Common use of Indemnification by Parent Clause in Contracts

Indemnification by Parent. (a) Subject to the other terms and conditions of this Agreement, Parent and MergerCo shall indemnify, defend and hold harmless, the Securityholders and their respective officers, directors and members of their boards (each a “Securityholder Indemnified Party”) to the extent of any losses asserted against, imposed upon or incurred or sustained by any of the Securityholder Indemnified Parties, as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: (i) the breach of any representation or warranty of Parent or MergerCo contained herein; or (ii) any breach of any covenant or agreement of Parent or MergerCo contained herein. (b) If any Securityholder Indemnified Party seeks indemnification under this Section 9.3 such party shall give written notice to Parent of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if known) the basis of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) the Parent has failed to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable for any settlement of any Proceeding that is effected without the written consent of Parent.

Indemnification by Parent. (a) Subject Following the applicable Closing, subject to the other terms and conditions of this AgreementARTICLE VIII, Parent and MergerCo shall indemnify, defend indemnify and hold harmless, harmless Buyer and its Affiliates (including the Securityholders Acquired Companies) and their respective successors, permitted assigns, equityholders, officers, directors directors, employees, Representatives, members, partners and members of their boards agents (each a collectively, the “Securityholder Buyer Indemnified PartyParties”) to the extent of any losses asserted from and against, imposed upon or without duplication, any Losses incurred or sustained suffered by any of the Securityholder Buyer Indemnified Parties, as the same are incurred, Party arising out of, relating to, to or resulting from, or in whole or in part sustained in connection with: (i) the breach of any representation or warranty of Parent or MergerCo contained herein; or (ii) from any breach of any covenant of the representations or agreement warranties contained in ARTICLE III or ARTICLE IV as of the date such representation or warranty was made and as if such representation or warranty was made at and as of the Closing (except for any such representations or warranties that speak as of a specific date, the breach of which shall be determined as of such specified date), in each case, with respect to the Acquired Companies purchased by Buyer pursuant hereto, any breach of any of the covenants or agreements of Parent and Landcar Management (solely with respect Landcar Management, a breach of a Landcar Management Provision during the First Interim Period) of the covenants or MergerCo contained hereinagreements in this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation by Parent in Section 6.16, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to Section 6.16), any Closing Indebtedness and Closings Unpaid Transaction Expenses solely to the extent not reflected in the calculation of the Final Purchase Price or the components thereof, and any plan subject to Title IV of ERISA which an Acquired Company or a present or former member of its Controlled Group participated in, sponsored, or contributed to prior to the applicable Closing. (b) If any Securityholder Indemnified Party seeks indemnification under this Section 9.3 such party shall give written notice to Parent of the facts and circumstances giving rise Subject to the claim. In that regard, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to terms of this Section 9.3ARTICLE VIII, the Securityholder obligation of Parent to indemnify the Buyer Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if knownParties for Losses with respect to Section 8.2(a) the basis of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice is subject to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified Party, unless limitations below. (i) Parent shall not be required to provide indemnification to any Buyer Indemnified Party pursuant to Section 8.2(a)(i) unless the employment thereof has been specifically authorized aggregate amount of Losses incurred or suffered by Parent Buyer Indemnified Parties from the matters contained in writingSection 8.2(a)(i) exceeds the Aggregate Deductible, and then Buyer Indemnified Parties shall be entitled to indemnification for only the amount in excess of the Aggregate Deductible. (ii) there exists a conflict In no event shall the aggregate amount of interest between Losses for which Parent is obligated to indemnify Buyer Indemnified Parties pursuant to Section 8.2(a)(i) exceed the interests of the Securityholder Indemnified Party and Parent, or Aggregate Cap. (iii) the Parent has failed shall not be required to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition provide indemnification to any local counselBuyer Indemnified Party pursuant to Section 8.2(a)(i) for the Securityholder Indemnified Parties in connection with any one Proceeding single item or separate but similar or group of related Proceedings items that results in indemnifiable Losses that do not exceed $25,000 (“De Minimis Losses”); provided, however, De Minimis Losses shall apply towards Buyer satisfying the same jurisdiction arising out of the same general allegations or circumstances. Aggregate Deductible. (iv) Parent shall not be liable required to provide indemnification to any Buyer Indemnified Party pursuant to Section 8.2(a)(i) in connection with any single item or group of related items that results in Losses that do not exceed $5,000 (the “Minimum Threshold Losses”); provided, however, no Minimum Threshold Losses shall apply towards Buyer satisfying the Aggregate Deductible. (v) Notwithstanding anything contained in this Section 8.2(b), none of the Minimum Threshold Losses, De Minimis Losses, the Aggregate Deductible, or the Aggregate Cap shall apply to such claim for indemnification pursuant Sections 8.2(a)(i) (solely with respect to Fundamental Representations), 8.2(a)(ii), 8.2(a)(iii) or 8.2(a)(iv). (vi) The maximum aggregate Liability of Parent for all indemnifiable Losses under this ARTICLE VIII and Section 6.16(g) shall not exceed the Final Purchase Price. (vii) All indemnifiable Losses with respect to any settlement of any Proceeding that is effected without indemnification claim made pursuant to Section 8.2(a)(i) shall be satisfied as follows: (1) first, from the written consent of Indemnity Escrow Amount until such funds are depleted or released in accordance with the Escrow Agreement and (2) second, by direct recourse to Parent.

Indemnification by Parent. (a) Subject to the other terms and conditions limitations of this AgreementSection 9.3(b) hereof, Parent agrees to indemnify in full holders of Company Capital Stock, Qualified Options and MergerCo shall indemnify, defend and hold harmless, Qualified Warrants immediately prior to the Securityholders Effective Time and their respective officers, directors directors, employees, agents and members of their boards subsidiaries (each a collectively, the “Securityholder Holder Indemnified PartyParties”) to the extent of and hold them harmless from and against any losses asserted against, imposed upon or incurred or sustained by Losses which any of the Securityholder Holder Indemnified PartiesParties may suffer, as the same are incurredsustain or become subject to, arising out of, from or relating to, resulting from, or in whole or in part sustained in connection with: to (i) the any inaccuracy or misrepresentation in or breach of any representation or warranty of the representations and warranties of Parent contained in this Agreement or MergerCo contained herein; or other Related Documents or (ii) any breach of, or failure to perform, any covenant of Parent contained in this Agreement (collectively, the “Holder Losses”) provided, however, that Holder Losses shall not include any amount for “punitive”, “consequential” or “special damages” or damages for “lost profits” except to the extent that (x) a Claim alleges such forms of damages, (y) a Holder Indemnified Party is deemed responsible therefor pursuant to such Claim and (z) the responsible Holder Indemnified Party incurs Losses as a result thereof. The calculation of any covenant such Holder Loss will reflect (A) the amount of any Tax benefit actually recognized by the Holder Indemnified Parties for the United States federal and state income Tax purposes in the year in which such Holder Loss is suffered or agreement incurred and which is determined by the applicably Holder Indemnified Party’s Tax Return preparers to be without material risk of Parent being disallowed upon audit and (B) the amount of any insurance proceeds received by the Holder Indemnified Party in respect of such Holder Loss. For purposes of (A) above, a Tax benefit is “actually realized” if it can be utilized to reduce such Holder Indemnified Party’s Tax liability with respect to the Tax year in which the Holder Loss is suffered or MergerCo contained hereinincurred, and, for the avoidance of doubt, the mere incurring or increase in a capital or net operating loss or similar Tax asset, without a resulting reduction in Tax in that year, will not be deemed a Tax benefit for purposes of this provisions. (b) If Parent will be liable to the Holder Indemnified Parties for Holder Losses from an inaccuracy or misrepresentation in or breach of any Securityholder Indemnified Party seeks indemnification under of the representations and warranties of the Parent contained in this Section 9.3 such party shall give written notice Agreement or in the Related Documents (i) only if Stockholders’ Representative delivers to Parent a written notice, pursuant to Section 9.4 or 9.5 hereof, as applicable, with respect to such Holder Indemnified Party’s claim to be indemnified for such Holder Losses prior to 15 months after the Closing Date, and (ii) only if the aggregate amount of all such Holder Losses exceeds the facts and circumstances giving rise to the claim. In that regardBasket Amount, if any Proceeding in which case Parent shall be brought or asserted in writing by any third party whichobligated to indemnify the Holder Indemnified Parties for the aggregate amount of all Holder Losses, if adversely determinedprovided, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3however, the Securityholder that no Holder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if knownmake any claim for Losses pursuant to Section 9.3(a) the basis of such claim and the facts pertaining theretohereof which individually does not exceed $15,000, and Parent, if it so elects by written notice to such claims not meeting this threshold shall not be applied in calculating the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expensesBasket Amount specified above. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) the Parent has failed to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable Except for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties fraud in connection with any one Proceeding breach or separate but similar misrepresentation by Parent, Parent’s aggregate liability for Holder Losses resulting from inaccuracies or related Proceedings misrepresentations in the same jurisdiction arising out or breaches of any of the same general allegations or circumstances. representations and warranties of Parent contained in this Agreement shall not be liable for any settlement of any Proceeding that is effected without exceed the written consent of ParentCap.

Indemnification by Parent. (a) Subject to the other terms and conditions further provisions of this AgreementArticle 6, Parent and MergerCo hereby agrees that it shall indemnify, defend and hold harmlessharmless Purchaser, its Affiliates and, if applicable, their respective directors, officers, shareholders, partners, attorneys, accountants, agents and employees and their heirs, successors and assigns (the “Purchaser Indemnified Parties” and, collectively with the Seller Indemnified Parties, the Securityholders and their respective officers, directors and members of their boards (each a “Securityholder Indemnified PartyParties”) to the extent from, against and in respect of any losses asserted againstLosses imposed on, imposed upon or sustained, incurred or sustained suffered by or asserted against any of the Securityholder Purchaser Indemnified Parties, as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: Parties by reason of (i) the untruth, inaccuracy or breach (in any case, as of the date hereof) of any representation or warranty of made by Parent or MergerCo contained hereinin this Agreement; or (ii) any the breach of any covenant or agreement of Parent an Asset Selling Corporation contained in this Agreement (including the Schedules attached hereto), the License Agreement, the Transition Agreement (subject to the limitations set forth therein), or MergerCo contained hereinthe ▇▇▇▇ of Sale and Assumption; (iii) the Excluded Liabilities; (iv) the Excluded Assets; or (v) any Losses sustained, suffered or incurred by any Purchaser Indemnified Parties arising from or in connection with Taxes payable by an Asset Selling Corporation with respect to any period ending on or prior to the Closing Date (or the portion ending on the Closing Date for any Straddle Taxable Period). (b) If any Securityholder Indemnified Party seeks indemnification under Notwithstanding the provisions of this Section 9.3 such party shall give written notice to Parent of the facts and circumstances giving rise to the claim. In that regardArticle 6, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if known) the basis of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate except in the defense thereofcase of fraud, but the fees and expenses of such counsel employed by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) the Parent has failed to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable to the Purchaser Indemnified Parties for any settlement Losses with respect to the matters contained in Section 6.3(a)(i) involving representations and warranties except to the extent the Losses therefrom exceed Three Hundred Thousand Dollars ($300,000), in which event Parent shall be liable to the Purchaser Indemnified Parties for all such Losses in excess of such amount, subject to Section 6.3(c). In addition, so as to avoid duplicative recovery, Parent shall not be liable to the Purchaser Indemnified Parties for any Proceeding that is effected without Losses with respect to any amount being claimed if such item has been reflected as a Liability in Final Working Capital. (c) Except in the written consent case of Parentfraud, neither the Purchaser Indemnified Parties nor the Seller Indemnified Parties may recover Losses under this Agreement for untruth, inaccuracy or breach of representations and warranties which in the aggregate exceed the amount equal to (i) Two Million Five Hundred Thousand Dollars ($2,500,000) minus (ii) Losses incurred by Purchaser and its Affiliates relating to Known AMS Infringement and not indemnified by Purchaser as an Assumed Liability pursuant to Sections 2.1(c)(vii) and 6.2(iii).

Indemnification by Parent. (a) Subject to Effective as of the other terms and conditions of this AgreementClosing, Parent hereby indemnifies Buyer and MergerCo shall indemnify, defend TTSI and agrees to hold harmless, the Securityholders each harmless from any and their respective officers, directors and members of their boards (each a “Securityholder Indemnified Party”) to the extent of any losses asserted against, imposed upon or incurred or sustained by any of the Securityholder Indemnified Parties, as the same are incurred, all Damages arising out of, relating to, resulting from, of or in whole or in part sustained in connection with: (i) the breach of any representation or warranty of Parent or MergerCo contained herein; or (ii) pertaining to any breach of any covenant or agreement covenants of the Parent or MergerCo its Affiliates contained hereinin this Exhibit D. ADDITIONAL MATTERS RELATING TO PRODUCT LIABILITY ISSUES Parent and Buyer acknowledge and agree that each has a continuing interest in ensuring that claims involving alleged product defects and product safety are handled by TTSI after the Closing in a manner that minimizes liability of the parties and otherwise protects the parties' interests. This Exhibit E sets forth certain additional procedures, covenants and agreements relating to product liability and related matters in respect of products sold and services provided by TTSI or the TTS Business that, among other things, are intended to enhance the parties' ability to achieve these objectives. E.01 With respect to liabilities and obligations relating to claims of manufacturing or design defects, the parties have agreed that certain of these liabilities and obligations will constitute Assumed Liabilities for which TTSI will be responsible and certain of these liabilities and obligations will constitute Excluded Liabilities for which Seller Companies will be responsible. Because (bi) If any Securityholder Indemnified Party seeks indemnification under this Section 9.3 such party shall give written it is likely that TTSI may receive the initial notice or claim with respect to Parent of the facts liabilities and circumstances giving rise obligations that ultimately prove to be Seller Companies' responsibility and vice versa and (ii) in many cases it is critical to the claim. In that regard, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if known) the basis defense of such claim claims that products and the facts pertaining theretolocation in which the alleged incident occurs be inspected as soon as practicable, and each of Parent, if it so elects by written TTSI and Buyer agree to give immediate notice to the Securityholder Indemnified Partyother party in the event that they receive notice of a claim involving or potentially involving claims of manufacturing or design defects where the party first receiving such notice reasonably believes that the responsibility for the liability or obligation, shall assume if any, will be that of the other party or if there is any doubt as to which party ultimately will be responsible for any related liabilities or obligations. Each of Parent, TTSI and control Buyer also agree with respect to each claim of manufacturing or design defects that they will perform a prompt, diligent and continuing investigation to determine whether the defense thereof (claim is an Assumed Liability or an Excluded Liability, and shall consult agree to give immediate notice to the other parties at any time if the investigation reveals that the responsibility for the liability or obligation, if any, will be that of the other party if there is any doubt as to which party ultimately will be responsible for any related liabilities or obligations. Each of Parent, TTSI and Buyer agree that the party providing such notice will thereafter cooperate with the Securityholder Indemnified Party with respect thereto)other party to permit the other party to conduct its own investigation, including employment of counsel reasonably satisfactory and the party providing such notice will provide to the Securityholder Indemnified Party other party reports on the status of the claim and subject to the payment provisions of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and Article X an opportunity to participate in the defense thereofof the claim, but at its own cost and expense. To expedite the fees review of these issues and expenses ensure that both parties' rights and defenses are preserved, Parent, TTSI and Buyer shall provide such notice as follows: The Black & Deck▇▇ ▇▇▇poration 701 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Product Liability Counsel if to Buyer, or TTSI after Closing: True Temper Sports, Inc. 8275 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: President E.02 To the extent that either Parent, TTSI or Buyer (or any of their directors, officers, advisors, attorneys, accountants, employees, insurers or agents) conducts an investigation or other inquiry into any events or circumstances that lead to a claim of manufacturing or design defects in respect of a product or product line generally or a specific claim or allegation and the results of such counsel employed investigation or inquiry relate to or otherwise affect the liabilities or obligations of the other party hereunder, Parent, TTSI or Buyer, as the case may be, agree to share any information obtained as a result of the investigation or inquiry, in each case subject to the express provisions of Section 7.07 of this Agreement. E.03 To assist each of the parties to this Agreement with the defense of claims involving allegations of manufacturing or design defects and with compliance with each parties' respective legal obligations under this Agreement and otherwise, Parent, TTSI and Buyer each agree from time to time to designate individuals within their respective organizations as an "Engineering/Safety Assurance Liaison" and a "Claims Liaison" for the purpose of coordinating the defense of claims involving products sold and services provided by TTSI or the Securityholder Indemnified Party TTS Business. The initial individuals serving in these capacities shall be designated in writing by Parent, TTSI and Buyer at Closing and, thereafter, may be changed from time to time by notice to the expense other party. E.04 To assist each of the Securityholder Indemnified Partyparties to this Agreement with the defense of claims involving allegations of manufacturing or design defects and with compliance with each parties' respective legal obligations under this Agreement and otherwise, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) TTSI and Buyer each agree from time to time to provide the Parent has failed other party access to assume the defense all information as provided in Section 5.04 and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable for any settlement of any Proceeding that is effected without the written consent of ParentSection 6.

Indemnification by Parent. (a) Subject to the other terms and conditions of this Agreement, Parent and MergerCo shall indemnify, defend indemnify the Preferred Holder Parties against and hold harmlessthem harmless from all Losses which any the Preferred Holder Party may suffer, the Securityholders and their respective officers, directors and members of their boards (each a “Securityholder Indemnified Party”) to the extent of any losses asserted against, imposed upon sustain or incurred or sustained by any of the Securityholder Indemnified Partiesbecome subject to, as the same are incurred, arising out a result of, relating to, resulting from, or in whole or in part sustained in connection with: with or by virtue of (i) any misrepresentation or the breach of any representation or warranty of Parent contained in this Agreement or MergerCo any exhibit or schedule hereto or any certificate delivered at the Closing by or on behalf of Parent to the Preferred Holder in connection with the Merger and the transactions contemplated hereby (which breach shall be determined for purposes of this Article 5 without regard to any qualification by terms such as “material” or “material adverse effect” contained herein; or in such representation or warranty), and (ii) any breach of any covenant or agreement of Parent contained in this Agreement or MergerCo contained hereinany exhibit or schedule hereto or any certificate delivered at the Closing by or on behalf of it to the Preferred Holder in connection with the Merger and the transactions contemplated hereby. (b) If Parent shall not have any Securityholder Indemnified Party seeks indemnification Liability to the Preferred Holder Parties under Section 5.3(a)(i) unless the aggregate amount of all such Losses incurred by the Preferred Holder Parties for which Parent would, but for this Section 9.3 5.3(b), be liable exceeds, on a cumulative basis, the Basket, and then only to the extent of the amount of Losses in excess of the Basket; provided, however, that the Basket shall not apply to a breach of any Fundamental Representation. Parent shall not have any Liability to the Preferred Holder Parties under Section 5.3(a)(i) to the extent the aggregate amount of indemnifiable Losses under that Section exceeds the Cap. (c) Parent shall not have any Liability to the Preferred Holder Parties under Section 5.3(a) unless the Preferred Holder gives written notice demanding indemnification with respect thereto to Parent on or prior to the Applicable Limitation Date (if any), it being agreed that if such party demand for indemnification is timely made, the relevant representations and warranties, covenants and agreements shall survive with respect to the claims for indemnification set forth in such notice until such matter is resolved. (d) The Preferred Holder shall give Parent written notice of any claim, assertion, event or proceeding by or in respect of a third party as to Parent which any Preferred Holder Party may request indemnification hereunder or as to which the Basket may be applied as soon as is practicable and in any event within thirty (30) days of the facts and circumstances giving rise to time that the Preferred Holder actually learns of such claim. In that regard, if any Proceeding shall be brought assertion, event or asserted in writing by any third party whichproceeding, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying describing in reasonable detail the claim, the amount thereof (if known) and the basis thereof; provided, however, that the failure to so notify Parent shall not affect the rights of the Preferred Holder Parties to indemnification hereunder except to the extent that Parent is actually prejudiced by such failure. Parent shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such claim and the facts pertaining theretoor proceeding brought by a third party at Parent’s own expense, and Parent, if it so elects by long as Parent gives written notice to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party Preferred Holder Parties accepting full responsibility for indemnification with respect thereto), including employment to such claim or proceeding within fifteen (15) days of counsel reasonably satisfactory to the Securityholder Indemnified Party and receipt of notice from the payment of expensesPreferred Holder. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in defense of any such Proceeding and claim or proceeding, Parent shall consult with the Preferred Holder for the purpose of allowing the Preferred Holder to participate in the defense thereofsuch defense, but in such case the fees and expenses of such counsel employed the Preferred Holder shall be paid by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified PartyPreferred Holder, unless (i) the employment thereof has been specifically authorized by Parent in writing, writing or (ii) there Parent has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the interests of Preferred Holder, on the Securityholder Indemnified Party one hand, and Parent, or (iii) on the other hand. The Preferred Holder shall reasonably cooperate with Parent has failed to assume in the defense or settlement thereof, and employ counsel. Notwithstanding anything to Parent shall reimburse the contrary in Preferred Holder for all the foregoing, in no event shall Parent be liable for the fees and reasonable out-of-pocket expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties Preferred Holder in connection with therewith. The Preferred Holder shall not pay, or permit to be paid, any one Proceeding part of any claim or separate but similar or related Proceedings demand arising from such asserted liability unless Parent consents in the same jurisdiction arising out of the same general allegations or circumstanceswriting in advance to such payment. Parent shall not be liable for obtain the prior written consent of the Preferred Holder before entering into any settlement of any Proceeding third party claim if the settlement does not expressly release the applicable Preferred Holder Parties from all Liabilities and obligations with respect to such third party claim or the settlement imposes injunctive or other equitable relief against the Preferred Holder Parties. If Parent does not elect or fails to defend or if, after commencing or undertaking any such defense, Parent fails to prosecute or withdraws from such defense, the Preferred Holder shall have the right to undertake the defense or settlement thereof, at Parent’s expense. In such case, the Preferred Holder shall keep Parent reasonably apprised of the status of the claim, liability or expense and any resulting suit, proceeding or enforcement action, shall furnish Parent with all documents and information that is effected without Parent may reasonably request and the written consent of ParentPreferred Holder shall consult with Parent prior to acting on major matters, including settlement discussions. In addition, Parent shall at all times have the right to participate in such defense at its own expense directly or through counsel.

Indemnification by Parent. (a) Subject to the other terms and conditions of this Agreement, Parent and MergerCo shall indemnify, defend and hold harmless, the Securityholders and their respective officers, directors and members of their boards (each a “Securityholder Indemnified Party”) to the extent of any losses asserted against, imposed upon or incurred or sustained by any of the Securityholder Indemnified Parties, as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: (i) Parent shall defend, indemnify and hold the breach APAR Holders harmless from and against and in respect of any representation or warranty and all actual losses, liabilities, damages, judgments, settlements and expenses, including reasonable attorney fees, incurred directly by the APAR Holders (hereinafter “APAR Holders Losses”) arising out of Parent or MergerCo contained herein; or (ii) any breach of any covenant or agreement of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4, 4.6, 4.10 and 4.13 hereof. The APAR Holders shall give Parent or MergerCo contained herein. (b) If prompt written notice of any Securityholder Indemnified Party seeks indemnification third party claim which may give rise to any indemnity obligation under this Section 9.3 such party shall give written notice to Parent of 6.5(b), together with the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if known) the basis estimated amount of such claim and the facts pertaining theretoclaim, and Parent, if it so elects by written notice to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ assume the defense of any such claim through counsel separate from of its own choosing, by so notifying the APAR Holders within 60 days of receipt of Parent’s written notice; provided, however, that Parent’s counsel employed by Parent shall be reasonably satisfactory to the APAR Holders. Failure to give prompt notice shall not affect the indemnification obligations hereunder in the absence of actual prejudice. If any APAR Holder desires to participate in any such Proceeding defense assumed by Parent such APAR Holder may do so at their own individual sole cost and expense. If Parent declines to participate in the defense thereofassume any such defense, but the fees it shall be liable for all costs and expenses of defending such counsel employed claim incurred by the Securityholder Indemnified Party shall be at APAR Holders, including reasonable fees and disbursements of counsel. Neither party shall, without the expense prior written consent of the Securityholder Indemnified Partyother party, unless (i) which shall not be unreasonably withheld, settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the employment imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the other party or any Subsidiary or Affiliate thereof has been specifically authorized by Parent in writing, or if such settlement or compromise does not include an unconditional release of the other party for any liability arising out of such claim or demand. (ii) there exists a conflict of interest between The foregoing obligation to indemnify the interests APAR Holders set forth in this Section 6.5(b) shall be subject to each of the Securityholder Indemnified Party following limitations: (1) Parent’s indemnification obligation for any breach of the representations and warranties described in (A) Sections 4.1, 4.2, 4.3 and 4.4 of this Agreement shall survive from the Effective Time until the end of time, (B) in Sections 4.6 and 4.10 shall survive for only a period of nine (9) months from the Effective Time, (C) Section 4.20 of this Agreement shall survive for only a period of eighteen (18) months or statutory after the Effective Time and (D) Section 4.13 shall survive until the expiration of the relevant statute of limitations; after the expiration of the respective survival period, such representations and warranties of Parent and Merger Sub under this Agreement shall be extinguished. No claim for the recovery of such APAR Holders Losses may be asserted after such 9-month, 18-month or statutory period other than those that survive hereof until the end of time; provided, however, that claims first asserted in writing with specificity within such period shall not be thereafter barred. (2) No reimbursement for the APAR Holders Losses asserted against Parent under this Section 6.5(b) shall be required unless and until the cumulative aggregate amount of such APAR Holders Losses equals or exceeds $1.25 million (the “Parent Threshold”) and then only to the extent that the cumulative aggregate amount of the APAR Holders Losses, as finally determined, exceeds said Parent Threshold up to a maximum of $10 million; provided that in calculating the Parent Threshold, any Parent Losses which individually total less than $100,000 each (“De Minimis APAR Holders Losses”) shall be excluded in their entirety and Parent and its Affiliates in any event shall have no liability hereunder to the APAR Holders and its Affiliates for any such De Minimis APAR Holders Losses. (3) Parent’s liability to the APAR Holders under this Section 6.5(b) for APAR Holders Losses in excess of the Parent Threshold shall be limited to the issuance of additional shares of Parent Common Stock to the APAR Holders. Solely for purposes of determining the number of additional shares of Parent Common Stock to be issued to the APAR Holders pursuant to this Section 6.5(b), or each share of Parent Common Stock shall be deemed to have a value of $13.00. (iii) The indemnities provided in this Section 6.5(b) shall survive the Parent has failed to assume the defense and employ counsel. Notwithstanding anything Closing, subject to the contrary limitations on survival set forth in Section 6.5(b)(ii). The indemnity provided in this Section 6.5(b) shall be the foregoing, in sole and exclusive remedy of the indemnified party against the indemnifying party at law or equity for any matter covered by paragraphs (b)(i) and (ii). (iv) In no event shall Parent be liable to the APAR Holders for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding special, indirect, incidental, consequential or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable for any settlement of any Proceeding that is effected without the written consent of Parentpunitive damages.

Indemnification by Parent. (a) Subject to the other terms and conditions provisions of this AgreementArticle VIII, Parent and MergerCo shall indemnify, defend and hold harmless, harmless the Securityholders Eligible Company Holders and their respective officersRepresentatives, directors equity owners and members each Person, if any, who controls or may control such Eligible Company Holders within the meaning of their boards the Securities Act or the Exchange Act (each a collectively the “Securityholder Eligible Holder Indemnified PartyParties”), from and against any and all Damages arising out of or related to: (i) to the extent Any misrepresentation or breach of any losses asserted against, imposed upon or incurred default or sustained by inaccuracy in any of the Securityholder representations or warranties of Parent contained in Article IV; or (ii) Any breach or failure to comply with any of the covenants of Parent set forth in this Agreement; and/or (iii) any third party claim, or threatened third party claim, asserted against any Eligible Holder Indemnified Parties, as the same are incurred, Party arising out ofof Parent’s or Merger Sub’s actions or inactions prior to the Effective Time. (b) Any claim for indemnification made by any Eligible Holder Indemnified Party under this Section 8.3 must be made in writing delivered to Parent no later than the Final Escrow Release Date (an “Eligible Holder Claim Notice”). If delivered to Parent no later than the Final Escrow Release Date, relating toa claim for indemnification set forth in an Eligible Holder Claim Notice as provided herein shall survive the Final Escrow Release Date until final resolution thereof as provided in this Article VIII. (c) Notwithstanding the foregoing provisions of this Article VIII (or any other provision of this Agreement), resulting from, or in whole or in part sustained in connection withthe Parties agree that: (i) the breach of any representation indemnification provided for in Section 8.3(a)(i) shall not apply unless and until the aggregate Damages for which the Eligible Holder Indemnified Parties seek or warranty of Parent have sought indemnification hereunder, as stated in one or MergerCo contained herein; or (ii) any breach of any covenant or agreement of Parent or MergerCo contained herein. (b) If any Securityholder Indemnified Party seeks indemnification under this Section 9.3 such party shall give written notice to Parent of more Eligible Holder Claim Notices, exceed the facts and circumstances giving rise to the claim. In that regardBasket, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if known) the basis of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have which case the right to employ counsel separate from counsel employed by Parent in recover Damages shall apply to the full amount of the claim; provided, however, that the Basket shall not apply to any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) the Parent has failed to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable for any settlement of any Proceeding that is effected without the written consent of Parent.indemnification claim

Indemnification by Parent. (a) Subject to the other terms and conditions of this Agreement, Parent and MergerCo shall indemnify, defend and hold harmless, the Securityholders and their respective officers, directors and members of their boards (each a “Securityholder Indemnified Party”) to the extent of any losses asserted against, imposed upon or incurred or sustained by any Each of the Securityholder Stockholder Indemnified Parties, as the same are incurredParties shall be indemnified and held harmless by Parent for and against any and all Adverse Consequences, arising out of, relating to, of or resulting from, or in whole or in part sustained in connection with: (i) the breach of any representation or warranty of made by Parent or MergerCo Merger Sub contained hereinin the Acquisition Documents; provided that written notice of a claim with respect to such breach, which specifies in reasonable detail the basis of such claim, has been given by a Stockholder Indemnified Party to Parent prior to the expiration of the applicable representation and warranty period as set forth in Section 8.01(b); or (ii) any the breach of any covenant or agreement by Parent contained in the Acquisition Documents. To the extent that Parent’s undertakings set forth in this Section 8.03 may be unenforceable, Parent shall contribute the maximum amount that it is permitted to contribute under applicable Law to the payment and satisfaction of Parent or MergerCo contained hereinall Adverse Consequences incurred by the Stockholder Indemnified Parties, subject to the limitations set forth in Section 8.04. (b) If any Securityholder Indemnified Party seeks indemnification under this Section 9.3 such party shall give written notice to Parent The Stockholders’ Representative, on behalf of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if known) the basis of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice to the Securityholder a Stockholder Indemnified Party, shall assume give Parent prompt notice of any matter which such Stockholder Indemnified Party has determined has given rise to a right of indemnification under this Agreement stating the amount of the Adverse Consequences, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided, however, that the failure to provide such notice promptly shall not release Parent from any of its obligations under this Article VIII except to the extent that Parent is materially prejudiced by such failure to give prompt notice. The obligations and Liabilities of Parent under this Article VIII with respect to Adverse Consequences arising from Third Party Claims shall be governed by and be contingent upon the following additional terms and conditions. If a Stockholder Indemnified Party shall receive notice of any Third Party Claim, the Stockholders’ Representative, on behalf of such Stockholder Indemnified Party, shall give Parent prompt notice of such Third Party Claim following the receipt by the Stockholder Indemnified Party of such notice; provided, however, that the failure to provide such notice promptly shall not release Parent from any of its obligations under this Article VIII except to the extent that Parent is materially prejudiced by such failure to give prompt notice. Parent shall be entitled to assume, control and conduct the defense thereof (of such Third Party Claim at its expense and shall consult with the Securityholder Indemnified Party with respect thereto), including employment through counsel of counsel reasonably satisfactory its choice if it gives notice of its intention to do so to the Securityholder Stockholders’ Representative within fifteen (15) days of the receipt of such notice from the Stockholders’ Representative; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Stockholders’ Representative in its reasonable discretion, for the same counsel to represent both the Stockholder Indemnified Party and Parent then the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Stockholder Indemnified Party shall be entitled to retain its own counsel at the expense of Parent. For the Securityholder avoidance of doubt, under such circumstances, Parent shall be responsible only for the expenses of a single law firm representing all of the Stockholder Indemnified Parties involved. In the event that Parent exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Stockholder Indemnified Party shall cooperate with Parent in such defense and make available to Parent at Parent’s expense, all witnesses, pertinent records, materials and information in the Stockholder Indemnified Party’s possession or under the Stockholder Indemnified Party’s control relating thereto as is reasonably required by Parent. Similarly, in the event Parent does not exercise the right to undertake the defense against any Third Party Claim and the Stockholder Indemnified Party is conducting the defense against any such Third Party Claim, Parent shall cooperate with the Stockholder Indemnified Party in such defense and make available to the Stockholder Indemnified Party, unless (i) at Parent’s expense, all such witnesses, records, materials and information in Parent’s possession or under Parent’s control relating thereto as is reasonably required by the employment thereof has been specifically authorized Stockholder Indemnified Party. No such Third Party Claim the defense of which is conducted by Parent in writingmay be settled, (ii) there exists a conflict or the entry of interest between any order, ruling, judgment, decision, or similar determination or finding consented to, by Parent without the interests prior written consent of the Securityholder Indemnified Party and ParentStockholders’ Representative, or (iii) the Parent has failed to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Parent which shall not be liable for any settlement unreasonably withheld, conditioned or delayed. No such Third Party Claim the defense of any Proceeding that which is effected conducted by a Stockholders Indemnified Party may be settled by such Stockholder Indemnified Party without the prior written consent of ParentParent which shall not be unreasonably withheld, conditioned or delayed.

Indemnification by Parent. (a) Subject to the other terms and conditions of this AgreementArticle X, Parent and MergerCo shall indemnify, defend and hold harmlessharmless the Members from and against any and all Damages incurred by any Member by reason of or resulting from any breach by Parent or Sub of any of its representations, warranties, covenants or agreements contained in this Agreement or the Assumed Liabilities (collectively "Member Claims"). Notwithstanding the foregoing, the Securityholders indemnification obligations of Parent pursuant to this Section 10.3 shall be subject to the following limitations: (i) No indemnification shall be required to be made by Parent pursuant to this Article X with respect to any Member Claims to the extent that the aggregate amount of Damages incurred by the Members exceeds $255,000. (ii) No indemnification shall be required to be made by Parent pursuant to this Article X with respect to any Member Claims unless and their respective officersuntil the aggregate amount of Damages incurred by the Controlling Members with respect to all Member Claims exceeds $50,000, directors it being agreed and members understood that, if such amount is exceeded, Parent shall not be liable to the full extent of their boards such Damages but shall be liable only to the extent that the aggregate amount of Damages incurred by the Members exceeds $50,000. (each iii) The amount of Damages required to be paid by Parent to the Members pursuant to this Article X as a “Securityholder Indemnified Party”) result of any Member Claim shall be reduced to the extent of any losses asserted against, imposed upon or incurred or sustained by any amounts to which the Members are entitled to receive pursuant to the terms of the Securityholder Indemnified Parties, insurance policies (if any) covering such Member Claim. (iv) The amount of Damages required to be paid by Parent to the Members pursuant to this Article X as a result of any Member Claim shall be reduced by the same are incurred, amount of any Tax benefit realized or to be realized by the Members Indemnitees as a result of such Member Claim (the "Member Claim Reduction Amount"). The Member Claim Reduction Amount shall be calculated on a present value basis using the appropriate applicable federal tax rate for the month that the Member Claim was suffered as specified under Section 1274(d) of the Code. (v) No indemnification shall be required to be made by Parent pursuant to this Article X with respect to any Member Claims arising out of, relating to, of or resulting from, or in whole or in part sustained in connection with: (i) from the breach of any representation or warranty the representations and warranties of Parent or MergerCo Sub contained herein; or (ii) any breach in Article III if Parent can establish that a Member had actual knowledge on or before the Closing Date of any covenant the event, occurrence, condition or agreement of Parent or MergerCo contained hereincircumstance constituting such breach. (bvi) If any Securityholder Indemnified Party seeks The indemnification under this Section 9.3 such party shall give written notice to obligations of Parent of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3Article X shall be limited to actual damages and shall not include incidental, consequential, indirect, punitive or exemplary damages. (vii) All indemnification obligations of Parent shall be made in shares of Parent Common Stock having a fair market value based upon the Securityholder Indemnified Party shall promptly notify Parent of 60-Day Average Adjusted Price equal to the same in writing, specifying in reasonable detail (if known) the basis amount of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) the Parent has failed to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable for any settlement of any Proceeding that is effected without the written consent of Parentobligation.

Indemnification by Parent. (a) Subject After the Closing and subject to the other terms and conditions of this AgreementARTICLE X, Parent and MergerCo shall indemnify, defend and hold harmlessharmless Acquiror, the Securityholders its Affiliates and their respective officersRepresentatives (collectively, directors and members of their boards (each a the “Securityholder Acquiror Indemnified PartyParties”) to the extent of any losses asserted against, imposed upon and reimburse any Acquiror Indemnified Party for, all Losses that such Acquiror Indemnified Party may at any time suffer or incurred or sustained by any of the Securityholder Indemnified Parties, as the same are incurred, arising out of, relating to, resulting fromincur, or in whole or in part sustained in connection withbecome subject to: (i) as a result of or in connection with the inaccuracy or breach of any representation or warranty made by Parent in this Agreement; 50 (ii) as a result of or in connection with any breach or failure by Parent to perform any of its covenants or MergerCo obligations contained hereinin this Agreement; or (iiiii) any breach to the extent relating to or arising out of any covenant or agreement of Parent or MergerCo contained hereinExcluded Liabilities. (b) If Notwithstanding anything to the contrary contained herein, Parent shall not be required to indemnify, defend or hold harmless any Securityholder Acquiror Indemnified Party seeks indemnification under this against, or reimburse any Acquiror Indemnified Party for, any Losses pursuant to Section 9.3 such party shall give written notice to Parent 10.02(a)(i) (other than Losses arising out of the facts and circumstances giving rise inaccuracy or breach of any Parent Specified Representations, which shall not be subject to or count against the claim. In that regardDe Minimis Threshold, if any Proceeding shall be brought Deductible or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if knownCap) the basis of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified Party, unless (i) with respect to any claim (or series of related claims arising from the employment thereof same underlying facts, events or circumstances) unless such claim (or series of related claims arising from the same underlying facts, events or circumstances) involves Losses in excess of $250,000 (the “De Minimis Threshold”) (nor shall any such claim or series of related claims that does not exceed the De Minimis Threshold be applied to or considered for purposes of calculating the aggregate amount of Acquiror Indemnified Parties’ Losses for which Parent has been specifically authorized by Parent in writing, responsibility under clause (ii) there exists a conflict of interest between this Section 10.02(b) below); (ii) until the interests aggregate amount of Acquiror Indemnified Parties’ Losses for which Acquiror Indemnified Parties are finally determined to be otherwise entitled to indemnification under Section 10.02(a)(i) exceeds two percent (2%) of the Securityholder Purchase Price (the “Deductible”), after which Parent shall be obligated for all Acquiror Indemnified Party Parties’ Losses for which Acquiror Indemnified Parties are finally determined to be otherwise entitled to indemnification under Section 10.02(a)(i) that are in excess of two percent (2%) of the Purchase Price, but only if such excess Losses arise with respect to any claim (or series of related claims arising from the same underlying facts, events or circumstances) that involves Losses in excess of the De Minimis Threshold; and Parent, or (iii) in a cumulative aggregate amount, together with the Parent has failed to assume Excess Title Exception Amount (if any), exceeding five percent (5%) of the defense and employ counselPurchase Price (the “Cap”). Notwithstanding anything to the contrary in the foregoingcontained herein, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable required to indemnify, defend or hold harmless any Acquiror Indemnified Party against, or reimburse any Acquiror Indemnified Party for, any Losses pursuant to Section 10.02(a)(i) (including, for any settlement this purpose, in respect of the inaccuracy or breach of any Proceeding Parent Specified Representations) in a cumulative aggregate amount exceeding the Purchase Price. Notwithstanding anything to the contrary contained herein, Parent shall not be required to indemnify, defend or hold harmless any Acquiror Indemnified Party against, or reimburse any Acquiror Indemnified Party for, (i) any Losses relating to a title exception, it being understood that is effected without the written consent adjustments referred to in Section 3.04(c) shall be the sole and exclusive remedy of ParentAcquiror with respect to such matters or (ii) any Losses pursuant to Section 10.02(a)(i) in respect of the inaccuracy or breach of the representation and warranty contained in Section 4.07(e) to the extent such Losses arise in a taxable period or portion thereof beginning on or after the Closing Date.

Indemnification by Parent. After the Effective Time, and for a period of six (a6) Subject years after the Effective Time, Parent shall indemnify and hold harmless each person serving as a director of the Company and each person serving as an officer of the Company with respect to actions taken or omitted to be taken prior to the other terms Effective Time, to the extent such person is entitled to indemnification under the Certificate of Incorporation and conditions Bylaws of the Company as in effect immediately prior to the Effective Time, except as limited by Delaware law. Each party entitled to indemnification under this Agreement, Parent and MergerCo shall indemnify, defend and hold harmless, Section 6.3 (the Securityholders and their respective officers, directors and members of their boards (each a “Securityholder Director Indemnified Party”) to the extent of any losses asserted against, imposed upon or incurred or sustained by any of the Securityholder Indemnified Parties, as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: (i) the breach of any representation or warranty of Parent or MergerCo contained herein; or (ii) any breach of any covenant or agreement of Parent or MergerCo contained herein. (b) If any Securityholder Indemnified Party seeks indemnification under this Section 9.3 such party shall give written notice to Parent of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder promptly after such Director Indemnified Party has actual knowledge of any claim as to indemnity pursuant to this Section 9.3which indemnification may be sought, and Parent shall, upon written notice given reasonably promptly following receipt of notice from the Securityholder Director Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if known) the basis of such claim and the facts pertaining theretoclaim, and Parent, if it so elects by written notice be entitled to the Securityholder Indemnified Party, shall assume and control the defense thereof (at its expense with counsel chosen by Parent and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Director Indemnified Party; provided that the Director Indemnified Party may participate in such defense at such party’s expense; and provided further that if counsel reasonably determines that its representation of both Parent and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Director Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of would present such counsel employed by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists with a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) the if Parent has failed fails to assume the defense of such claim, the Director Indemnified Party may employ separate counsel to represent and employ counsel. Notwithstanding anything to defend it in any such action and Parent shall pay the contrary in the foregoing, in no event shall Parent be liable for the reasonable fees and expenses disbursements of more than one counsel (in addition to any local such counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable for required to pay the reasonable fees and disbursements of more than one separate law firm in any jurisdiction in any single action or proceeding. The failure of any Director Indemnified Party to give notice as provided herein shall not relieve Parent of its obligations under this Section 6.3, provided that if such failure materially increases the amount of indemnification that Parent is obligated to pay under this Section 6.3, the amount of indemnification which the Director Indemnified Party shall be entitled to receive shall be reduced to an amount which the Director Indemnified Person would have been entitled to receive had such notice been timely given. Parent, in the defense of any such claim or litigation, shall not, except with the consent of each Director Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof, the giving by the claimant or plaintiff to such Director Indemnified Party of any Proceeding that is effected without the written consent of Parenta release from all liability in respect to such claim or litigation.

Indemnification by Parent. (a) Subject to the other terms limitations set forth in this Article X, from and conditions of this Agreementafter the Effective Time, Parent shall hold harmless and MergerCo shall indemnify, defend indemnify each of the Stockholder Indemnitees from and hold harmless, the Securityholders and their respective officers, directors and members of their boards (each a “Securityholder Indemnified Party”) to the extent of any losses asserted against, imposed upon and shall compensate and reimburse each of the Stockholder Indemnitees for, any Damages which are suffered or incurred or sustained by any of the Securityholder Indemnified Parties, Stockholder Indemnitees or to which any of the Stockholder Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and which arise from or as the same are incurred, arising out a result of, relating toor are connected with: (a) any misrepresentation in, resulting from, inaccuracy in or in whole or in part sustained in connection with: (i) the breach of any representation or warranty of Parent set forth in this Agreement or MergerCo contained hereinany agreement, certificate or instrument furnished or to be furnished to the Company or the Stockholders' Agent pursuant hereto or in connection with the transactions contemplated hereby; or (iib) any breach of any covenant or agreement obligation of Parent or MergerCo contained herein. Merger Sub (including the covenants set forth in Article V); or (c) any Legal Proceeding relating to any inaccuracy or breach of the type referred to in clause (a) or (b) If above (including any Securityholder Indemnified Party seeks indemnification Legal Proceeding commenced by any Stockholder Indemnitee for the purpose of enforcing any of its rights under this Section 9.3 such party shall give written notice Article X). Any amount of Damages required to Parent of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity indemnified pursuant to this Section 9.310.3 shall be deemed, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if known) the basis of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice to the Securityholder Indemnified Partyextent permitted by law, an adjustment in the Merger Consideration. Any claims for indemnification pursuant to this Section 10.3 shall assume and control be made by the defense thereof Stockholders' Agent on behalf of any Stockholder Indemnitee. The Stockholder Indemnitees may not make any claim for indemnification pursuant to Section 10.3(a) (and shall consult with the Securityholder Indemnified Party except for claims with respect thereto)to Sections 4.1, including employment of counsel reasonably satisfactory to 4.2(a) and 4.4) until the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed aggregate Damages incurred by the Securityholder Indemnified Party Stockholder Indemnitees for which indemnification may be sought exceeds $750,000, at which point the Stockholder Indemnitees shall only be at the expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) the Parent has failed entitled to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable seek indemnification for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable for any settlement of any Proceeding that is effected without the written consent of Parentamount by which such Damages exceed $750,000.

Indemnification by Parent. (a) Subject Parent agrees to indemnify and hold harmless the Stockholder Representative, the Equityholders and each of their respective Affiliates, directors, officers, employees, members, managers and agents and each Person who controls the Stockholder Representative or any of the Equityholders within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable Legal Requirements, from and against any Losses to which they or any of them may become subject insofar as such Losses (or actions in respect thereof) arise out of or are based upon (x) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as originally filed or in any amendment thereof or any preliminary, final or summary Prospectus or Free Writing Prospectus included in the Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (y) any violation or alleged violation by Parent of the Securities Act, the Exchange Act, any other terms federal law, any state or foreign securities law, or any rule or regulation promulgated under of the foregoing laws, relating to the offer or sale of the Registrable Securities, and conditions of this Agreementin any such case, Parent and MergerCo shall indemnifyagrees to reimburse each such indemnified party, defend and hold harmlessas incurred, for any legal or other expenses reasonably incurred by them in connection with investigating, preparing or defending any such Loss, claim, damage, liability, action or investigation (whether or not the Securityholders and their respective officersindemnified party is a party to any proceeding); provided, directors and members of their boards (each a “Securityholder Indemnified Party”) however, that Parent will not be liable in any case to the extent that any such Loss arises out of or is based upon any losses asserted againstsuch untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information relating to the Stockholder Representative or any Equityholder furnished to Parent by or on behalf of the Stockholder Representative or such Equityholder specifically for inclusion therein, imposed upon or incurred or sustained it being understood and agreed that the only information so furnished by any of Equityholder will be that information that was provided by such Equityholder in the Securityholder Indemnified Parties, as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: (i) the breach of any representation or warranty of Parent or MergerCo contained herein; or (ii) any breach of any covenant or agreement of Parent or MergerCo contained herein. (b) If any Securityholder Indemnified Party seeks indemnification under this Section 9.3 such party shall give written notice questionnaire provided to Parent of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted in writing by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3(such information, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail (if known) the basis of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto“Equityholder Information”), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Indemnified Party shall This indemnity agreement will be at the expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) the Parent has failed to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances. liability which Parent shall not be liable for any settlement of any Proceeding that is effected without the written consent of Parentmay otherwise have.

Indemnification by Parent. From and after the Closing, Parent shall indemnify and hold the Former Securityholders, their Affiliates and their agents, successors and assigns (collectively “Securityholder Claimants” and individually “Securityholder Claimant”) harmless against any Damages, whether or not involving a third-party claim, that the Securityholder Claimants incurred by reason of or attributable to: (a) Subject to the other terms and conditions of this Agreement, Parent and MergerCo shall indemnify, defend and hold harmless, the Securityholders and their respective officers, directors and members of their boards (each a “Securityholder Indemnified Party”) to the extent of any losses asserted against, imposed upon inaccuracy or incurred or sustained by any of the Securityholder Indemnified Parties, as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: (i) the breach of any representation or warranty of Parent Parent, Merger Sub or MergerCo CEA Merger Sub contained herein; or in (i) Article III of this Agreement or (ii) any breach of any covenant or agreement of the Parent or MergerCo contained herein.Closing Certificate; (b) If any Securityholder Indemnified Party seeks indemnification under failure by Parent, Merger Sub, CEA Merger Sub, the Surviving Corporation, or the CEA Surviving Corporation to perform or comply with any covenant or obligation of Parent, Merger Sub or the Surviving Corporation contained in this Section 9.3 such party shall give written notice to Parent Agreement; provided, however, that in the case of the facts Surviving Corporation and circumstances giving rise the CEA Surviving Corporation, this clause (b) shall only be applicable to covenants or obligations to be performed by the claim. In that regard, if Surviving Corporation and the CEA Surviving Corporation at or after the Effective Time; and (c) any Proceeding shall be brought brokerage or asserted in writing finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any third party which, if adversely determined, would entitle the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Person with Parent of the same in writing, specifying in reasonable detail (if knownor any Person acting on its behalf) the basis of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) the Parent has failed to assume the defense and employ counsel. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding the transactions contemplated hereby. (A) Other than in connection with indemnifying the Securityholder Claimants from third party claims (“Third Party Claims”) which seek punitive, consequential, exemplary incidental or separate but similar or related Proceedings in other special-type Damages, the same jurisdiction arising out of the same general allegations or circumstances. Parent shall not be liable for any settlement punitive, consequential or exemplary Damages. Parent shall not be required to indemnify a Securityholder Claimant under clause (a) of this Section 7.3 unless the aggregate cumulative sum of all amounts for which indemnity would otherwise be due under clause (a) of this Section 7.3 exceeds $3,000,000, in which case Parent shall only be responsible for such excess. In addition, Parent’s aggregate maximum liability for indemnification under clause (a) of this Section 7.3 shall not exceed $15,000,000. The limitations set forth in the immediately two preceding sentences shall not apply to claims arising from any Proceeding that is effected without inaccuracy or breach of the written consent of Parentrepresentations or warranties contained in Sections 3.2 or claims based on fraud.

Indemnification by Parent. (a) Subject to the other terms limitations set forth in this Article VIII, for a period beginning at the Effective Time, and conditions ending at 11:59 p.m. Pacific Time on the first anniversary of this Agreementthe Closing Date, Parent and MergerCo shall indemnify, defend indemnify and hold harmlessharmless the Shareholders, the Securityholders and together with their respective officers, directors directors, agents and members employees, and each person, if any, who controls or may control any Shareholder within the meaning of their boards the Securities Act (each a hereinafter referred to individually as an “Securityholder Shareholder Indemnified PartyPerson” and collectively as “Shareholder Indemnified Persons”) to the extent from and against: Any and all losses, costs, damages, obligations, liabilities, fines, penalties, judgments, and expenses (including, without limitation, reasonable legal and other professional fees, costs and expenses incurred in investigating, preparing, defending against or prosecuting any claim, demand, suit, action, cause of action, arbitration, investigation or proceeding) arising out of any losses asserted againstmaterial misrepresentation or material breach of, imposed upon or incurred or sustained by default in connection with, any of the Securityholder Indemnified Partiesrepresentations, as warranties, covenants and agreements given or made by the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: (i) the breach of any representation or warranty of Parent or MergerCo contained herein; or Merger Sub in this Agreement or any Ancillary Agreement or any exhibit or schedule to this Agreement or any Ancillary Agreement (ii) any breach of any covenant or agreement of Parent or MergerCo contained hereincollectively, “Shareholder Damages”). (b) If any Securityholder Indemnified Party seeks All indemnification under this Section 9.3 such party obligations of Parent shall give written notice be satisfied in cash, by payment to Parent the Shareholders’ Agent for further distribution by the Shareholders’ Agent to the Shareholders, or at the election of the facts and circumstances giving rise Shareholders’ Agent to the claimEscrow Agent for further distribution by the Escrow Agent to the Shareholders. In that regardNotwithstanding any instruction of the Shareholders’ Agent to deliver such indemnification proceeds to the Escrow Agent, if any Proceeding such indemnification proceeds shall not become a part of the Escrow Fund, but shall be brought or asserted in writing by any third party which, if adversely determined, would entitle delivered solely for further distribution the Securityholder Indemnified Party to indemnity pursuant to this Section 9.3, the Securityholder Indemnified Party shall promptly notify Parent of the same in writing, specifying in reasonable detail Shareholders. (if knownc) the basis of such claim and the facts pertaining thereto, and Parent, if it so elects by written notice to the Securityholder Indemnified Party, shall assume and control the defense thereof (and shall consult with the Securityholder Indemnified Party with respect thereto), including employment of counsel reasonably satisfactory to the Securityholder Indemnified Party and the payment of expenses. If Parent elects to assume and control the defense, the Securityholder Indemnified Party shall have the right to employ counsel separate from counsel employed by Parent in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Securityholder Indemnified Party shall be at the expense of the Securityholder Indemnified Party, unless (i) the employment thereof has been specifically authorized by Parent in writing, (ii) there exists a conflict of interest between the interests of the Securityholder Indemnified Party and Parent, or (iii) the Parent has failed to assume the defense and employ counsel. Notwithstanding anything to the contrary in this Agreement or any other Ancillary Agreement, the foregoingShareholders’ Agent shall have the authority to exercise on behalf of the Shareholders all applicable remedies available at law or in equity. (d) The parties agree that there shall not be any multiple recovery for any Shareholder Damages. Except in the case of fraud, in no event shall the aggregate liability of Parent under this Section 8.11 exceed $3,000,000. This Section 8.11 represents the sole remedy for any claim by any Shareholder Indemnified Person relating to Shareholder Damages. No claim may be liable for presented relating to Shareholder Damages after the fees and expenses of more than one counsel (in addition to any local counsel) for the Securityholder Indemnified Parties in connection with any one Proceeding or separate but similar or related Proceedings in the same jurisdiction arising out first anniversary of the same general allegations or circumstancesClosing Date. Parent shall not be liable on any individual claim for any settlement of any Proceeding that is effected without Shareholder Damages, unless the written consent of Parentindividual claim exceeds $50,000.