Common use of Indemnification of Purchaser Clause in Contracts

Indemnification of Purchaser. From and after the Closing, the Escrow Participant hereby agrees to indemnify and hold harmless Purchaser against and in respect of any actual and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, “Losses”) incurred or sustained by Purchaser as a result of: (a) any breach or inaccuracy of any of the representations, warranties set forth in Article IV (as modified by the Company’s Disclosure Schedules) or in the Company Certificate, in each case as of the Closing Date, and (b) any breach or nonfulfillment of any covenants of the Company contained in this Agreement to be performed prior to the Closing Date; provided, however, any breach related to Section 4.38 (Projections) shall be limited to a claim based upon fraud, an untrue statement of material information, or omission of material information or the lack of good faith in the preparation of such Projections; and (c) any Losses resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participant under this Agreement, including this Article X, or otherwise in connection with the transactions contemplated by this Agreement shall in no event exceed an amount equal to: (i) the Escrow Share Value, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Further, the Purchaser shall not be entitled to indemnification pursuant to this Section 10.1 unless and until the aggregate amount of Losses to Purchaser equals at least $200,000 (the “Basket”), at which time, subject to the Indemnifiable Loss Limit, the Purchaser shall be entitled to indemnification for any Losses above the Basket per Loss. Except for Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant shall have no liability or obligation to indemnify any Purchaser or any other Indemnified Party under this Agreement with respect to the breach or inaccuracy of any representation, warranty, covenant or agreement based on any matter, fact or circumstance known to Purchaser or any of its representatives or disclosed in the information set out in any Schedule to this Agreement. For Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant agrees to indemnify and hold harmless the Purchaser against, from and in respect of any and all such Losses, whether or not a breach of a representation, warranty, covenant or agreement in this Agreement or any of the Additional Agreements to which it is a party.

Indemnification of Purchaser. From (a) Seller and after the ClosingClinsite shall, the Escrow Participant hereby agrees to jointly and severally, indemnify and hold harmless Purchaser and its successors and their respective shareholders, officers, directors, and agents from and against any and all damages, losses, liabilities, costs, and expenses, including reasonable and actually incurred attorneys' fees (and costs and reasonable and actually incurred attorneys' fees in respect of any actual and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and attorneys’ fees and other costs and expensessuit to enforce this provision) (all of the foregoing each a "Loss" and collectively, “"Losses”) incurred "), arising from or sustained by Purchaser as a result of: relating to (a) any misrepresentation, breach of warranty, or inaccuracy nonfulfillment of any of the representationscovenants or agreements of Seller or Clinsite in this Agreement (including any failure to collect Accounts Receivable within 90 days of the date such Accounts Receivable are due and payable), warranties set forth in Article IV (as modified by the Company’s Disclosure Schedules) or in any document, certificate, or affidavit delivered by Seller or Clinsite pursuant to the Company Certificate, in each case as provisions of the Closing Date, and this Agreement; (b) any breach liability, obligation, or nonfulfillment commitment of any covenants nature (absolute, accrued, contingent, or other) of Seller or Clinsite or relating to the Acquired Assets or the operation of the Company Business arising out of transactions entered into or events occurring prior to the Closing and not expressly assumed by Purchaser pursuant to this Agreement; (c) any Environmental Expenses, any Environmental Claims, any Environmental Conditions, or any material violation of Environmental Requirements relating to any time on or before the Closing Date; and (d) any and all actions, suits, investigations, proceedings, demands, assessments, audits, and judgments arising out of any of the foregoing. Purchaser acknowledges and agrees that (i) other than the representations and warranties of Clinsite and Seller specifically contained in this Agreement to be performed prior to the Closing Date; provided, however, any breach related to Section 4.38 (Projections) shall be limited to a claim based upon fraud, an untrue statement of material information, or omission of material information or the lack of good faith in the preparation of such Projections; and (c) any Losses resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participant under this Agreement, including this Article X, or otherwise in connection with the transactions contemplated by this Agreement shall in no event exceed an amount equal to: (i) the Escrow Share Value, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Further, the Purchaser shall not be entitled to indemnification pursuant to this Section 10.1 unless and until the aggregate amount of Losses to Purchaser equals at least $200,000 (the “Basket”), at which time, subject to the Indemnifiable Loss Limit, the Purchaser shall be entitled to indemnification for any Losses above the Basket per Loss. Except for Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant shall have no liability or obligation to indemnify any Purchaser or any other Indemnified Party under this Agreement instrument or document executed pursuant hereto, there are no representations or warranties of Clinsite or Seller either expressed or implied with respect to the breach transactions contemplated hereby, Clinsite, Seller, the Business or inaccuracy the Acquired Assets; (ii) Purchaser shall have no claim or right of indemnification pursuant to Section 12.02 with respect to any representationinformation, warranty, covenant documents or agreement based on any matter, fact materials furnished by Clinsite or circumstance known to Purchaser Seller or any of its representatives officers, directors, employees, agents, or disclosed advisors to Clinsite or Seller in expectation of the information set out in any Schedule to transactions contemplated hereby other than this Agreement. For Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant agrees Schedules hereto and any instruments and documents executed pursuant hereto and (iii) if the Closing occurs, Purchaser's sole and exclusive remedy with respect to indemnify and hold harmless the Purchaser against, from and in respect of any and all such Losses, whether or not a breach of a representation, warranty, covenant or agreement in Losses relating to this Agreement or any of document or instrument delivered by Clinsite or Seller pursuant hereto, the Additional Agreements transactions contemplated hereby, Clinsite, Seller, the Business and the Acquired Assets shall be pursuant to which it is a party.the indemnification provisions set forth in this Section

Indemnification of Purchaser. From and after the Closing, the Escrow Participant hereby Seller agrees (i) to indemnify Purchaser against, and hold Purchaser harmless Purchaser against and in respect of from. any actual and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency . damage or damage expense (including actual costs of investigation and reasonable attorneys’ fees and other costs and expenses' fees) (all of the foregoing collectively, “Losses”) incurred or sustained by Purchaser as a result of: (a) arising out of or resulting from any inaccuracy in or breach or inaccuracy of any of the representations, warranties set forth or covenants made by Seller in Article IV this Agreement, (as modified by ii) to pay, perform, fulfill and discharge all costs, expenses and liabilities incurred in connection with the Company’s Disclosure SchedulesTransferred Assets prior to the Closing Date with respect to the ownership or operation of the Transferred Assets prior to the Closing Date and (iii) to indemnify, defend and hold Purchaser harmless from and against any and all claims, losses, damages, costs, expenses, causes of action and judgments of any kind or character with respect to all liabilities, including the Retained Liabilities, arising out of or in connection with the Company Certificate, in each case as ownership or operation of the Closing Date, and (b) any breach or nonfulfillment of any covenants of the Company contained in this Agreement to be performed Transferred Assets prior to the Closing Date, including, without limitation, any interest, penalty and other costs and expenses incurred in connection therewith or the defense thereof (provided that any loss, damage or expense sustained by Purchaser arising out of or resulting from any breach or violation of Section 3.10 shall be governed by Section 10.4); provided, however, any breach related to Section 4.38 (Projections) shall be limited to a claim based upon fraud, an untrue statement of material information, or omission of material information or the lack of good faith in the preparation of such Projections; and (c) any Losses resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participant under this Agreement, including this Article X, or otherwise in connection with the transactions contemplated by this Agreement shall in no event exceed an amount equal to: (i) the Escrow Share Value, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Further, the that Purchaser shall not be entitled to assert rights of indemnification pursuant to under this Section 10.1 10.2 or Section 10.4 unless and until the aggregate amount of Losses to Purchaser equals at least all such losses exceeds $200,000 25,000 (it being understood that such losses shall accumulate until such time or times as the “Basket”)aggregate of all such losses exceeds $25,000, at which time, subject to the Indemnifiable Loss Limit, the whereupon Purchaser shall be entitled to indemnification under this Section 10.2 or Section 10.4 for any Losses above such losses); and provided, further, that the Basket per Loss. Except maximum aggregate of all losses for Losses resulting from the matters described on Schedule 10.1(c)which Purchaser shall be entitled to indemnification by any Seller, the Escrow Participant shall have no liability or obligation to indemnify any Purchaser or any other Indemnified Party whether under this Agreement with respect to the breach Section 10.2, Section 10.4 or inaccuracy of any representationotherwise, warranty, covenant or agreement based on any matter, fact or circumstance known to Purchaser or any of its representatives or disclosed in the information set out in any Schedule to this Agreement. For Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant agrees to indemnify and hold harmless the Purchaser against, from and in respect of any and all shall not exceed such Losses, whether or not a breach of a representation, warranty, covenant or agreement in this Agreement or any Seller's share of the Additional Agreements to which it is a partyPurchase Price.

Indemnification of Purchaser. From and after the Closing, the Escrow Participant hereby Seller agrees (i) to indemnify Purchaser against, and hold Purchaser harmless Purchaser against and in respect of from, any actual and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency damage or damage expense (including actual costs of investigation and reasonable attorneys’ fees and other costs and expenses' fees) (all of the foregoing collectively, “Losses”) incurred or sustained by Purchaser as a result of: (a) arising out of or resulting from any inaccuracy in or breach or inaccuracy of any of the representations, warranties set forth or covenants made by Seller in Article IV this Agreement, (as modified by ii) to pay, perform, fulfill and discharge all costs, expenses and liabilities incurred in connection with the Company’s Disclosure SchedulesTransferred Assets prior to the Closing Date with respect to the ownership or operation of the Transferred Assets prior to the Closing Date and (iii) to indemnify, defend and hold Purchaser harmless from and against any and all claims, losses, damages, costs, expenses, causes of action and judgments of any kind or character with respect to all liabilities, including the Retained Liabilities, arising out of or in connection with the Company Certificate, in each case as ownership or operation of the Closing Date, and (b) any breach or nonfulfillment of any covenants of the Company contained in this Agreement to be performed Transferred Assets prior to the Closing Date, including, without limitation, any interest, penalty and other costs and expenses incurred in connection therewith or the defense thereof (provided that any loss. damage or expense sustained by Purchaser arising out of or resulting from any breach or violation of Section 3.10 shall be governed by Section 10.4); provided, however, any breach related to Section 4.38 (Projections) shall be limited to a claim based upon fraud, an untrue statement of material information, or omission of material information or the lack of good faith in the preparation of such Projections; and (c) any Losses resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participant under this Agreement, including this Article X, or otherwise in connection with the transactions contemplated by this Agreement shall in no event exceed an amount equal to: (i) the Escrow Share Value, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Further, the that Purchaser shall not be entitled to assert rights of indemnification pursuant to under this Section 10.1 10.2 or Section 10.4 unless and until the aggregate amount of Losses to Purchaser equals at least all such losses exceeds $200,000 25,000 (it being understood that such losses shall accumulate until such time or times as the “Basket”)aggregate of all such losses exceeds $25,000, at which time, subject to the Indemnifiable Loss Limit, the whereupon Purchaser shall be entitled to indemnification under this Section 10.2 or Section 10 4 for any Losses above such losses); and provided, further, that the Basket per Loss. Except maximum aggregate of all losses for Losses resulting from the matters described on Schedule 10.1(c)which Purchaser shall be entitled to indemnification by any Seller, the Escrow Participant shall have no liability or obligation to indemnify any Purchaser or any other Indemnified Party whether under this Agreement with respect to the breach Section 10 2, Section 10.4 or inaccuracy of any representationotherwise, warranty, covenant or agreement based on any matter, fact or circumstance known to Purchaser or any of its representatives or disclosed in the information set out in any Schedule to this Agreement. For Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant agrees to indemnify and hold harmless the Purchaser against, from and in respect of any and all shall not exceed such Losses, whether or not a breach of a representation, warranty, covenant or agreement in this Agreement or any Seller's share of the Additional Agreements to which it is a partyPurchase Price.

Indemnification of Purchaser. From and after the ClosingClosing Date, subject to the limitations and requirements set forth in this Article VII, the Escrow Participant hereby agrees to Stockholders shall, severally (based on their Pro Rata Percentages) and not jointly, indemnify and hold harmless Purchaser, its Affiliates (including the Company and its Subsidiaries) and their respective successors and their respective shareholders and Representatives (collectively, the “Purchaser Indemnified Parties”) from and against and Losses incurred by any Purchaser Indemnified Party to the extent resulting or arising from or relating to (i) any inaccuracy in respect or any breach of any actual and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency representation or damage (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, “Losses”) incurred or sustained by Purchaser as a result of: (a) any breach or inaccuracy of any of the representations, warranties set forth in Article IV (as modified warranty made by the Company’s Disclosure SchedulesStockholders in this Agreement (other than a Fundamental Representation) or in the Company Certificate, in each case as certificate delivered by or on behalf of the Closing Date, and Stockholders pursuant to Section 6.1(e) of this Agreement (bother than with respect to a Fundamental Representation); (ii) any inaccuracy in or any breach of any Fundamental Representation made by the Stockholders in this Agreement or in the certificate delivered by or on behalf of the Stockholders pursuant to Section 6.1(e) of this Agreement with respect to a Fundamental Representation; (iii) any breach or nonfulfillment of any covenants of the Company contained in this Agreement covenant, agreement or obligation to be performed by the Stockholders pursuant to this Agreement, (iv) to the extent the Losses exceed the applicable case Reserves set forth on the Final Closing Date Balance Sheet, the Xxxxxxxx Matter or the Superstorm Xxxxx Matter, (v) any matter set forth on Section 3.10 of the Stockholders Disclosure Schedule, only with respect to facts, circumstances, events or actions prior to the Closing Date; provided, howeverincluding, any breach related to Section 4.38 (Projections) shall be limited to a claim based upon fraud, an untrue statement for the avoidance of material information, or omission of material information or the lack of good faith in the preparation of such Projections; and (c) any Losses resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrarydoubt, the maximum liability failure of the Escrow Participant under this AgreementInsurance Company to timely respond to, including this Article Xtake corrective measures, certify or otherwise comply with any request or demand by the Domiciliary Regulator or otherwise cooperate with the Domiciliary Regulator in connection with the transactions contemplated by this Agreement shall in no event exceed an amount equal to: its exercise of its authority, or (ivi) the Escrow Share Value, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Further, the Purchaser shall not be entitled to indemnification pursuant to this Section 10.1 unless and until the aggregate amount of Losses to Purchaser equals at least $200,000 (the “Basket”), at which time, subject to the Indemnifiable Loss Limit, the Purchaser shall be entitled to indemnification for any Losses above the Basket per Loss. Except for Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant shall have no liability or obligation to indemnify any Purchaser or any other Indemnified Party under this Agreement only with respect to facts, circumstances, events or actions prior to the breach or inaccuracy of any representation, warranty, covenant or agreement based on any matter, fact or circumstance known to Purchaser or any of its representatives or disclosed in the information set out in any Schedule to this Agreement. For Losses resulting from the matters described on Schedule 10.1(c)Closing Date, the Escrow Participant agrees matter set forth on Section 3.11 of the Stockholders Disclosure Schedule relating to indemnify and hold harmless Xxxxx Xxxxxxx. Notwithstanding the Purchaser againstforegoing, from and in the obligations of either Stockholder with respect of any and all such Losses, whether or not a breach of a representation, warranty, covenant or agreement in this Agreement or to any of the Additional Agreements to which it is Stockholder Specific Representations or any breach, violation or nonfulfillment of any covenant, agreement or obligation by a partyStockholder solely in her or its capacity as a Stockholder shall be solely the responsibility of such Stockholder.

Indemnification of Purchaser. From and after the Closing, the Escrow Participant hereby Seller agrees (i) to indemnify Purchaser against, and hold Purchaser harmless Purchaser against and in respect of from, any actual and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency . damage or damage expense (including actual costs of investigation and reasonable attorneys’ fees and other costs and expenses' fees) (all of the foregoing collectively, “Losses”) incurred or sustained by Purchaser as a result of: (a) arising out of or resulting from any inaccuracy in or breach or inaccuracy of any of the representations, warranties set forth or covenants made by Seller in Article IV this Agreement, (as modified by ii) to pay, perform, fulfill and discharge all costs, expenses and liabilities incurred in connection with the Company’s Disclosure SchedulesTransferred Assets prior to the Closing Date with respect to the ownership or operation of the Transferred Assets prior to the Closing Date and (iii) to indemnify, defend and hold Purchaser harmless from and against any and all claims, losses, damages, costs, expenses, causes of action and judgments of any kind or character with respect to all liabilities, including the Retained Liabilities, arising out of or in connection with the Company Certificate, in each case as ownership or operation of the Closing Date, and (b) any breach or nonfulfillment of any covenants of the Company contained in this Agreement to be performed Transferred Assets prior to the Closing Date, including, without limitation, any interest, penalty and other costs and expenses incurred in connection therewith or the defense thereof (provided that any loss, damage or expense sustained by Purchaser arising out of or resulting from any breach or violation of Section 3.10 shall be governed by Section 10.4); provided, however, any breach related to Section 4.38 (Projections) shall be limited to a claim based upon fraud, an untrue statement of material information, or omission of material information or the lack of good faith in the preparation of such Projections; and (c) any Losses resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participant under this Agreement, including this Article X, or otherwise in connection with the transactions contemplated by this Agreement shall in no event exceed an amount equal to: (i) the Escrow Share Value, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Further, the that Purchaser shall not be entitled to assert rights of indemnification pursuant to under this Section 10.1 10.2 or Section 10.4 unless and until the aggregate amount of Losses to Purchaser equals at least all such losses exceeds $200,000 25,000 (it being understood that such losses shall accumulate until such time or times as the “Basket”)aggregate of all such losses exceeds $25,000, at which time, subject to the Indemnifiable Loss Limit, the whereupon Purchaser shall be entitled to indemnification under this Section 10.2 or Section 10.4 for any Losses above such losses); and provided, further, that the Basket per Loss. Except maximum aggregate of all losses for Losses resulting from the matters described on Schedule 10.1(c)which Purchaser shall be entitled to indemnification by any Seller, the Escrow Participant shall have no liability or obligation to indemnify any Purchaser or any other Indemnified Party whether under this Agreement with respect to the breach Section 10.2, Section 10.4 or inaccuracy of any representationotherwise, warranty, covenant or agreement based on any matter, fact or circumstance known to Purchaser or any of its representatives or disclosed in the information set out in any Schedule to this Agreement. For Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant agrees to indemnify and hold harmless the Purchaser against, from and in respect of any and all shall not exceed such Losses, whether or not a breach of a representation, warranty, covenant or agreement in this Agreement or any Seller's share of the Additional Agreements to which it is a partyPurchase Price.

Indemnification of Purchaser. From and after the Closing, the Escrow Participant Participants hereby agrees agree to indemnify and hold harmless Purchaser against and in respect of any actual and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, “Losses”) incurred or sustained by Purchaser as a result of: (a) any breach or inaccuracy of any of the representations, warranties set forth in Article IV (as modified by the Company’s Disclosure Schedules) or in the Company Certificate, in each case as of the Closing Date, and (b) any breach or nonfulfillment of any covenants of the Company contained in this Agreement to be performed prior to the Closing Date; provided, however, any breach related to Section 4.38 4.37 (Projections) shall be limited to a claim based upon fraud, an untrue statement of material information, or omission of material information or the lack of good faith in the preparation of such Projections; Projections and (c) any Losses resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participant Participants under this Agreement, including this Article X, or otherwise in connection with the transactions contemplated by this Agreement shall in no event exceed an amount equal to: (i) the Escrow Share Value, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Further, the The Purchaser shall not be entitled to indemnification pursuant to this Section 10.1 unless and until the aggregate amount of Losses to Purchaser equals at least $200,000 (the “Basket”), at which time, subject to the Indemnifiable Loss Limit, the Purchaser shall be entitled to indemnification for any Losses above the Basket per Loss. Except for Losses resulting from the matters described on Schedule 10.1(c), the The Escrow Participant Participants shall have no liability or obligation to indemnify any Purchaser or any other Indemnified Party under this Agreement with respect to the breach or inaccuracy of any representation, warranty, covenant or agreement based on any matter, fact or circumstance known to Purchaser or any of its representatives or disclosed in the information set out in any Schedule to this Agreement. For Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant agrees to indemnify and hold harmless the Purchaser against, from and in respect of any and all such Losses, whether or not a breach of a representation, warranty, covenant or agreement in this Agreement or any of the Additional Agreements to which it is a party.

Indemnification of Purchaser. From Subject to the terms of this Section 13, from and after the ClosingClosing Date, the Escrow Participant hereby agrees to indemnify Seller shall indemnify, defend, save and hold harmless Purchaser against and in respect of any actual and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage its Affiliates (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, the “LossesPurchaser Indemnified Parties”) incurred from and against any and all Losses resulting from, arising out of or sustained by Purchaser as a result of: related to (ai) any breach or inaccuracy of any representation or warranty of the representations, warranties Seller set forth in Article IV this Agreement, (as modified ii) the failure by the Company’s Disclosure Schedules) Seller to perform timely any of its respective covenants or in the Company Certificate, in each case as of the Closing Date, and (b) any breach or nonfulfillment of any covenants of the Company agreements contained in this Agreement Agreement, (iii) the Excluded Liabilities, (iv) without duplication of any amounts paid pursuant to be performed prior to Section 5(d) hereof or the Closing Date; provided, howeverMaster Services Agreement, any breach related Taxes attributable to Section 4.38 any Pre-Closing Tax Period or (Projections) shall be limited to a claim based upon fraud, an untrue statement of material information, or omission of material information or the lack of good faith in the preparation of such Projections; and (cv) any Losses resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrary, the maximum liability noncompliance with applicable bulk sales or fraudulent transfer Requirements of the Escrow Participant under this Agreement, including this Article X, or otherwise Law in connection with the transactions contemplated by this Agreement shall in no event exceed an Agreement; provide that the aggregate amount equal to: payable for all claims made under clause (i) the Escrow Share Value, multiplied by (ii) the Escrow Shares shall not exceed in value in any event $6,000,000 (the “Indemnifiable Loss Limit”). Further, the Purchaser shall not be entitled to indemnification pursuant to this Section 10.1 unless and until the aggregate amount of Losses to Purchaser equals at least $200,000 (the “BasketCap”), and in cash or from the Common Stock Consideration at which timeSeller’s discretion, subject as provided in this Section 13(b); provided that, without limiting the Cap, Seller agrees to pay up to the Indemnifiable Loss Limit, the Purchaser shall be entitled to indemnification for any first $2,500,000 of Losses above the Basket per Loss. Except for Losses that constitute Purchaser’s out-of-pocket expenses resulting from the matters described on Schedule 10.1(csuch Losses or actual cash damages incurred by Purchaser (“Purchaser’s Cash Loss Obligation”); provided further that, the Escrow Participant for Common Stock Consideration, Seller shall have no liability or obligation to indemnify any Purchaser or any other Indemnified Party under this Agreement with respect to the breach or inaccuracy of any representation, warranty, covenant or agreement based on any matter, fact or circumstance known return to Purchaser or any that number of its representatives or disclosed in shares of the information set out in any Schedule to this Agreement. For Losses resulting from Common Stock Consideration equal the matters described on Schedule 10.1(c), amount of such damages divided by the Escrow Participant agrees to indemnify and hold harmless the Purchaser against, from and in respect of any and all such Losses, whether or not a breach volume weighted average closing price of a representation, warranty, covenant or agreement in this Agreement or any share of Purchaser’s common stock on the Additional Agreements to principal stock exchange on which it is a partytraded for the ten (10) days ending on the trading day before shares of common stock are returned to the Purchaser, rounded to the nearest whole share.

Indemnification of Purchaser. From and after the Closing, the Escrow Participant Participants hereby agrees agree to indemnify and hold harmless Purchaser against and in respect of any actual and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, “Losses”) incurred or sustained by Purchaser as a result of: (a) any breach or inaccuracy of any of the representations, warranties set forth in Article IV V (as modified by the Company’s Disclosure Schedules) or in the Company Certificate, in each case as of the Closing Date, and (b) any breach or nonfulfillment of any covenants of the Company contained in this Agreement to be performed prior to the Closing Date; provided, however, any breach related to Section 4.38 (Projections) shall be limited to a claim based upon fraud, an untrue statement of material information, or omission of material information or the lack of good faith in the preparation of such Projections; and (c) any Losses resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participant Participants under this Agreement, including this Article XXI, or otherwise in connection with the transactions contemplated by this Agreement shall in no event exceed an amount equal to: (i) the Escrow Share Value, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Further, the The Purchaser shall not be entitled to indemnification pursuant to this Section 10.1 11.1 unless and until the aggregate amount of Losses to Purchaser equals at least $200,000 1,246,875 (the “Basket”), at which time, subject to the Indemnifiable Loss Limit, the Purchaser shall be entitled to indemnification for any Losses above the Basket Basket, less $124,687.50 per Loss. Except for Losses resulting from the matters described on Schedule 10.1(c), the The Escrow Participant Participants shall have no liability or obligation to indemnify any Purchaser or any other Indemnified Party under this Agreement with respect to the breach or inaccuracy of any representation, warranty, covenant or agreement based on any matter, fact or circumstance known to Purchaser or any of its representatives or disclosed in the information set out in any Schedule to this Agreement. For Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant agrees to indemnify and hold harmless the Purchaser against, from and in respect of any and all such Losses, whether or not a breach of a representation, warranty, covenant or agreement in this Agreement or any of the Additional Agreements to which it is a party.

Indemnification of Purchaser. From Subject to the other provisions of this Article VI, from and after the Closing, Purchaser, the Escrow Participant hereby agrees to indemnify Company and hold harmless each of their respective Representatives, Subsidiaries, direct and indirect parent companies, shareholders, partners, members, managers, officers and directors (the “Purchaser against and in respect of any actual and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, “LossesIndemnitees”) shall be entitled to receive proceeds from the Indemnity Escrow Amount as indemnification against any Losses suffered, incurred or sustained paid, directly or indirectly, by Purchaser them as a result of, arising out of or related to: (a) any breach or inaccuracy of any of representation or warranty (without giving effect to any “material”, “materially”, “materiality”, “Material Adverse Effect”, “material adverse effect”, “material adverse change” or similar materiality qualification contained in any such representation or warranty other than those contained in Section 2.5, Section 2.6(a) and Section 2.15 (solely with respect to the representations, warranties set forth defined term “Material Contract”)) made by Seller in Article IV (as modified by the Company’s Disclosure Schedules) or in the Company CertificateII, in each case as of the Closing Date, and other than with respect to Excluded Taxes; (b) any breach or nonfulfillment of any covenants of the Company covenant or agreement by Seller contained in this Agreement to be performed prior to the Closing DateAgreement; provided, however, any breach related to Section 4.38 (Projections) shall be limited to a claim based upon fraud, an untrue statement of material information, or omission of material information or the lack of good faith in the preparation of such Projections; and (c) any Losses Member Litigation (including any Member Litigation related to, resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participant under this Agreement, including this Article X, or otherwise in connection with items 2 or 3 set forth on Schedule 2.9 of the transactions contemplated Seller Disclosure Letter); (d) any breach by this Seller or any of its members or its Subsidiaries (other than the Company (after the Closing) and Xxxxxxx Xxxxxxxx) of the Bankruptcy Settlement Agreement shall or the Bankruptcy Settlement Approval Order; (e) the Bankruptcy Proceedings, including any employee claims; (f) any Indebtedness of the Company as of the Closing Date in no event exceed an excess of the Closing Funded Indebtedness set forth on the Closing Statement; and (g) any Company Transaction Expenses not accounted for, or any inaccuracy in the amount equal to: of Company Transaction Expenses payable set forth, in the Closing Statement; and (h) (i) all Taxes, other than Excluded Taxes, imposed on, asserted against or attributable to the Escrow Share Valueproperties, multiplied by income or operations of the Company or any Taxes for which the Company is otherwise liable, for all Pre-Closing Periods, (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Furtherall Taxes, the Purchaser shall not be entitled to indemnification pursuant to this Section 10.1 unless and until the aggregate amount of Losses to Purchaser equals at least $200,000 (the “Basket”)other than Excluded Taxes, at which timeimposed on, subject asserted against or attributable to the Indemnifiable Loss Limitproperties, income or operations of the Purchaser shall be entitled to indemnification for any Losses above Company as a result of the Basket per Loss. Except for Losses resulting from provisions of Treasury Regulations Section 1.1502-6 or the matters described on Schedule 10.1(c), the Escrow Participant shall have no liability or obligation to indemnify any Purchaser or any other Indemnified Party under this Agreement with respect to the breach or inaccuracy analogous provisions of any representationstate, warrantylocal or foreign Law, covenant or agreement based and (iii) all Taxes, other than Excluded Taxes, imposed on any matterthe Company, fact or circumstance known to Purchaser or any of its representatives Purchaser’s Affiliates, or disclosed in for which the information set out in any Schedule to this Agreement. For Losses resulting from the matters described on Schedule 10.1(c)Company, the Escrow Participant agrees to indemnify and hold harmless the Purchaser against, from and in respect of any and all such Losses, whether or not a breach of a representation, warranty, covenant or agreement in this Agreement or any of the Additional Agreements to which it is Purchaser’s Affiliates may be liable, as a partyresult of any transaction contemplated by this Agreement.

Indemnification of Purchaser. From and after Subject to the Closingprovisions of this Section 4.3, the Escrow Participant hereby agrees to Company will indemnify and hold the Purchaser and its directors, officers, shareholders, partners, members, employees and agents (each, a “Purchaser Party”) harmless Purchaser against from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in respect of any actual settlements, court costs and direct out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and reasonable attorneys’ fees and other costs and expenses) of investigation that any such Purchaser Party may suffer or incur (all of the foregoing collectively, “LossesIndemnified Liabilities”) incurred or sustained by Purchaser as a result of: of or relating to (a) any breach or inaccuracy of any of the representations, warranties set forth in Article IV (as modified warranties, covenants or agreements made by the Company’s Disclosure Schedules) Company in this Agreement or in the Company Certificate, in each case as of the Closing Date, and other Transaction Documents or (b) any breach Action brought or nonfulfillment of any covenants made against such Purchaser Party by a third party as a derivative action brought on behalf of the Company contained in this Agreement to be performed prior to the Closing Date; provided, however, any breach related to Section 4.38 (Projections) shall be limited to a claim based upon fraud, an untrue statement and arising out of material information, or omission of material information or the lack of good faith in the preparation of such Projections; and (c) any Losses resulting from the matters described on Schedule 10.1(c). Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participant under this Agreement, including this Article X, or otherwise in connection with the transactions contemplated by this Agreement shall in no event exceed an amount equal to: (i) the Escrow Share Valueexecution, multiplied delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby or (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Shares. The Company shall not be liable to the Purchaser under this provision in respect of any Indemnified Liability if such liability arises out of any misrepresentation by the Purchaser in Section 3.2 or Section 4.6 of this Agreement, any gross negligence or wrongful conduct of Purchaser, or any violations of law, rule or regulation by the Purchaser. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly (but in any event within 10 Business Days) notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Escrow Shares Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the “Indemnifiable Loss Limit”)reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. FurtherThe Company shall in any event only be liable for the fees and expenses of one firm of attorneys for all Purchaser Parties under this Agreement and the indemnified parties under all other securities purchase agreements dated of even date herewith between the Company and other purchasers. The Company will not be liable to any Purchaser Party under this Section 4.3 for any settlement by a Purchaser Party effected without the Company’s prior written consent, the Purchaser which consent shall not be entitled to indemnification pursuant to this Section 10.1 unless and until the aggregate amount of Losses to Purchaser equals at least $200,000 (the “Basket”), at which time, subject to the Indemnifiable Loss Limit, the Purchaser shall be entitled to indemnification for any Losses above the Basket per Loss. Except for Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant shall have no liability unreasonably withheld or obligation to indemnify any Purchaser or any other Indemnified Party under this Agreement with respect to the breach or inaccuracy of any representation, warranty, covenant or agreement based on any matter, fact or circumstance known to Purchaser or any of its representatives or disclosed in the information set out in any Schedule to this Agreement. For Losses resulting from the matters described on Schedule 10.1(c), the Escrow Participant agrees to indemnify and hold harmless the Purchaser against, from and in respect of any and all such Losses, whether or not a breach of a representation, warranty, covenant or agreement in this Agreement or any of the Additional Agreements to which it is a partydelayed.