits, actions, causes of actions, losses, reductions in value, costs (including settlement costs), damages, liabilities Liabilities and expenses expenses, including reasonable attorneys' ’ fees, other professionals' ’ and experts' ’ reasonable fees fees, and court or arbitration costs (hereinafter collectively referred to as "DAMAGES") collectively, “Damages”), directly or indirectly incurred, paid or accrued in connection with, resulting from or and arising out of of: (a) any inaccuracy, misrepresentation, breach of, misrepresentation or default in, or breach of, any of the representations, representations or warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Company in this Agreement or in Agreement, the Atom Company Disclosure Letter or in any agreement, certificate or document delivered by or on behalf of Atom Company or an officer of Atom Company pursuant heretohereto (excluding the Net Working Capital Certificate and the Spreadsheet); or, (b) any failure of any Effective Time Holder to have good and valid title to the shares of Company Capital Stock or Company Options held by such Effective Time Holder as set forth in the case Spreadsheet or any inaccuracy in the Spreadsheet; (c) any default in, or breach of, any of a Claim the covenants made by the Representatives (as defined below), Shockwave Company in this Agreement, the Shockwave Company Disclosure Letter or in any agreement, certificate or document delivered by or on behalf of Shockwave Company or an officer of Shockwave Company pursuant hereto. Except with respect ; (d) any of the matters set forth on the Schedule 3.6 to claims arising from Special Damagesthe Company Disclosure Letter or that is or would be an exception to the representations and warranties made in Section 3.6 (Litigation); (e) any inaccuracy in the Spreadsheet, which may be raised after the Release Date, any Claim made by Shockwave Net Working Capital Certificate or the Representatives under this Section 11.2(aClosing Expenses Certificate; (f) must be raised any Indemnifiable Transaction Expenses and (g) the Specified Claim (as defined in a writing delivered to the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereofSchedule 11.3). Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to In determining the amount of any Damages asserted in any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, in the case respect of any inaccuracy, misrepresentation or default in, or breach of, any representation, warranty or covenant, any materiality standard or qualification contained in such withheld shares, upon the resolution of such Claim(s)representation or warranty shall be disregarded.

Agreement to Indemnify. (a) (i) Shockwave Each Company Noteholder will severally, and not jointly, based on each Company Noteholder’s Pro Rata Share, indemnify and hold harmless Acquirer, the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" Surviving Corporation and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS")directors, will indemnify and hold harmless, Shockwave and its officers, directors, agents, representatives, shareholders stockholders and employees, and each personPerson, if any, who controls or may control Shockwave Acquirer or the Surviving Corporation within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSON" and collectively as "SHOCKWAVE INDEMNIFIED PERSONS"each, an “Indemnified Person” and, collectively, the “Indemnified Persons”) from and against any and all claims, demands, suits, actions, causes of actions, losses, reductions in value, costs, damages, liabilities Liabilities and expenses expenses, including reasonable attorneys' ’ fees, other professionals' ’ and experts' ’ reasonable fees fees, and court or arbitration costs without reduction for any tax benefit (hereinafter collectively referred to as "DAMAGES") collectively, “Damages”), directly or indirectly incurred, paid or accrued in connection with, resulting from or and arising out of of: (i) any inaccuracy, misrepresentation, breach of, misrepresentation or default in, or breach of, any of the representations, warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Company in this Agreement or in Agreement, the Atom Company Disclosure Letter or in any agreement, certificate or document delivered by or on behalf of Atom Company or an officer of Atom Company pursuant hereto; or, (ii) (A) any claim of any interest in Sub or Acquirer by Genesys Telecommunications Laboratories, Inc. (“Genesys”) based on a warrant of the case Company held by Genesys as of the Closing, any exercise or attempted exercise of such warrant by Genesys following the Closing, or any claim by Genesys of a Claim made breach of such warrant by the Representatives Company, Sub or Acquirer, or (as defined below), Shockwave in this Agreement, the Shockwave Disclosure Letter B) any infringement or in claimed infringement by Company of any certificate delivered by patents of Genesys or on behalf any of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damages, which may be raised after the Release Date, its Affiliates (any Claim made by Shockwave or the Representatives claim under this Section 11.2(asubsection (ii) must shall hereinafter be raised in referred to as a writing delivered to the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to the amount of Damages asserted in any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, in the case of any such withheld shares, upon the resolution of such Claim(s“Special Indemnity Claim”).

Agreement to Indemnify. (a) (i) Shockwave Each Company Stockholder will severally, and not jointly, based on each Company Stockholder's Pro Rata Share and in accordance with the provisions of this Article 11 and the Escrow Agreement, indemnify and hold harmless Acquirer, the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" Surviving Corporation and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave and its officers, directors, agents, representatives, shareholders stockholders and employees, and each personPerson, if any, who controls or may control Shockwave Acquirer or the Surviving Corporation within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a an "SHOCKWAVE INDEMNIFIED PERSONIndemnified Person" and collectively as "SHOCKWAVE INDEMNIFIED PERSONSIndemnified Persons") from and against any and all claims, demands, suits, actions, causes of actions, losses, reductions in value, costs, damages, liabilities Liabilities and expenses expenses, including reasonable attorneys' fees, other professionals' and experts' reasonable fees fees, and court or arbitration costs (hereinafter collectively referred to as "DAMAGESDamages") directly or indirectly incurred, paid or accrued by an Indemnified Person in connection with or resulting from or and arising out of of: (i) any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Company in this Agreement or in Agreement, the Atom Company Disclosure Letter or in any agreement, certificate or document delivered during the period from the Agreement Date through the Effective Time (inclusive) by or on behalf of Atom Company or an officer of Atom Company pursuant hereto; orhereto or (ii) any payments paid with respect to Dissenting Shares pursuant to Section 7.3 to the extent that such payments, in the case aggregate, exceed the value of a Claim made by all cash and shares of Acquirer Common Stock (valued at the Representatives (as defined below), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim made by Shockwave or the Representatives under this Section 11.2(aAcquirer Average Price Per Share) must be raised in a writing delivered to the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated otherwise issuable pursuant to Section 11.3(a)2.2(b) equal to upon conversion of such Dissenting Shares; provided, however, that the term "Damages" will not include any overhead costs of Acquirer personnel and the amount of Damages asserted in incurred by any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, Indemnified Person will be released to reduced by the Atom Shareholders on the Release Date or, in the case amount of any insurance proceeds actually received by such withheld shares, upon the resolution Indemnified Person on account of such Claim(s)Damages and the amount of any direct tax savings actually recognized by such Indemnified Person that are directly attributable to such Damages, but will include any reasonable costs or expense incurred by such Indemnified Person to recover such insurance proceeds or to obtain such tax savings. The Indemnified Persons will use reasonable efforts to mitigate their Damages.

Agreement to Indemnify. (a) (i) Shockwave will Subject to the limitations set forth in this Article 12, each Effective Time Securityholder shall severally, and not jointly, indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave and its officers, directors, agents, representatives, shareholders and employees, and each person, if any, who controls or may control Shockwave within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSON" and collectively as "SHOCKWAVE INDEMNIFIED PERSONS") OmniVision Indemnified Person from and against any and all Damages arising from assessments, claims, demands, suitsassertions of liability, or actual or threatened actions, causes of actionsfines, lossespenalties, costsdefenses, damagesjudgments, liabilities and expenses including reasonable attorneys' feessettlements, other professionals' and experts' reasonable fees and court suits or arbitration costs proceedings (hereinafter collectively referred to as "DAMAGES"whether civil, criminal, administrative or investigative) directly or indirectly incurredarising out of, resulting from or and arising out in connection with: (i) any failure of any inaccuracy, misrepresentation, breach of, representation or default in, warranty made by CDM or any of the representations, warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom in this Agreement or in the Atom Disclosure Letter or in any certificate delivered by or on behalf of Atom or an officer of Atom pursuant hereto; or, in the case of a Claim made by the Representatives (as defined below), Shockwave CDM Officers in this Agreement, the Shockwave CDM Disclosure Letter Letter, any CDM Ancillary Agreement or any exhibit or schedule to this Agreement to be true and correct as of the date of this Agreement and as of the Closing Date (as though such representation or warranty were made as of the Closing Date, except in the case of representations and warranties which by their terms speak only as of a specific date or dates) or any breach thereof; (ii) any failure of any certification, representation or warranty made by CDM or any of the CDM Officers in any certificate delivered to OmniVision pursuant to any provision of this Agreement to be true and correct as of the date such certificate is delivered to OmniVision; (iii) any breach of or default in connection with any of the covenants or agreements made by CDM or on behalf any of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damagesthe CDM Officers in this Agreement, which may be raised after the Release DateCDM Disclosure Letter, any Claim made by Shockwave CDM Ancillary Agreement or any exhibit or schedule to this Agreement; (iv) any inaccuracies in the Representatives Spreadsheet; (v) any Indemnifiable Merger Expenses; (vi) any Dissenting Shares Excess Payments; and (vii) any Damages as a result of or arising under this Section 11.2(aor from, directly or indirectly, (a) must be raised in a writing delivered to the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated any government audit of CDM invoices pursuant to Section 11.3(a)) equal Contracts (for audits relating to all fiscal years of CDM from incorporation of the predecessor entity through September 30, 2004 and fifty percent of the amount of such Damages asserted in any Claim which has not been resolved pursuant for audit adjustments relating to 58 60 fiscal year 2005 (beginning October 1, 2004 and ending September 30, 2005)) and (b) the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, in the case of any such withheld shares, upon the resolution of such Claim(sSection 4.13(r).

Agreement to Indemnify. (a) (i) Shockwave The Velogic Shareholders will indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Velogic Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 3.4.1(a) to this Agreement ("PRO RATA BASIS")the Velogic ----------------- Disclosure Letter, will indemnify and hold harmless, Shockwave Keynote and its the Surviving Corporation and their respective officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave Keynote or the Surviving Corporation within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSONKeynote Indemnified Person" and collectively as "SHOCKWAVE INDEMNIFIED PERSONSKeynote Indemnified Persons") from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and expenses including including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as "DAMAGESDamages") directly or indirectly incurred, resulting or and arising out of of: (a) any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Velogic in this Agreement or in the Atom Velogic Disclosure Letter or in any certificate delivered by or on behalf of Atom Velogic or an officer of Atom Velogic pursuant hereto; or, in the case of a Claim made by the Representatives or (b) any Excess Transaction Expenses (as defined belowin Section 13.7), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Shareholder Damages, which may be raised after the Release Date, any Claim claim of indemnity made by Shockwave or the Representatives an Keynote Indemnified Person under this Section 11.2(a) must be raised in a writing Notice of Claim (as defined in Section 11.5) delivered to the other party Representative (as defined below) by no later than the Release Date and, if raised by such date, such Claim will claim shall survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to the amount of Damages asserted in any Claim (as defined in Section 11.5) which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will shall be released to the Atom Velogic Shareholders on the Release Date or, in the case of any such withheld shares, upon the resolution of such Claim(s).

Agreement to Indemnify. (a) (i) Shockwave will Subject to the limitations set forth in ---------------------- Section 11.3 below, the Enterprise Shareholder agrees to indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave NetSelect and its officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave NetSelect within the meaning of the Securities Act or the Exchange 1933 Act (each hereinafter such persons, together with persons entitled to indemnity under paragraph (b) below, as applicable in context, referred to individually as a an "SHOCKWAVE INDEMNIFIED PERSONIndemnified Person" and collectively as "SHOCKWAVE INDEMNIFIED PERSONSIndemnified Persons") from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and expenses including including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as "DAMAGESDamages") directly or indirectly incurred, resulting or incurred and arising out of any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by, in by Enterprise and/or the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Enterprise Shareholder in this Agreement or in the Atom Disclosure Letter Enterprise Schedule of Exceptions or in any certificate delivered by or on behalf of Atom Enterprise pursuant hereto (if such inaccuracy, misrepresentation, breach or default existed at the Closing Date). Any Damages asserted by an officer Indemnified Person shall be adjusted to reflect the Tax Benefit to such Indemnified Person resulting from the payment of Atom pursuant hereto; orsuch amount, in the case of a Claim made by the Representatives (as defined below), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim made by Shockwave or the Representatives under this Section 11.2(a) must be raised in a writing delivered to the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to and the amount of Damages asserted for purposes of indemnification payments hereunder shall be so adjusted. For these purposes, "Tax Benefit" shall mean the actual reduction in any Claim federal and state taxes (as defined in Section 3.6) paid (determined, if the Indemnified Person is a member of a group with NetSelect that reports its taxes on a consolidated basis, on a consolidated basis) which has not been resolved pursuant to 58 60 does or will result from the terms hereof prior to appropriate tax treatment (as reasonably determined by the Release Date, will be released to Indemnified Person) of such payment of the Atom Shareholders on the Release Date oritem of Damage as a deduction (whether immediate or through depreciation/amortization or otherwise) or credit and, in the case of any determinable actual future Tax Benefit (i.e., a Tax Benefit which will not be realized for the tax year such withheld sharesindemnification payment is made), upon such amount shall be discounted to its present value using a discount rate equal to the resolution Prime Rate as published in The Wall Street Journal as of the date of satisfaction of the claim. Any claim of indemnity made by an Indemnified Person under this Section 11.2 must be asserted no later than the Release Date. An Indemnified Person may not make a claim for indemnification pursuant to Section 11 unless, at the time such Claim(s)assertion of a claim is made, the Indemnified Person has a good faith basis for assertion of the claim.

Agreement to Indemnify. (a) (i) Shockwave Except as hereinafter provided in this Article 11, the Worldprints Founders will jointly and severally, indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS")harmless, and (ii) the Atom Worldprints Shareholders who are not Worldprints Founders will severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Worldprints Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 3.4.1(a) to this Agreement ("PRO RATA BASIS")Agreement, will indemnify and hold harmless, Shockwave Excite@Home and its the Surviving Corporation and their respective officers, directors, agents, representatives, shareholders representatives stockholders and employees, and each person, if any, who controls or may control Shockwave Excite@Home or the Surviving Corporation within the meaning of the Securities 1933 Act or the Exchange 1934 Act (each hereinafter referred to individually as a an "SHOCKWAVE INDEMNIFIED PERSONExcite@Home Indemnified Person" and collectively as "SHOCKWAVE INDEMNIFIED PERSONSExcite@Home Indemnified Persons") from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and expenses including including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as "DAMAGESDamages") directly or indirectly incurred, resulting or and arising out of of: (a) any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by, in the case of by Worldprints or a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Worldprints Founder in this Agreement or in the Atom Worldprints Disclosure Letter or in any certificate certificate, document or instrument delivered by or on behalf of Atom Worldprints or an officer of Atom Worldprints pursuant hereto; or, in the case of a Claim made by the Representatives or (b) any Excess Transaction Expenses (as defined belowin Section 13.7) (collectively, "Ordinary Damages"), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damages or Shareholder Damages, which may be raised after the Release Date, any Claim claim of indemnity made by Shockwave or the Representatives an Excite@Home Indemnified Person under this Section 11.2(a) must be raised in a writing delivered to the other party Representative (as defined below) by no later than the Release Date Date, and, if raised by such date, such Claim will claim shall survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal Notwithstanding anything to the amount of contrary in this Agreement, in no event shall a Worldprints Shareholder that is not also a Worldprints Founder be required to indemnify or hold harmless Excite@Home Indemnified Persons from Damages asserted resulting from any inaccuracy, misrepresentation, breach of, or default in any Claim which has representation, warranty or covenant given or made by a Worldprints Founder in this Agreement that is not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, in the case of any such withheld shares, upon the resolution of such Claim(s)also given or made by Worldprints.

Agreement to Indemnify. Subject to the limitations set forth in this Article 12, from and after the Effective Time of the First Merger, each Effective Time Holder shall severally (a) (i) Shockwave will based on each such holder’s Pro Rata Share), and not jointly, indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave Acquiror and its officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave Acquiror within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSON" an “Acquiror Indemnified Person” and collectively as "SHOCKWAVE INDEMNIFIED PERSONS"“Acquiror Indemnified Persons”) from and against any and all claimslosses, demands, suits, actions, causes of actions, lossesreductions in value, costs, damages, liabilities Liabilities and expenses (including reasonable attorneys' ’ fees, other professionals' ’ and experts' reasonable fees ’ fees, costs of investigation and court or arbitration costs), calculated net of actual recoveries under existing insurance policies (net of any applicable collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums) (hereinafter collectively referred to as "DAMAGES"“Damages”), arising from assessments, taxes, claims, demands, assertions of liability, or actual or threatened actions, suits or proceedings (whether civil, criminal, administrative or investigative) directly or indirectly incurredarising out of, resulting from or and arising out in connection with: (i) any failure of any inaccuracy, misrepresentation, breach of, representation or default in, any of the representations, warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom in this Agreement or in the Atom Disclosure Letter or in any certificate delivered by or on behalf of Atom or an officer of Atom pursuant hereto; or, in the case of a Claim warranty made by the Representatives (as defined below), Shockwave Company in this Agreement, the Shockwave Company Disclosure Letter Letter, any Company Ancillary Agreement or any exhibit or schedule to this Agreement to be true and correct as of the date of this Agreement and as of the Closing Date (as though such representation or warranty were made as of the Closing Date, except in the case of representations and warranties which by their terms speak only as of a specific date or dates); (ii) any failure of any certification, representation or warranty made by the Company in any certificate delivered to Acquiror pursuant to any provision of this Agreement (other than the Dividend Amount Certificate) to be true and correct as of the date such certificate is delivered to Acquiror; (iii) any breach of or default in connection with any of the covenants or agreements made by the Company in this Agreement the Company Disclosure Letter, any Company Ancillary Agreement or any exhibit or schedule to this Agreement; (iv) any of the matters set forth on behalf Company Disclosure Letter that constitutes an exception to Section 4.6 (Litigation); (v) any inaccuracies in the Dividend Amount Certificate or Spreadsheet; (vi) any Indemnifiable Merger Expenses and any Closing Bookings Shortfall Amount; (vii) any Dissenting Shares Excess Payments, (viii) any breaches of Shockwave the representations set forth in the Audited Financial Statements Certification; (ix) any Audit Differential Amount (to the extent not deducted from the Aggregate Stockholder Payments); (x) any amounts, refunds, penalties, expenses or costs arising out of or relating to the matters set forth on Schedule 4.12(a)-2 to the Company Disclosure Letter; (xi) any actual or alleged infringement or misappropriation of any third party Intellectual Property Rights, provided that a (A) the claim, demand, assertion of liability, action, suit or proceeding alleging such infringement or misappropriation (“Escrow IP Litigation”) is first made or brought by an officer unrelated third party against the Acquiror, the Company or the Surviving Entity between the Effective Time of Shockwave pursuant hereto. Except the First Merger and the eighteen-month anniversary of the Effective Time of the First Merger and (B) the third party seeks or obtains (by way of court order, judgment or decree or settlement agreement) either injunctive relief or monetary damages relating to any Company Product or Service or any Company IP Rights (provided that Acquiror will not enter into any such settlement agreement without the consent of the Representative, which will not unreasonably be withheld) (and for the avoidance of doubt, the indemnity provided in this clause (xi) shall apply irrespective of any disclosures in the Company Disclosure Letter and whether or not the Company had knowledge of such potential claim, demand, assertion of liability, action, suit or proceeding or of any basis therefor) (such events, the “Escrow Litigation Events”); or (xii) fraud, willful breach or intentional misrepresentation by the Company or any Company Representative; provided, however, that the Acquiror Indemnified Persons shall not assert claims for Damages with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim made by Shockwave or the Representatives under matter pursuant to this Section 11.2(a) must be raised 12.1 to the extent it would result in a writing delivered to collection of more than 100% of the other party by no later than the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereofapplicable Damages. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to In determining the amount of any Damages asserted in any Claim which has not been resolved pursuant to 58 60 respect of the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, in the case failure of any representation or warranty to be true and correct as of any particular date, any materiality standard contained in such withheld shares, upon the resolution of such Claim(s)representation or warranty shall be disregarded.

Agreement to Indemnify. (a) (i) Shockwave will Stockholders shall indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock set forth besides their names on Schedule 3.4(a)-1 to this Agreement ("PRO RATA BASIS"), will indemnify and hold harmless, Shockwave Natus and its officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave Natus within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSON" “Natus Indemnified Person” and collectively as "SHOCKWAVE INDEMNIFIED PERSONS"“Natus Indemnified Persons”) from and against any and all claimslosses, demands, suits, actions, causes of actions, lossesreductions in value, costs, damages, liabilities and expenses (including reasonable attorneys' ’ fees, other professionals' ’ and experts' reasonable fees ’ fees, costs of investigation and court or arbitration costs), calculated net of actual recoveries under existing insurance policies (net of any applicable collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums) (hereinafter collectively referred to as "DAMAGES"“Damages”), arising from assessments, taxes, claims, demands, assertions of liability, or actual or threatened actions, suits or proceedings (whether civil, criminal, administrative or investigative) directly or indirectly incurredarising out of, resulting from or and arising out in connection with: (a) any failure of any inaccuracy, misrepresentation, breach of, representation or default in, warranty made by Stockholders in this Agreement or the Disclosure Schedule or any exhibit or schedule to this Agreement to be true and correct as of the representationsClosing Date (as though such representation or warranty were made as of the Closing Date, warranties or covenants given or made by, except in the case of representations and warranties which by their terms speak only as of a Claim specific date or dates); (as defined in Section 11.5b) any failure of any certification, representation or warranty made by Shockwave Indemnified Persons, Atom Stockholders in any certificate delivered to Natus pursuant to any provision of this Agreement to be true and correct as of the date such certificate is delivered to Natus; (c) any breach of or default in connection with any of the covenants or agreements made by Stockholders in this Agreement or the Disclosure Schedule; or (d) the actual or alleged contamination described in the Atom Disclosure Letter or in any certificate delivered by or that certain letter from Xxxx Xxxxxx, PC on behalf of Atom or an officer of Atom pursuant hereto; or, in the case of a Claim made by the Representatives (as defined below), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant hereto. Except with respect to claims arising from Special Damages, which may be raised after the Release Date, any Claim made by Shockwave or the Representatives under this Section 11.2(a) must be raised in a writing delivered Company and addressed to the other party by no later than President & CEO of Natus, dated September 29, 2006 (the Release Date and, if raised by such date, such Claim will survive the Release Date until final resolution thereof. Escrow Shares, other than Escrow Shares having a value (calculated pursuant to Section 11.3(a)) equal to the amount of Damages asserted in any Claim which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will be released to the Atom Shareholders on the Release Date or, in the case of any such withheld shares, upon the resolution of such Claim(s“Environmental Letter”).

Agreement to Indemnify. (a) (i) Shockwave The Digital Content Members will indemnify and hold harmless the Atom Shareholders (each hereinafter referred to individually as an "ATOM INDEMNIFIED PERSON" and collectively as "ATOM INDEMNIFIED PERSONS"), and (ii) the Atom Shareholders severally, but not jointly, on a pro rata basis based upon their respective ownership interests in the escrowed portion of the Atom Common Stock and Atom Preferred Stock Digital Content Membership Interests set forth besides their names on Schedule 3.4(a)-1 2.1.1 to this Agreement ("PRO RATA BASIS")Agreement, will indemnify and hold harmless, Shockwave Keynote and its the Surviving Corporation and their respective officers, directors, agents, representatives, shareholders stockholders and employees, and each person, if any, who controls or may control Shockwave Keynote or the Surviving Corporation within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a "SHOCKWAVE INDEMNIFIED PERSONKeynote Indemnified Person" and collectively as "SHOCKWAVE INDEMNIFIED PERSONSKeynote Indemnified Persons") from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and expenses including including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (hereinafter collectively referred to as "DAMAGESDamages") directly or indirectly incurred, resulting or and arising out of of: (a) any inaccuracy, misrepresentation, breach of, or default in, any of the representations, warranties or covenants given or made by, in the case of a Claim (as defined in Section 11.5) made by Shockwave Indemnified Persons, Atom Digital Content in this Agreement or in the Atom Digital Content Disclosure Letter or in any certificate delivered by or on behalf of Atom Digital Content or an officer of Atom Digital Content pursuant hereto; or, in the case or (b) any losses resulting from any claims by any former employees or consultants of a Claim made by the Representatives (as defined below), Shockwave in this Agreement, the Shockwave Disclosure Letter or in any certificate delivered by or on behalf of Shockwave or an officer of Shockwave pursuant heretoDigital Content. Except with respect to claims arising from Special DamagesMember Damages (as defined below), which may be raised after the Release Date, any Claim claim of indemnity made by Shockwave or the Representatives a Keynote Indemnified Person under this Section 11.2(a) must be raised in a writing delivered to the other party Representative (as defined below) by no later than the Release Date and, if raised by such date, such Claim will claim shall survive the Release Date until final resolution thereof. Escrow SharesConsideration, other than Escrow Shares Consideration having a value (calculated pursuant to Section 11.3(a)11.3) equal to the amount of Damages asserted in any Claim claim (as defined in Section 11.5) which has not been resolved pursuant to 58 60 the terms hereof prior to the Release Date, will shall be released to the Atom Shareholders Digital Content Members on the Release Date or, in the case of any such withheld sharescash, upon the resolution of such Claim(s) as defined in Section 11.5).