Common use of General Indemnification Provisions Clause in Contracts

General Indemnification Provisions. Subject to Section 7.1, from and after the Effective Time, Parent and the Surviving Corporation and their respective affiliates, officers, directors, shareholders, representatives and agents (collectively the “Indemnitees”) shall be indemnified and held harmless by each Company Shareholder and each Company Option Holder (each, an “Indemnifying Party”), each of whom shall be severally liable only to the extent of each Indemnifying Party’s pro rata interest in the “Indemnification Reserve” (as defined below), from and against and in respect of any and all Losses incurred by, resulting from, arising out of, relating to, imposed upon or incurred by Parent, the Surviving Corporation or any other Indemnitee by reason of (i) any inaccuracy in or breach of any of Company’s representations, warranties, covenants or agreements contained in this Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby to the extent the indemnifiable Losses with respect thereto exceed, in the aggregate, the Loss Deductible and then only for the amount of indemnifiable Losses in excess of the Loss Deductible, which indemnifiable Losses shall be calculated without giving effect to any materiality or similar limitations or qualifications herein or therein, (ii) any claim by a holder of shares of Company Preferred Stock that are converted to Company Common Stock immediately prior to the Effective Time or that are outstanding immediately prior to the Effective Time that such a holder is entitled to any consideration by virtue of such holding other than as provided in Article II hereof, (iii) all Taxes of Company for any Taxable periods or portions thereof ending on or before the Effective Time, except to the extent such Taxes are included in Closing Indebtedness, (iv) any Negative Adjustment Shortfall, (v) any amounts payable by the Company Shareholders to the Accounting Firm pursuant to Section 2.5, and (vi) any and all reasonable costs and expenses, including reasonable legal fees and expenses, in connection with enforcing the indemnification rights of Parent pursuant to this Section 7.2. After the Effective Time, the Indemnitees’ sole and exclusive remedy for any Losses shall be the ability to seek indemnity with respect to indemnifiable Losses from the Indemnification Reserve pursuant to this Article VII.

General Indemnification Provisions. Subject (a) For the purposes of this Section 8.3 and Section 8.4, the term "Indemnitee" shall refer to the person or persons indemnified, or entitled, or claiming to be entitled, to be indemnified, pursuant to the provisions of Section 7.18.2, from and after the Effective Time, Parent and the Surviving Corporation term "Indemnitor" shall refer to the Shareholders. (b) Within a reasonable time following the determination thereof, an Indemnitee shall give the Indemnitor notice of any matter which an Indemnitee has determined has given or could give rise to a right of indemnification under this Agreement, stating the amount of the Parent Loss, if known, and their respective affiliatesmethod of computation thereof, officers, directors, shareholders, representatives all with reasonable particularity and agents containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations and liabilities of an Indemnitor under this ARTICLE VIII with respect to Parent Losses arising from claims of any third party that are subject to the indemnification provided for in this ARTICLE VIII (collectively the “Indemnitees”"Third Party Claims") shall be indemnified governed by and held harmless contingent upon the following additional terms and conditions: If an Indemnitee shall receive notice of any Third Party Claim, the Indemnitee shall promptly give the Indemnitor notice of such Third Party Claim and shall permit the Indemnitor, at its option, to undertake the defense of such Third Party Claim by each Company Shareholder counsel of its own choice and each Company Option Holder (eachat its expense; provided, an “Indemnifying Party”)however, each that the failure of whom the Indemnitee to notify the Indemnitor during the required notification period shall be severally liable only relieve the Indemnitor from its obligation to indemnify the Indemnitee pursuant to this ARTICLE VIII to the extent that the Indemnitor is materially prejudiced by such failure (whether as a result of each Indemnifying Party’s pro rata interest the forfeiture of substantive rights or defenses or otherwise). If the Indemnitor acknowledges in writing its obligation to indemnify the “Indemnification Reserve” (as defined below)Indemnitee hereunder against any Parent Losses that may result from such Third Party Claims, then the Indemnitor shall be entitled, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its reasonable choice if it gives notice to the Indemnitee within 20 calendar days of the receipt of notice of such Third Party Claim from the Indemnitee of its intention to do so. If the Indemnitor elects to assume and against and in respect control the defense of any and all Losses incurred by, resulting from, arising out of, relating to, imposed upon or incurred by Parentsuch Third Party Claim, the Surviving Corporation Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise or any other Indemnitee by reason settlement of the Third Party Claim, but the fees and expenses of such counsel will be at the expense of the Indemnitee, unless (i) any inaccuracy in or breach of any of Company’s representations, warranties, covenants or agreements contained in this Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby Indemnitor has agreed to the extent the indemnifiable Losses with respect thereto exceed, in the aggregate, the Loss Deductible pay such fees and then only for the amount of indemnifiable Losses in excess of the Loss Deductible, which indemnifiable Losses shall be calculated without giving effect to any materiality or similar limitations or qualifications herein or thereinexpenses, (ii) any claim by a holder of shares of Company Preferred Stock that are converted to Company Common Stock immediately prior to the Effective Time or that are outstanding immediately prior to the Effective Time that such a holder is entitled to any consideration by virtue of such holding relief other than as provided in Article II hereofthe payment of money damages is sought against the Indemnitee, or (iii) all Taxes of Company for any Taxable periods the Indemnitee has been advised by its counsel that there may be one or portions thereof ending on more defenses reasonably available to it which are different from or before the Effective Time, except additional to those available to the extent Indemnitor, and in any such Taxes case that portion of the fees and expenses of such separate counsel that are included in Closing Indebtedness, (iv) any Negative Adjustment Shortfall, (v) any amounts payable reasonably related to matters covered by the Company Shareholders indemnification provided by this ARTICLE VIII will be paid by the Indemnitor. Expenses of counsel to the Accounting Firm pursuant Indemnitee shall be reimbursed on a current basis by the Indemnitor if there is no dispute as to Section 2.5, and (vi) any and all reasonable costs and expenses, including reasonable legal fees and expenses, in connection with enforcing the indemnification rights obligation of Parent the Indemnitor to pay such amounts pursuant to this Section 7.2ARTICLE VIII. After In the Effective Timeevent the Indemnitor exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnitees’ sole Indemnitee shall cooperate with the Indemnitor in such defense and exclusive remedy make available to the Indemnitor, at the Indemnitor's expense, all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnitor. Similarly, in the event the Indemnitee is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to it, at the Indemnitor's expense, all such witnesses, records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnitee. No such Third Party Claim, except the settlement thereof which involves the payment of money only (by a party or parties other than the Indemnitee) and for any Losses which the Indemnitee is released by the third party claimant and is totally indemnified by the Indemnitor, may be settled by the Indemnitor without the written consent of the Indemnitee. No Third Party Claim which is being defended in good faith by the Indemnitor shall be settled by the ability to seek indemnity with respect to indemnifiable Losses from Indemnitee without the Indemnification Reserve pursuant to this Article VIIwritten consent of the Indemnitor.

General Indemnification Provisions. Subject The indemnification obligations under this Agreement shall be subject to Section 7.1, from and after the Effective Time, Parent and the Surviving Corporation and their respective affiliates, officers, directors, shareholders, representatives and agents following provisions: (collectively the “Indemnitees”a) The party seeking indemnification ("Indemnitee") shall be indemnified and held harmless by each Company Shareholder and each Company Option Holder notify the other party (each"Indemnitor") of any Claim against Indemnitee within fifteen (15) days after it has notice of such Claim, an “Indemnifying Party”), each but failure to notify Indemnitor shall in no case prejudice the rights of whom Indemnitee under this Agreement unless Indemnitor shall be severally liable prejudiced by such failure and then only to the extent of each Indemnifying Party’s pro rata interest in such prejudice. Should Indemnitor fail to discharge or undertake to defend Indemnitee against such Claim (with counsel reasonably approved by Indemnitee) within twenty (20) days after Indemnitee gives Indemnitor written notice of the “Indemnification Reserve” (as defined below)same, from then Indemnitee may settle such Claim and against and in respect of any and all Losses incurred byIndemnitor's liability to Indemnitee shall be conclusively established by such settlement, resulting from, arising out of, relating to, imposed upon or incurred by Parent, the Surviving Corporation or any other Indemnitee by reason of (i) any inaccuracy in or breach of any of Company’s representations, warranties, covenants or agreements contained in this Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby to the extent the indemnifiable Losses with respect thereto exceed, in the aggregate, the Loss Deductible and then only for the amount of indemnifiable Losses in excess of such liability to include both the Loss Deductible, which indemnifiable Losses shall be calculated without giving effect to any materiality or similar limitations or qualifications herein or therein, (ii) any claim by a holder of shares of Company Preferred Stock that are converted to Company Common Stock immediately prior to settlement consideration and the Effective Time or that are outstanding immediately prior to the Effective Time that such a holder is entitled to any consideration by virtue of such holding other than as provided in Article II hereof, (iii) all Taxes of Company for any Taxable periods or portions thereof ending on or before the Effective Time, except to the extent such Taxes are included in Closing Indebtedness, (iv) any Negative Adjustment Shortfall, (v) any amounts payable by the Company Shareholders to the Accounting Firm pursuant to Section 2.5, and (vi) any and all reasonable costs and expenses, including reasonable legal attorneys' fees, incurred by Indemnitee in effecting such settlement. Indemnitee shall have the right to employ its own counsel in any such case, but the fees and expenses, expenses of such counsel shall be at the expense of Indemnitee unless: (i) the employment of such counsel shall have been authorized in writing by Indemnitor in connection with enforcing the defense of such action, (ii) Indemnitor shall not have employed counsel to direct the defense of such action, or (iii) Indemnitee shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Indemnitor and in fact asserts such defenses (in which case Indemnitor shall not have the right to direct the defense of such action or to otherwise direct Indemnitee), in any of which events such fees and expenses shall be borne by Indemnitor. (b) The indemnification rights under this Agreement shall also extend to any present or future advisor, trustee, director, officer, partner, member, employee, beneficiary, shareholder, participant or agent of Parent pursuant to this Section 7.2. After the Effective Time, the Indemnitees’ sole and exclusive remedy for or in Indemnitee or any Losses shall be the ability to seek indemnity with respect to indemnifiable Losses from the Indemnification Reserve pursuant to this Article VIIentity now or hereafter having a direct or indirect ownership interest in Indemnitee.

General Indemnification Provisions. Subject (a) For the purposes of this Section 6.04, the term “Indemnitee” shall refer to the person indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Section 7.16.02 or Section 6.03, from and as the case may be; the term “Indemnitor” shall refer to the person having the obligation to indemnify pursuant to such provisions. (b) An Indemnitee shall give written notice (a “Notice of Claim”) to the Indemnitor within ten (10) days after the Effective Time, Parent and the Surviving Corporation and their respective affiliates, officers, directors, shareholders, representatives and agents (collectively the “Indemnitees”) shall be indemnified and held harmless by each Company Shareholder and each Company Option Holder (each, an “Indemnifying Party”), each of whom shall be severally liable only to the extent of each Indemnifying Party’s pro rata interest in the “Indemnification Reserve” (as defined below), from and against and in respect Indemnitee has knowledge of any and all Losses incurred byclaim (including a Third-party Claim, resulting from, arising out of, relating to, imposed upon as hereinafter defined) which an Indemnitee has determined has given or incurred by Parent, could give rise to a right of indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall affect the Surviving Corporation or any other Indemnitee by reason of (i) any inaccuracy in or breach of any of Company’s representations, warranties, covenants or agreements contained in this Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby to the extent the indemnifiable Losses with respect thereto exceed, in the aggregate, the Loss Deductible and then only for the amount of indemnifiable Losses in excess indemnification obligations of the Loss Deductible, which indemnifiable Losses shall be calculated without giving effect to any materiality or similar limitations or qualifications herein or therein, (ii) any claim by a holder of shares of Company Preferred Stock that are converted to Company Common Stock immediately prior to the Effective Time or that are outstanding immediately prior to the Effective Time that such a holder is entitled to any consideration by virtue of such holding other than as provided in Article II hereof, (iii) all Taxes of Company for any Taxable periods or portions thereof ending on or before the Effective TimeIndemnitor hereunder, except to the extent Indemnitor can demonstrate such Taxes failure materially prejudiced such Indemnitor’s ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claim, the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arises. The rights of any party to indemnification or other remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto and an Indemnitee may make a claim hereunder even where the full amount of the Losses is not yet known. (c) If an Indemnitor does not notify in writing the Indemnitee within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such claim. If the Indemnitee and Indemnitor should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law. (d) The obligations and liabilities of an Indemnitor under this Article VI with respect to Losses arising from claims of any third party that are included subject to the indemnification provisions provided for in Closing Indebtednessthis Article VI (“Third-party Claims”) shall be governed by the following additional terms and conditions: the Indemnitee shall promptly deliver to the Notice of Claim in accordance with Section 6.04(b) to the Indemnitor, and upon the written agreement of the Indemnitor that it is obligated to indemnify under this Article VI, the Indemnitor shall have the right to assume and control the defense (including all proceedings on appeal or for review which counsel for the defendant shall deem appropriate) of such Third-party Claim by appropriate proceedings at its sole cost and expense with counsel reasonably acceptable to the Indemnitee, in which case the Indemnitor shall reasonably settle or prosecute such Third-party Claim to a final conclusion. The Indemnitee will have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee and its attorneys and accountants all books and records of the Indemnitor relating to such Third-party Claim, and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Third-party Claim. (e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; (ii) the settlement of which may act as an adverse and binding precedent upon the Indemnitee with respect to similar claims or demands; (iii) involves any criminal Proceeding; (iv) any Negative Adjustment Shortfall, creates a conflict of interest between the Indemnitor and Indemnitee; (v) any amounts payable by the Company Shareholders Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those available to the Accounting Firm pursuant to Section 2.5, and Indemnitor; (vi) the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond the scope of the indemnity provisions in this Article VI; or (vii) the settlement of which may have, in the Indemnitee’s reasonable judgment, a material and adverse effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third-party Claim and fulfil the Indemnitor’s indemnification obligations hereunder with respect thereto upon the Indemnitee’s reasonable request therefor. In any and all reasonable costs and expensessuch event set forth in this subpart (e), including reasonable legal that portion of such fees and expensesexpenses reasonably related to matters covered by the indemnity provisions contained in Article VI will be borne by the Indemnitor. (f) Notwithstanding the foregoing, in connection with enforcing the indemnification rights no compromise or settlement of Parent pursuant to this Section 7.2. After the Effective Time, the Indemnitees’ sole and exclusive remedy for any Losses claim shall be made without the ability consent (not to seek indemnity be unreasonably withheld, conditioned, or delayed) of the Indemnitee unless all Losses related to such claim are paid in full by the Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with respect no admission of wrongdoing against the Indemnitee and its affiliates by the party asserting such claim, and such compromise or settlement excludes any injunctive or non- monetary relief applicable to indemnifiable Losses from the Indemnification Reserve pursuant to this Article VIIIndemnitee or its Affiliates.

General Indemnification Provisions. Subject to Section 7.1, from and after the Effective Time, Parent and the Surviving Corporation and their respective affiliates, officers, directors, shareholders, representatives and agents (collectively the “Indemnitees”) shall be indemnified and held harmless by each Company Shareholder and each Company Option Holder (each, an “Indemnifying Party”), each of whom shall be severally liable only to the extent of each Indemnifying Party’s pro rata interest in the “Indemnification Reserve” (as defined below), from and against and in respect The amount of any and all Losses incurred by, resulting from, arising out of, relating to, imposed upon suffered or incurred by Parent, the Surviving Corporation or any other Indemnitee shall be reduced by reason of (i) any inaccuracy in or breach of any of Company’s representations, warranties, covenants or agreements contained in this Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby to the extent the indemnifiable Losses with respect thereto exceed, in the aggregate, the Loss Deductible and then only for the amount of indemnifiable any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses in excess (and no right of the Loss Deductible, which indemnifiable Losses subrogation shall be calculated without giving effect accrue to any materiality or similar limitations or qualifications herein or therein, (ii) any claim by a holder of shares of Company Preferred Stock that are converted to Company Common Stock immediately prior to the Effective Time or that are outstanding immediately prior to the Effective Time that such a holder is entitled to any consideration by virtue of such holding other than as provided in Article II hereof, (iii) all Taxes of Company for any Taxable periods or portions thereof ending on or before the Effective Timeinsurer hereunder, except to the extent that such Taxes are included in Closing Indebtednesswaiver of subrogation would prejudice any applicable insurance coverage), (iv) including any Negative Adjustment Shortfall, (v) any amounts payable indemnification received by the Company Shareholders Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the Accounting Firm pursuant contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3, as the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to Section 2.5$25,000 (the “Basket”), in which case the applicable Indemnitor shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); provided, however, that the Basket shall not apply to any claims for breaches of any Special Reps; and (viii) no Indemnitor shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as the case may be, to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any and all reasonable costs and expensesadjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), including reasonable legal fees and expensesplus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, in connection that with enforcing the indemnification rights respect to any claims for breaches of Parent pursuant to this Section 7.2. After the Effective Timeany Special Reps, the Indemnitees’ sole Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and exclusive remedy for payable, shall be paid (i) first by applying such amounts against any Losses obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the ability entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek indemnity contribution from either Company or Buyer with respect to indemnifiable Losses from all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Indemnification Reserve pursuant to this Article VIIPurchase Price for all Tax purposes, and no party may take any position inconsistent with such characterization.

General Indemnification Provisions. Subject (a) For the purposes of this Agreement, the term "Indemnitee" shall refer to the Person or Persons indemnified, or entitled, or claiming to be entitled, to be indemnified, pursuant to the provisions of Sections 8.2 or 8.3, as the case may be, the term "Indemnitor" shall refer to the Person or Persons having the obligation to indemnify pursuant to such provisions and "Losses" shall refer to the Sellers' Losses or the Purchaser's Losses, as the case may be. Nothing in this Section 7.1or in this Agreement shall make either party liable for indemnification for amounts of Loss that, with reasonable commercial efforts, the Indemnitee could satisfy through applicable insurance and/or insurance proceeds. (b) An Indemnitee shall give, within thirty (30) calendar days, the Indemnitor notice of any matter which an Indemnitee has determined has given or could give rise to a right of indemnification under this Agreement, stating the amount of the Loss, if known, and method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations and liabilities of the Indemnitor under this Article with respect to Losses arising from and after claims of any third party that are subject to the Effective Time, Parent and the Surviving Corporation and their respective affiliates, officers, directors, shareholders, representatives and agents indemnification provided for in this Article (collectively the “Indemnitees”"Third Party Claims") shall be indemnified governed by and held harmless contingent upon the following additional terms and conditions: if an Indemnitee shall receive notice of any Third Party Claim, the Indemnitee shall give the Indemnitor notice of such Third Party Claim within thirty (30) calendar days (PROVIDED, HOWEVER, that failure to give such notice shall not preclude indemnification under this Article VIII unless there is actual prejudice to the rights of the Indemnitor) and shall permit the Indemnitor, at its option, to participate in the defense of such Third Party Claim by each Company Shareholder counsel of its own choice and each Company Option Holder at its expense. If, however, the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee hereunder against any Losses that may result from such Third Party Claims (each, an “Indemnifying Party”subject to the limitations set forth herein), each of whom then the Indemnitor shall be severally liable only entitled, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the extent Indemnitee within five calendar days; PROVIDED, HOWEVER, that if the Indemnitee shall determine that its interests conflict with those of each Indemnifying Party’s pro rata interest the Indemnitor, the Indemnitee shall be entitled to be represented at the Indemnitee's expense by separate counsel of its choice and to participate in the “Indemnification Reserve” (as defined below), from and against and in respect defense of any and all Losses incurred by, resulting from, arising out of, relating to, imposed upon or incurred by Parentsuch Third Party Claim. In the event the Indemnitor exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Surviving Corporation or any other Indemnitee by reason of (i) any inaccuracy in or breach of any of Company’s representations, warranties, covenants or agreements contained in this Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection shall cooperate with the transactions contemplated hereby or thereby Indemnitor in such defense and make available to the extent Indemnitor, at the indemnifiable Losses with respect Indemnitor's expense, all witnesses, pertinent records, materials and information in the Indemnitee's possession or under the Indemnitee's control relating thereto exceedas is reasonably required by the Indemnitor. Similarly, in the aggregateevent the Indemnitee is, directly or indirectly, conducting the defense against any such Third Party Claim, the Loss Deductible Indemnitor shall cooperate with the Indemnitee in such defense and then make available to the Indemnitee, at the Indemnitor's expense, all such witnesses, records, materials and information in the Indemnitor's possession or under the Indemnitor's control relating thereto as is reasonably required by the Indemnitee. No such Third Party Claim, except the settlement thereof that involves the payment of money only and for which the amount of indemnifiable Losses in excess Indemnitee is released by the third party claimant and is totally indemnified by the Indemnitor, may be settled by the Indemnitor without the written consent of the Loss DeductibleIndemnitee, which indemnifiable Losses consent shall not be calculated without giving effect unreasonably withheld; PROVIDED, HOWEVER, that if a Third Party Claim is brought that relates in part to any materiality or similar limitations or qualifications herein or therein, (ii) any claim by a holder of shares of Company Preferred Stock that are converted to Company Common Stock immediately prior to the Effective Time or that are outstanding immediately prior to the Effective Time that such a holder is entitled to any consideration by virtue of such holding other than as provided in Article II hereof, (iii) all Taxes of Company matters for any Taxable periods or portions thereof ending on or before the Effective Time, except to the extent such Taxes are included in Closing Indebtedness, (iv) any Negative Adjustment Shortfall, (v) any amounts payable by the Company Shareholders to the Accounting Firm pursuant to Section 2.5, and (vi) any and all reasonable costs and expenses, including reasonable legal fees and expenses, in connection with enforcing the which indemnification rights of Parent pursuant to this Section 7.2Agreement may be available and in part to matters for which such indemnification may not be available, a party may settle any segregable portion of such Third Party Claim as to which such indemnification may not be available. After Similarly, no Third Party Claims that is being defended in good faith by the Effective Time, the Indemnitees’ sole and exclusive remedy for any Losses Indemnitor shall be settled by the ability Indemnitee without the written consent of the Indemnitor; PROVIDED, HOWEVER, that, if a Third Party Claim is brought that relates in part to seek indemnity with respect to indemnifiable Losses from the Indemnification Reserve matters for which indemnification pursuant to this Article VIIAgreement may be available and in part to matters for which such indemnification may not be available, a party may settle any segregable portion of such Third Party Claims to which such indemnification may not be available.

General Indemnification Provisions. Subject to Section 7.1, from and after (a) Notwithstanding any of the Effective Timeprovisions of this Agreement, Parent shall not be entitled to make claims for Damages under Sections 9.1(a) hereof unless and until the Surviving Corporation aggregate of such claims exceeds $700,000 (the "Indemnification Threshold") and their respective affiliates, officers, directors, shareholders, representatives and agents (collectively the “Indemnitees”) shall be indemnified and held harmless by each Company Shareholder and each Company Option Holder (each, an “Indemnifying Party”), each of whom shall be severally liable then only to the extent of each Indemnifying Party’s pro rata interest in such excess; provided, however, that the “Indemnification Reserve” (as defined below), Threshold shall not be applicable to claims by Parent for Damages arising from and against and in respect a breach by a Seller of any provisions of Sections 3.10 and all Losses incurred by, resulting from, 4.9 and Article VIII hereof (the "Excluded Provisions") or from an indemnification obligation arising out of, relating to, imposed upon or incurred by Parent, the Surviving Corporation or under Section 9.1(b) hereof and any other Indemnitee by reason of (i) any inaccuracy in or claim arising from a breach of any Excluded Provisions or from an indemnification obligation arising under Section 9.1(b) hereof shall not be taken into account for purposes of Company’s representationsdetermining when the Indemnification Threshold has been met. Notwithstanding any of the provisions of this Agreement, warrantiesin no event shall the aggregate indemnification obligations of the Sellers pursuant to Section 9.1(a) (except for any indemnification obligations arising from any breach of the Excluded Provisions) exceed the value of the Escrowed Shares as determined pursuant to Section 9.4(f) below. Notwithstanding anything herein to the contrary, covenants or agreements contained all indemnification obligations of the Sellers pursuant to Section 9.1(a) (except for any indemnification obligations arising from any breach of the Excluded Provisions) shall be satisfied exclusively from the Escrowed Shares held under the Escrow Agreement and Parent shall have no other recourse against the Sellers with respect to such claims. (b) Parent shall be entitled to make claims for Damages under Section 9.1(a) with respect to a breach of any Excluded Provision and under Section 9.1(b) without such Damages having to exceed any threshold. The aggregate indemnification obligations of the Sellers with respect to the claims referred to in this Agreement or the immediately preceding sentence shall not be subject to any schedulelimitation. However, certificate or other document delivered pursuant hereto or thereto or Parent shall not have any right, in connection with any such claims, to retain (or cause to be retained) under the transactions contemplated hereby or thereby Escrow Agreement any Merger Securities beyond the end of the Basic Survival Period unless Parent has properly made such a claim during the Basic Survival Period, it being further agreed that to the extent any such claims are made by Parent after the indemnifiable Losses end of the Basic Survival Period, Parent shall have only a general unsecured claim against the Sellers with respect thereto exceedthereto. (c) The parties further agree that the possession of any Merger Securities by the Custodian pursuant to Section 5.11(b) is solely for the purpose of implementing the trading restrictions provided for therein and that any Merger Securities so held do not constitute additional collateral securing the performance of the Sellers' indemnification obligations under Section 9.1. (d) In the event that any time subsequent to an indemnification payment hereunder the Damages to the indemnified party are reduced by tax benefits or recovery, in the aggregate57 settlement or otherwise under any insurance coverage or third party claim, the Loss Deductible and then only for the amount of indemnifiable Losses such reduction (less any cost, expense, premium or tax paid) will be promptly repaid to the indemnifying party. (e) For purposes of this Article IX, "Damages" means costs, losses, liabilities, damages, lawsuits, deficiencies, claims, Taxes and expenses (whether or not arising out of third-party claims or governmental examinations, inspections or audits), including, without limitation, interest, penalties, reasonable attorneys' fees and all amounts paid in excess investigation, defense or settlement of any of the Loss Deductibleforegoing; provided, which indemnifiable Losses however, that "Damages" shall be calculated without giving effect to any materiality or similar limitations or qualifications herein or therein, (ii) any claim by a holder of shares of Company Preferred Stock that are converted to Company Common Stock immediately prior to the Effective Time or that are outstanding immediately prior to the Effective Time that such a holder is entitled to any consideration by virtue of such holding other than as provided in Article II hereof, (iii) all Taxes of Company for any Taxable periods or portions thereof ending on or before the Effective Time, not include punitive damages except to the extent such Taxes are included in Closing Indebtednessof any punitive damages recovered by third parties. The term "Damages" is not limited to matters asserted by third parties against either the Sellers or against Parent or the Company, (iv) any Negative Adjustment Shortfall, (v) any amounts payable but includes Damages incurred or sustained by the Sellers or by Parent or by the Company Shareholders to in the Accounting Firm pursuant to Section 2.5, and (vi) any and all reasonable costs and expenses, including reasonable legal fees and expenses, in connection with enforcing the indemnification rights absence of Parent pursuant to this Section 7.2. After the Effective Time, the Indemnitees’ sole and exclusive remedy for any Losses shall be the ability to seek indemnity with respect to indemnifiable Losses from the Indemnification Reserve pursuant to this Article VIIthird party claims.