Common use of Third Party Claims Clause in Contracts

Third Party Claims. In the event that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution.

Third Party Claims. In the event that the Purchaser becomes aware of a third-claim by a third party claim which the Purchaser believes may that would result in Indemnifiable Damages under Section 9.2 if it were assumed that such claim was ultimately determined in favor of such third party (a claim against the Purchaser by or on behalf of an Indemnified Person“Third-Party Claim”), the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve such Third-Party Claim. The Equityholders’ Representative shall have the right to receive copies of all pleadings, notices and communications with respect to such Third-Party Claim to the extent that receipt of such documents does not adversely affect any privilege relating to any Indemnified Person (and in such event, Purchaser shall cooperate in good faith with the Equityholders’ Representative to provide such information to the Equityholders’ Representative in a manner that does not adversely affect such applicable privilege, including by entering into joint defense agreements or similar arrangements). However, Purchaser shall have the right in its sole discretion to determine and conduct the defense of any Third-Party Claim and the settlement, adjustment or compromise of such Third-Party Claim. Unless otherwise consented to in writing in advance by Purchaser in its sole discretion, the Equityholders’ Representative and its Affiliates may not participate in any Third-Party Claim or any action related to such Third-Party Claim (including any discussions or negotiations in connection with the settlement, adjustment or compromise thereof). In the event that the Equityholders’ Representative has consented to the amount of any settlement or 70 resolution by Purchaser of any such claim (which consent shall not be unreasonably withheld, conditioned or delayed and which consent shall be deemed to have been given unless the costs and expenses Equityholders’ Representative shall have objected within 30 days after a written request therefor by Purchaser), or if the Equityholders’ Representative shall have been judicially determined to have unreasonably withheld, conditioned or delayed its consent to the amount of any such settlement or resolution, neither the Equityholders’ Representative nor any Selling Securityholder shall have any power or authority to object under this Article IX to the amount of any claim by or on behalf of any Indemnified Person against the Holdback Fund for indemnity with respect to such settlement or resolution. Notwithstanding anything to the contrary contained herein, the Equityholders’ Representative shall not be entitled to object to a claim for Indemnifiable Damages incurred by the Purchaser an Indemnified Person in connection with such the defense, enforcement, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in of a Third-Party Claim on the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to basis that there has been no ultimate determination (including a claim made hereunder). The Seller shall have the right to receive copies judgment of all pleadings, notices and communications a court or a finding of an arbitral body) with respect to such Third-Party Claim. Notwithstanding the third-party claim foregoing, to the extent that receipt this Section 9.8 conflicts with the provisions of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations Section 6.12(e) with respect to the third-party claim. HoweverTax Claims, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30Section 6.12(e) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII will apply to the amount conduct of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionTax Claims.

Third Party Claims. In Promptly after the event that assertion by any third party of any claim against any Indemnitee (a “Third-Party Claim”) that, in the Purchaser becomes aware judgment of a third-party claim which the Purchaser believes such Indemnitee, may result in the incurrence by such Indemnitee of Purchaser Damages for which such Indemnitee would be entitled to indemnification pursuant to this Agreement, such Indemnitee shall deliver to Seller a claim against written notice describing in reasonable detail such Third-Party Claim; provided, however, that no delay on the Purchaser by part of the Indemnitee in notifying Seller shall relieve Seller of any liability or on behalf of an Indemnified Personobligations hereunder, except to the Purchaser extent that Seller has been prejudiced thereby, and then only to such extent. Seller shall have the right right, but not the obligation, exercisable in its sole discretion by written notice to conduct the Indemnitee within thirty (30) days of receipt of notice from the Indemnitee of the commencement of or assertion of any Third-Party Claim, to assume the defense and control the settlement of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)Third-Party Claim. The Seller Indemnitee shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does participate in (but not affect any privilege relating to any Indemnified Person and shall be entitledcontrol), at its own expense, the defense and settlement of any Third-Party Claim. If Seller does not elect to participate inundertake and conduct the defense of a Third-Party Claim, but the Indemnitee shall undertake the defense of such Third-Party Claim. In the event Seller has assumed the defense of any Third-Party Claim, Seller shall not consent to determine a settlement of, or conductthe entry of any judgment arising from, any defense of such Third-Party Claim without the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the Indemnitee’s prior written consent of the Seller, (which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given delayed), unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolutionjudgment relates solely to monetary damages and provides for a complete release of the Indemnitee, in which case, no such consent shall be required. The Indemnitee shall have the Seller shall not have any power right to settle, or authority to object under Section 7.4 or any other provision of this Article VII consent to the amount entry of any claim by judgment arising from, any Third-Party Claim for which Seller has not assumed the defense. Whether or on behalf of not Seller elects to defend or prosecute any Indemnified Person with respect to Third-Party Claim, both parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such settlement or resolutionrecords, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.

Third Party Claims. In the event that the Purchaser Acquiror becomes aware of a third-party claim Action which the Purchaser believes may result in constitutes a claim against the Purchaser by matter for which either (a) an Indemnified Person is entitled to indemnification under Section 7.2 or on behalf of an Section 7.3 or (b) if determined adversely to Acquiror or any other Indemnified Person, the Purchaser would provide a basis for a claim for indemnification under any of clauses (a) through (j) of Section 7.2 or clauses (a) through (e) of Section 7.3 (each such claim, a “Third Party Claim”), Acquiror shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)Third Party Claim. The Seller Sellers’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim any Third Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim Third Party Claim or settlement negotiations with respect to the third-party claimThird Party Claim. However, except with the consent of the SellerSellers’ Agent, which consent shall not be unreasonably withheld, conditioned delayed or delayed conditioned, and which shall be deemed to have been given unless the Seller Sellers’ Agent shall have objected within thirty fifteen (3015) days after a written request for such consent by Acquiror, the Purchaser, no amount paid in the settlement or resolution of any such claim with any to the third-party claimant shall not be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Sellers’ Agent has consented (or is deemed to have consented pursuant to the preceding sentence) to any such settlement or resolution, such consent or deemed consent shall be final and binding on the Seller Sellers’ Agent and the Sellers for all purposes hereunder and not subject to appeal, and neither the Sellers’ Agent nor the Sellers shall not have any power or authority to object under Section 7.4 7.7(b) or any other provision of this Article VII to the amount of any claim for Indemnifiable Damages (including costs of investigation and defense and reasonable fees and expenses of lawyers, experts and other professionals) by or on behalf of any Indemnified Person against the Indemnity Escrow Shares or directly against such Sellers with respect to such settlement or resolution.

Third Party Claims. In the event that the Purchaser Parent becomes aware of a thirdclaim by a Third Party (a “Third-party claim which the Purchaser Party Claim”) that Parent in good faith believes may result in a claim against the Purchaser for Damages by or on behalf of an Indemnified Person, the Purchaser Parent shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (Third-Party Claim and the costs and expenses incurred by the Purchaser Parent in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may Parent shall be entitled to seek indemnification pursuant to a claim made hereunder). The Seller Sellers shall have the right to receive copies of all pleadings, notices and communications with respect to the thirdsuch Third-party claim Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledPerson, at its expensesubject to execution by the Sellers of Parent’s (and, to participate inif required, but not to determine or conduct, any defense of the thirdsuch Third Party’s) standard non-party claim or settlement negotiations with respect disclosure agreement to the third-party claimextent that such materials contain confidential or propriety information. However, except Parent shall have the right in its sole discretion to determine and conduct the defense of any Third-Party Claim and the settlement, adjustment or compromise of such Third-Party Claim. Unless otherwise consented to in writing in advance by Parent in its sole discretion, the Sellers and their Affiliates may not participate in any Third-Party Claim or any action related to such Third- Party Claim (including any discussions or negotiations in connection with the consent settlement, adjustment or compromise thereof). In the event that the Sellers have consented to the amount of the Seller, any settlement or resolution by Parent of any such claim (which consent shall not be unreasonably withheld, conditioned or delayed and which consent shall be deemed to have been given unless the Seller Sellers shall have objected within thirty twenty (3020) days after a written request for such therefor by Parent), or if the Sellers shall have been determined to have unreasonably withheld, conditioned or delayed its consent by to the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller Sellers and Indemnifying Party (a) shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII IX to the amount of any claim by or on behalf of any Indemnified Person against the Escrow Fund for indemnity with respect to such settlement or resolution, (b) shall be deemed to have approved the related Claim Certificate and (iii) shall instruct the Escrow Agent to distribute to Parent an amount in cash from the Escrow Fund equal to the applicable Damages with respect to such Third-Party Claim.

Third Party Claims. In Should any claim be made against Buyer or the event that the Purchaser becomes aware of Company by a third-person not a party claim to this Agreement with respect to any matter to which the Purchaser believes may result indemnity set forth in Section 9(a) relates (a claim against “Third-Party Claim”), then Buyer shall promptly give the Purchaser by or on behalf Stockholder written notice of an Indemnified Personany such Third-Party Claim (including all available information regarding the details of the Third-Party Claim). If the Stockholder acknowledges to Buyer in writing that such Third-Party Claim is subject to the indemnity set forth in Section 9(a), the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller Stockholder shall have the right to receive copies of all pleadings, notices and communications with respect to the thirddefend or settle any such Third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledParty Claim, at its sole expense, on its own behalf and with counsel of its own choosing, which counsel shall be reasonably satisfactory to participate in, but not to determine or conduct, any Buyer. In such defense of the third-party claim or settlement negotiations of any Third-Party Claim, Buyer shall cooperate with respect and assist the Stockholder as is reasonable and may participate therein with its own counsel at its sole expense, and Buyer’s written consent shall be a requirement to the third-party claim. However, except with the consent of the Sellerany settlement and disposition thereof, which consent shall not be unreasonably withheldwithheld or delayed, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event provided that the Seller has consented to in any such settlement or resolutiondisposition, the Seller Buyer shall not have be liable for any power or authority to object amounts under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutiondisposition and such settlement or disposition shall contain a complete release of Buyer from any liability. Failure by Buyer to give notice within a reasonable period of time shall not constitute a defense, in whole or in part, to any claim for indemnification by Buyer, except only to the extent that such failure by Buyer shall result in a material prejudice to the Company and the Stockholder. If the Stockholder does not notify Buyer within 10 days after receipt of Buyer’s written notice of a Third-Party Claim that the Stockholder intends to undertake the defense thereof, and that such claim is subject to the indemnity set forth in Section 9(a), or if after undertaking such defense the Stockholder fails to pursue such defense in a prudent manner, then Buyer shall have the right to contest, settle or compromise such Third-Party Claim, and the Stockholder shall indemnify Buyer for the full amount of all Losses paid or suffered by Buyer in respect thereof. So long as the Stockholder has given Buyer timely notice that the Stockholder will undertake the defense of the Third-Party Claim, and is defending such Third-Party Claim in good faith, Buyer shall not pay or settle any such Third-Party Claim without the written consent of the Stockholder.

Third Party Claims. In The Purchaser shall give prompt written notice to the event Sellers of any pending or threatened claim or demand by a third party that the Purchaser becomes aware has determined has given or could give rise to a right of indemnification hereunder (each a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand; provided, however, that the failure to provide such notice shall not release the Sellers from any of its obligations under Section 6 except to the extent the Purchaser is materially prejudiced by such failure, it being understood that notices for claims in respect of a third-party claim breach of a representation or warranty must be delivered prior to the expiration of the applicable survival period specified in Section 6.1 for such representation or warranty. The Sellers shall have the right, but not the obligation, to direct, through counsel of its own choosing, which counsel shall be reasonably satisfactory to the Purchaser, the defense or settlement of any Third Party Claim the subject of indemnification hereunder at its own expense. If the Sellers elect to assume the defense of any such Third Party Claim, the Purchaser believes may result participate in a claim against such defense, but in such case the expenses of the Purchaser shall be paid by the Purchaser. The Purchaser shall provide the Sellers with reasonable access to its records and personnel relating to any such claim, assertion, event or on behalf of an Indemnified Personproceeding during normal business hours and shall otherwise cooperate with the Sellers in the defense or settlement thereof, and the Sellers shall reimburse the Purchaser for all its reasonable out-of-pocket expenses in connection therewith. If the Sellers shall fail to undertake any such defense, the Purchaser shall have the right in its sole discretion to conduct undertake the defense or settlement thereof, at the Sellers’ expense. Whether or not the Sellers shall have assumed the defense of a Third Party Claim, the Purchaser shall not admit any liability with respect thereto, or settle, compromise or discharge such Third Party Claim without the Sellers’ prior written consent which shall not be unreasonably delayed or withheld. If the Purchaser assumes the defense of any such Third Party Claim pursuant to this Section 6.5 and proposes to settle or resolve any such claim (or proceeding prior to a final judgment thereon or to forgo any appeal with respect thereto, then the Purchaser shall give the Sellers prompt written notice thereof and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller Sellers shall have the right to receive copies participate in the settlement or assume or reassume the defense of all pleadings, notices and communications with respect such claim or proceeding at any time by written notice to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution.

Third Party Claims. In the event that the Purchaser If Parent becomes aware of a third-party claim which the Purchaser that Parent believes may result in a claim against the Purchaser for indemnification in accordance with Section 7.1 by or on behalf of an Indemnified Person, Parent shall promptly notify the Purchaser Shareholders’ Representative of such third-party claim and provide the Shareholders’ Representative the opportunity to direct, through counsel of its own choosing (who shall have be reasonably acceptable to Parent), at its own cost, the right defense or settlement of such claim; provided, however, that (a) the claim or proceeding solely seeks (and continues to seek) monetary damages; (b) Parent reasonably determines in its sole discretion good faith that there is no reasonable likelihood that such claim will cause the Indemnified Persons to conduct suffer Losses in excess of the amount held in the Cash Escrow Fund and the Stock Escrow Fund from time to time during the pendency of the claim, excluding any amount subject to any other claim; and (c) the Shareholders’ Representative agrees in writing on behalf of all Indemnifying Shareholders that the Indemnifying Shareholders will be liable for any amounts paid in resolution or settlement of the claim regardless of the limitations set forth in ARTICLE 7 (the conditions set forth in clauses (a) through (c) are, collectively, the “Litigation Conditions”). If the Litigation Conditions are met and the Shareholders’ Representative elects to assume the defense of and to settle or resolve any such claim (and or proceeding, the costs and expenses incurred by Shareholders’ Representative shall allow the Purchaser Indemnified Persons to participate in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) but in such case the expenses of the Indemnified Persons shall be included paid by the Indemnified Persons. An Indemnified Person shall provide the Shareholders’ Representative and counsel with reasonable access to its records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with the Shareholders’ Representative in the Indemnifiable Damages defense or settlement thereof, and the Indemnified Persons shall be reimbursed for all of their reasonable out-of-pocket expenses in connection therewith. If the Shareholders’ Representative elects to direct the defense of any such claim or proceeding, the Indemnified Persons shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless (i) the Shareholders’ Representative consents in writing to such payment, (ii) the Shareholders’ Representative withdraws from the defense of such asserted liability and Parent undertakes the defense or settlement of such claim or proceeding and settles such claim or proceeding in accordance with this Section 7.8 unless a final judgment from which no appeal may be taken by or on behalf of the Purchaser may seek indemnification pursuant Indemnifying Shareholders is entered against Indemnified Persons for such liability. If the Shareholders’ Representative fails to a claim made hereunder). The Seller defend or if, after commencing or undertaking any such defense, the Shareholders’ Representative fails to prosecute or withdraws from such defense, or if any of the Litigation Conditions cease to be met, Parent shall have the right to receive copies of all pleadingsundertake the defense or settlement thereof, notices and communications with respect retain counsel, reasonably satisfactory to the third-party claim Shareholders’ Representative, at the Indemnifying Shareholders’ expense; provided, however, that the Indemnifying Shareholders shall not be required to pay the fees and expenses of more than one counsel for the Indemnified Persons in any single action, except to the extent that receipt two or more such Indemnified Persons shall have conflicting interests in the outcome of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledaction and, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with without the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the PurchaserShareholders’ Representative in writing, no settlement or resolution of any such claim with any third-party claimant claimants shall be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such mattermatter (but in no event shall the amount of Losses exceed the aggregate of the actual cost incurred by the Indemnified Persons in defending such claim and the amount of such settlement). In If the event that the Seller has consented Shareholders’ Representative consents to any such settlement or resolutionsettlement, neither the Seller Shareholders’ Representative nor any Indemnifying Shareholder shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount or validity of any claim by or on behalf of any Indemnified Person for indemnity with respect to such settlement settlement. Notwithstanding any other provision of this Agreement, any costs and expenses of defense and investigation, including court costs and reasonable attorneys fees incurred or resolutionsuffered by the Indemnified Persons in connection with the defense of any such third party claim, whether or not it is determined that there was a breach or inaccuracy of a representation or warranty or any other matter specified in Section 7.1 as a basis for indemnification under this Agreement, shall constitute Losses subject to indemnities under Section 7.1.

Third Party Claims. In the event that the Purchaser SumTotal becomes aware of a third-party claim which the Purchaser claim, action or proceeding that SumTotal reasonably believes may result in a claim demand against the Purchaser by Escrow Fund, SumTotal shall promptly notify the Stockholder Representative of such claim, action or on behalf of an Indemnified Personproceeding, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and Stockholder Representative shall be entitled, at its expense, to participate in, but not to determine or conduct, in any defense of such claim. If there is a third-party claim that, if adversely determined, would give rise to a right of recovery for Losses hereunder, then any amounts incurred or accrued in defense of such third-party claim (including reasonable counter-claims), regardless of the outcome of such claim, shall be deemed Losses hereunder and shall be subject to the limitations set forth in Section 2.10(b) of the Pathlore Schedules with respect to Agreed Claims (it being understood that any amounts awarded in connection with any such counter-claims shall be first offset against any Losses subject to indemnification (and limits thereto) hereunder and incurred in connection with the underlying third-party claim). SumTotal shall have the right in its sole discretion to control the defense of all such claims and to settle all such claims; provided, however, that SumTotal shall not settle any third-party claims without the prior written consent of the Stockholder Representative, which consent will not be unreasonably withheld or delayed. To the extent the Stockholder Representative presents the Indemnified Party with a bona fide offer from the third-party claim claimant regarding a settlement for money damages in an amount which, taken together with all Losses relating to the underlying third-party claims, is less than the value remaining in the Escrow Fund that is not already subject to existing claims pursuant to an Officer’s Certificate or settlement negotiations with respect Certificates, and which offer includes no material obligations or restrictions on SumTotal or its business other than the payment of money damages, then SumTotal may elect to (A) settle the third-party claim. However, except with claims on the consent proposed terms and conditions of the Sellerproposed settlement in which case SumTotal shall recover the full amount of such settlement (and related Losses) from the Escrow Fund pursuant to Article VII without any objection from the Stockholder Representative, subject to the limitations on recovery provided in Section 7.2(i) with respect to Agreed Claims or (B) reject the settlement in which consent case SumTotal agrees and acknowledges that is shall not thereafter be unreasonably withheld, conditioned or delayed and which responsible for all Losses in excess of the proposed settlement offer (including litigation expenses incurred thereafter). The Indemnified Party shall be deemed to have been given unless keep the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution Stockholder Representative informed of any such claim settlement proposals and the parties shall consult and cooperate with each other in good faith in connection with any such third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionclaims.

Third Party Claims. In the event that the Purchaser Parent becomes aware of a third-party claim suit, proceeding, claim, audit, review, arbitration or, to the Company’s knowledge, investigation of any nature which the Purchaser believes may result in constitutes a claim against the Purchaser by matter for which either (a) an Indemnified Person is entitled to indemnification under Article VIII or on behalf of an (b) if determined adversely to Parent or any other Indemnified Person, the Purchaser would provide a basis for a claim for indemnification under Article VIII (each such claim, a “Third Party Claim”), Parent shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)claim. The Seller Shareholders’ Representative shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim any Third Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim Third Party Claim or settlement negotiations with respect to the third-party claimThird Party Claim. However, except with the consent of the SellerShareholders’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless delayed, the Seller shall have objected within thirty (30) days after a written request for such consent by amount paid in the Purchaser, no settlement or resolution of any such claim with any to the third-party claimant shall not be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Shareholders’ Representative has consented (or deemed to have consented) to any such settlement or resolution, neither the Seller Shareholders’ Representative nor the Indemnifying Persons shall not have any power or authority to object under Section 7.4 8.06(b) or any other provision of this Article VII VIII to the amount of any claim for Damages (including costs of investigation and defense and reasonable fees and expenses of lawyers, experts and other professionals) by or on behalf of any Indemnified Person against the Escrow Fund or directly against such Indemnifying Persons for indemnity with respect to such settlement or resolution.

Third Party Claims. In the event that the Purchaser Buyer becomes aware of a third-party claim which the Purchaser or demand (including a threat in writing of such), or is served with a third-party complaint, counterclaim or cross-claim in litigation (collectively, a “Third-Party Claim”) that Buyer reasonably believes may result in a claim against for indemnification under this Agreement, Buyer shall promptly notify Seller in the Purchaser by relevant Claim Certificate (or on behalf amendment thereof) of an Indemnified Person, such Third-Party Claim and (subject to any applicable confidentiality or privacy obligations or law) the Purchaser identity of the person or party asserting such claim or demand; provided that the failure to give prompt notice shall have not affect the right in its sole discretion to conduct the defense of indemnification provided hereunder except if and to settle or resolve any the extent Seller has been actually and materially prejudiced as a result of such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)failure. The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the thirdThird-party claim Party Claim to the extent that receipt of such documents does not affect any claim of privilege relating to any Indemnified Person Person, and subject to execution by Seller of Buyer’s (and, if required, such third party’s) standard non-disclosure agreement to the extent that such materials contain confidential or propriety information. Seller, shall, at its sole expense, be entitled to participate in any defense of such Third-Party Claim; provided that Buyer shall have the right in its sole discretion to determine and conduct the defense of any Third-Party Claims. Buyer shall be entitled to settle such Third-Party Claim without the consent of Seller; provided that any settlement of a Third-Party Claim without the consent of Seller shall not be determinative of any indemnification Claim that may be made hereunder resulting from such Third-Party Claim. Notwithstanding anything to the contrary contained herein, if there is a Third-Party claim that if adversely determined would give rise to a right of recovery for Indemnifiable Damages hereunder that is either, (a) not otherwise subject to a settlement or other adjudication that is consented to in writing by Seller or (b) is not otherwise determined to constitute Indemnifiable Damages hereunder, then 50% of any amounts incurred by the Indemnified Persons in defense of such Third-Party Claim, shall be deemed Indemnifiable Damages and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense borne by the Indemnifying Parties in accordance with this Article VIII and the remaining 50% of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which such amounts shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent borne by the Purchaser, no settlement or resolution of any such claim with any third-party claimant Indemnified Persons. If there shall be determinative any conflicts between the provisions of the existence of or amount of Indemnifiable Damages this Section 9.6 and Section 6.10(b) (relating to such matter. In the event that the Seller has consented to any such settlement or resolutionTax Contests), the Seller provisions of Section 6.10(b) shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutioncontrol.

Third Party Claims. In the event that the Purchaser Buyer becomes aware of a third-party claim which the Purchaser Buyer in good faith believes may is reasonably likely to result in Indemnifiable Damages (a claim against the Purchaser by or on behalf of an Indemnified Person“Third Party Claim”), the Purchaser Buyer shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (Third Party Claim. Buyer shall timely notify the Sellers’ Representative of a Third Party Claim, and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneysSellers’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller Representative shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim Third Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense of the third-party claim Third Party Claim or settlement negotiations with respect to the third-party claimThird Party Claim. However, except with the written consent of the SellerSellers’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Sellers’ Representative shall have objected within thirty (30) days Business Days after a written request for such consent is delivered to the Sellers’ Representative by the PurchaserBuyer, no settlement or resolution by Buyer of any such claim with any third-party claimant that gives rise to a claim against the Indemnifying Parties shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Sellers’ Representative has consented to any such settlement or resolution, neither the Seller Sellers’ Representative nor any Indemnifying Party shall not have any power or authority to object under Section 7.4 9.6 or any other provision of this Article VII ARTICLE 9 to the amount of any claim by or on behalf of any Indemnified Person for indemnity with respect to such settlement or resolution but only to the extent that the amount of any such claim by or on behalf of any Indemnified Person is equal to or less than the amount consented to in any such settlement or resolution.

Third Party Claims. In the event that the Purchaser becomes aware of a third-party If any claim which the Purchaser believes may result in by an Indemnified Buyer Entity relates to a claim against the Purchaser Indemnified Buyer Entity by a third party, the Seller may elect at any time to negotiate a settlement of such claim or on behalf to defend such claim at the Seller's own cost (subject to the last sentence of this Section 11.5.3(b)) and with its own counsel. The Seller's counsel must be satisfactory to the Indemnified Buyer Entity in its reasonable discretion. If, within 30 days after an Indemnified PersonBuyer Entity gives the Seller a Claim Notice relating to a third party claim, the Purchaser Seller (i) advises the Indemnified Buyer Entity in writing that the Seller will not defend or settle such claim, or (ii) fails to make such an election in writing, the Indemnified Buyer Entity may defend, settle, or pay the claim. Until the Seller makes an election under this Section 11.5.3(b), all of the Indemnified Buyer Entity's reasonable costs relating to such claim will be Damages to be indemnified by the Seller. Each party shall have give the right other party such assistance as may reasonably be requested to ensure the proper defense of such claim. If the Seller elects to defend such claim, the Indemnified Buyer Entity may at its own cost participate in such defense with the counsel of its choice. Such counsel must be satisfactory to the Seller in its sole discretion reasonable discretion. Notwithstanding the above, the Seller shall allow the Indemnified Buyer Entity to conduct assume part or all of such claim if the defense Indemnified Buyer Entity reasonably believes such assumption is necessary to assure that (i) it may enforce any Mortgage Loan or Servicing Rights, (ii) its method of and conducting its business is not materially impaired, (iii) its authority to Service or originate mortgage loans is not materially impaired, or (iv) its reputation, goodwill and/or financial condition are not materially impaired. Neither the Seller nor the Indemnified Buyer Entity is authorized to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to dispose of a claim made hereunder). The Seller shall have of more than $5,000 without the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Sellerother party's written consent, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution.

Third Party Claims. In the event that the Purchaser becomes aware of If a third-party claim which the Purchaser believes may result in a claim Claim is made against the Purchaser by or on behalf of an Indemnified Persona third party for which Purchaser may be entitled to indemnification under Section 9.1, the Purchaser shall have give notice (the right in its sole discretion "Indemnity Notice") to conduct Seller specifying the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt particulars of such documents does not affect Claim forthwith and in any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected event within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative it receives notification of the existence Claim. Failure to give such notice within such time period shall not prejudice the rights of or amount of Indemnifiable Damages relating Purchaser except to such matter. In the event extent that the failure to give such notice materially adversely affects the ability of Seller has consented to any such settlement defend the Claim or resolutionto cure the breach or incorrectness of the representation, warranty, covenant or agreement giving rise to the Claim or that Seller suffers damages as a result thereof. Seller shall not have the right to participate in any power negotiations or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person proceedings with respect to such settlement Claim at its own expense. Purchaser shall not settle or resolutioncompromise any such Claim without the prior written consent of Seller, which shall not be unreasonably refused. Purchaser shall cooperate in all reasonable respects in the defense of such Claim but at the expense of Seller. If Seller fails, after the giving of such notice, diligently and reasonably to defend such Claim throughout the period that such Claim exists, its right to defend the Claim shall terminate and Purchaser may assume the defense of such Claim at the sole expense of Seller. In such event, Purchaser may compromise or settle such Claim, without the consent of Seller. If Purchaser becomes aware of a possible infringement by a third party on the GhostStep® Technology, the Intellectual Property, the name GhostStep® and the Patents set out in Schedule A, it shall give notice to Seller of such possible infringement. In such a case, Purchaser may, at its sole discretion, decide to defend the Patents, but shall not be under any obligation to do so. If Xxxxxxxxx decides not to defend the Patent, Seller shall have the right to do so, at its own expense.

Third Party Claims. In the event that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in a claim against the Purchaser With respect to any claims or demands by or on behalf of an Indemnified Personthird parties, the whenever any Purchaser shall have received a written notice that such a claim or demand has been asserted or threatened, the right in its sole discretion to conduct Purchasers shall notify the defense Shareholder of and to settle or resolve any such claim (or demand and of the costs and expenses incurred by facts within the Purchaser in connection with Purchasers' knowledge that relate thereto within a reasonable time after receiving such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)written notice. The Seller Shareholder shall then have the right to receive copies contest, negotiate or settle any such claim or demand through counsel of all pleadingstheir own selection, notices satisfactory to the Purchasers and communications solely at their own cost, risk, and expense, provided that the Shareholder has acknowledged in writing its unqualified obligation to indemnify the Purchasers with respect to the third-party claim matter so notified by the Purchaser. Notwithstanding the preceding sentence, the Shareholder shall not settle, compromise, or offer to the extent that receipt of settle or compromise any such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to demand without the third-party claim. However, except with the prior written consent of the SellerPurchasers, which consent shall not be unreasonably withheld, conditioned . If the Shareholder fails to give written notice to the Purchasers of its intention to contest or delayed and which shall be deemed to have been given unless the Seller shall have objected settle any such claim or demand within thirty (30) calendar days after a written request for such consent by the Purchaser, no settlement or resolution of Purchasers have notified the Shareholder that any such claim with or demand has been made in writing and received by the Purchasers, or if any third-party claimant such notice is given but any such claim or demand is not promptly contested by the Shareholder, the Purchasers shall have the right to satisfy and discharge the same by payment, compromise, or otherwise, and the Shareholder shall be determinative entirely liable therefor to the Purchasers under this indemnity. The Purchasers may also, if they so elect and entirely within their own discretion, defend any such claim or demand if the Shareholder fails to give notice of its intention to contest or settle any such claim or demand, in which event the Shareholder shall be required to indemnify the Purchasers and their affiliates for any and all costs, losses, liabilities, and expenses whatsoever, including without limitation reasonable attorneys' and other professional fees, that the Purchasers may sustain, suffer, incur, or become subject to as a result of the existence of or amount of Indemnifiable Damages relating Purchasers' decision to such matter. In the event that the Seller has consented to defend any such settlement claim or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutiondemand.

Third Party Claims. In the event that the a Purchaser Indemnified Person becomes aware of a third-party claim which could result in Damages for which it or any other Purchaser Indemnified Person may be entitled to indemnification hereunder, such Purchaser Indemnified Person shall promptly and without delay notify Seller Representative of such third-party claim, and Sellers shall be entitled, at their own expense, to participate in any defense of such claim; provided, however, that no delay or failure on the part of the Purchaser believes may result in a notifying the Seller Representative shall relieve the Sellers from any obligation hereunder unless the Sellers are thereby prejudiced (and then solely to the extent of such prejudice). A Purchaser Indemnified Person shall be entitled to assume the defense of such third-party claim against the with counsel of its selection. A Purchaser by or on behalf of an Indemnified Person, the Purchaser Person shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defenseClaim; provided, settlement or resolution (including reasonable attorneys’ feeshowever, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which event that the Purchaser may seek indemnification pursuant Seller Representative has not consented to a claim made hereunder). The any such settlement in writing, the Seller Representative shall have retain the right to receive copies object under this Section 9 to the amount of all pleadings, notices and communications any Claim by a Purchaser Indemnified Person for indemnity with respect to such settlement, including the reasonableness of the amount of such settlement; provided further, however, that in the event that Seller Representative has consented in writing to any settlement of any third-party claim to the extent that receipt of such documents does not affect which any privilege relating to any Purchaser Indemnified Person and shall be entitledis entitled to indemnification under this Section 9, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Representative shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII Section 9 to the amount of any claim Claim by or on behalf of any Indemnified Person the Purchaser for indemnity with respect to such settlement or resolutionsettlement.

Third Party Claims. In the event that the Purchaser If any Indemnitee becomes aware of a third-third party claim which the Purchaser believes that Parent believes, in good faith, may result in a an Indemnification Claim, such Indemnitee shall notify the Stockholder Representative of such claim against promptly after receiving notice thereof, describing the Purchaser by or on behalf claim in reasonable detail, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail. Failure to notify the Stockholder Representative of an Indemnified Person, Indemnification Claim in a timely manner as specified in the Purchaser preceding sentence shall have not be deemed a waiver of the Indemnitee’s right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser indemnification hereunder for Losses in connection with such defenseclaim, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) but the amount of reimbursement to which the Indemnitee is entitled shall be included in reduced by the Indemnifiable Damages for amount, if any, by which the Purchaser may seek indemnification pursuant to a claim made hereunder)Indemnitee’s Losses would have been reduced had such notice been timely delivered. The Seller shall have Stockholder Representative, as representative for the right to receive copies of all pleadingsEscrowed Stockholders, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, entitled to participate inin any such defense. Subject to Section 10.5(b) hereof and the terms and conditions of the Escrow Agreement, the reasonable costs of the defense of any third party action or claim incurred by the Stockholder Representative shall be paid from the General Escrow Amount. Notwithstanding the immediately preceding sentence, Parent shall conduct such defense in a commercially reasonable manner, but shall not to determine or conduct, settle any defense of the third-party such claim or settlement negotiations with respect to the third-party claim. However, except with without the consent of the SellerStockholder Representative, which such consent shall not to be unreasonably withheld; provided, conditioned or delayed and which shall be deemed to have been given unless however, that if the Seller shall have objected within thirty (30) days after a written request for consent of the Stockholder Representative is so obtained, such consent by the Purchaser, no settlement or resolution of that portion of any such claim with any third-party claimant shall alone be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that claim against the Seller General Escrow Amount and neither the Stockholder Representative nor any Person who has consented to any such settlement or resolution, a beneficial interest in the Seller General Escrow Amount shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII X or the Escrow Agreement to the amount of any claim demand by or on behalf of any Indemnified Person Parent against the General Escrow Amount with respect to such settlement or resolutionsettlement.

Third Party Claims. In Should any Third-Party Claim be made against the event that the Purchaser becomes aware of a third-party claim Stockholders with respect to any matter to which the Purchaser believes may result indemnity set forth in a claim against Section 10(a) relates, then the Purchaser by or on behalf Stockholders shall promptly give Buyer written notice of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (Third-Party Claim and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller Buyer shall have the right to receive copies of all pleadings, notices and communications with respect to the thirddefend or settle any such Third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledParty Claim, at its sole expense, on its own behalf and with counsel of its own choosing, which counsel shall be reasonably satisfactory to participate in, but not to determine or conduct, any the Stockholders. The Stockholders agree that Xxxxxxxxx Xxxxxxxxxx & Xxxx LLP is satisfactory. In such defense of the third-party claim or settlement negotiations of any claim, the Stockholders shall cooperate with respect and assist Buyer to the third-party claim. Howevermaximum extent reasonably possible and may participate therein with his or her own counsel at his or her own expense, except with and the Stockholders' written consent of the Sellershall be a requirement to any settlement and disposition thereof, which consent shall not be unreasonably withheldwithheld or delayed. Failure by the Stockholders to give notice within a reasonable period of time shall not constitute a defense, conditioned in whole or delayed and which in part, to any claim for indemnification by the Stockholders, except only to the extent that such failure by the Stockholders shall be deemed result in a material prejudice to have been given unless Buyer. If Buyer does not notify the Seller shall have objected Stockholders within thirty ten (3010) days after receipt of the Stockholders' written notice of a written request Third-Party Claim that Buyer intends to undertake the defense thereof, and that such claim is subject to the indemnity set forth in Section 10(a), or if after undertaking such defense Buyer fails to pursue such defense in a prudent manner, then the Stockholders shall have the right to contest, settle or compromise the claim and Buyer shall indemnify the Stockholders for such consent the full amount of all Losses paid or suffered by the PurchaserStockholders in respect thereof. Notwithstanding the foregoing, no settlement so long as Buyer is contesting any such Third Party Claim in good faith, the Stockholders shall not have the right to pay or resolution of settle any such claim with any third-party claimant shall be determinative without the prior written consent of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionBuyer.

Third Party Claims. In the event that claims are asserted against the Purchaser becomes aware Companies of the Schaeff Group of Companies for which Buyer demands indemnification from the Sellers, the Buyer shall promptly notify the Sellers about such claim and provide them with all reasonable information on such claim. The Parties shall then evaluate jointly the merits of such claim, seek to reach agreement as to and mutually assist each other in defending such claims. Within a third-party claim which time period of thirty (30) days after notification of the Purchaser believes may result in Sellers by Buyer about a claim being asserted against the Purchaser by or on behalf Companies of an Indemnified Personthe Schaeff Group of Companies for which Buyer demands indemnification from the Sellers, the Purchaser Parties shall have use their reasonable best efforts to come to a mutual agreement about who of them will defend the right Companies of the Schaeff Group of Companies against such claim. If the Parties fail to come to an agreement in its sole discretion such time period, then the Buyer shall be entitled to conduct defend the defense Companies of and to settle or resolve any the Schaeff Group of Companies against such claim with counsel selected by him (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant subject to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the SellerSellers, which consent shall not be unreasonably withheld) as long as the Buyer is conducting a good faith and diligent defense. The Sellers shall at all times have the right to fully participate in the defense of a third party claim at their own expense directly or through counsel and the Buyer shall provide them with any and all reasonable Agreement on the Sale and Purchase of Shares as of November 26, conditioned 2001 Page -55- ________________________________________________________________________________ information on the claim and the defense. If such good faith and diligent defense is not being or delayed and which shall ceases to be deemed to have been given unless conducted by the Seller Buyer, the Sellers shall have objected within thirty the right to undertake the defense of such claim (30) days after with counsel selected by them, subject to the consent of the Buyer, which consent shall not be unreasonably withheld). In such case, the Buyer shall at all times have the right to fully participate in the defense of a written request for third party claim at his own expense directly or through counsel. Notwithstanding the foregoing and as a matter of principle, with respect to third party claims, the Parties agree to co-operate in good faith and will make available such consent by the Purchaserinformation and assistance that is reasonable to defend such third party claims, no settlement matter whether the Buyer or resolution of any the Sellers direct the defend against such claim with any third-third party claimant shall be determinative of claim. If the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolutiondefense is being directed by Buyer, the Seller shall not have Buyer is only then entitled to accept such claim, enter into negotiations and enter into any power or authority to object under Section 7.4 or any other provision kinds of this Article VII to the amount of any claim by or settlement agreements for and on behalf of the Companies of the Schaeff Group of Companies with the prior written consent of the Sellers, which consent will not be unreasonably withheld. Buyer and the respective Company of the Schaeff Group of Companies shall also under no circumstances be entitled to make any Indemnified Person payments without the prior written consent of the Sellers, unless it is done in accordance with respect to a provisionally or finally enforceable court decision or a provisionally or finally enforceable administrative order (including tax orders). The reasonable legal fees and other costs incurred with the defense against a third party claim shall be borne by the Sellers, even if the Buyer is directing the defense against such settlement or resolutionthird party claim.

Third Party Claims. In the event that the Purchaser Parent becomes aware of a third-third party claim (a “Third Party Claim”) which the Purchaser Parent reasonably believes may result in a claim against for indemnification pursuant to this Article VIII, Parent shall promptly notify the Purchaser Stockholder Representative of such claim with an Indemnification Claim Notice (a “Third Party Notice”), and the Third Party Notice shall be accompanied by copies of any documentation submitted by the third party making such Third Party Claim (except that Parent may withhold from Stockholder Representative such communications with its legal counsel to the extent that legal counsel to Parent advises that providing such communication could result in the loss of any attorney-client privilege or right under the work-product doctrine of Parent or any Indemnitee in respect of such claim, after giving due consideration to any “community of interest” or similar privilege, if any); provided, that no delay or failure on the part of Parent in delivering a Third Party Notice shall cause any Parent Indemnified Party to forfeit any indemnification rights under this Article VIII except to the extent that the Company Indemnitors are actually and materially prejudiced by such delay or failure. Upon receipt of a Third Party Notice, the Stockholder Representative shall be entitled (on behalf of an Indemnified Personthe Company Indemnitors and at their expense) to participate in, but not to control, determine or conduct, the Purchaser defense of such Third Party Claim. Parent shall have the right in its sole discretion to conduct the defense of of, and to settle or resolve settle, any such claim (and the costs and expenses incurred by the Purchaser in connection with such defenseStockholder Representative shall not be entitled to control any negotiation of settlement, settlement adjustment or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications compromise with respect to the third-party claim to the extent any such Third Party Claim; provided, that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, Stockholder Representative (which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchasermay be withhold for any reason), no settlement or resolution of any such claim Third Party Claim with any third-third party claimant claimants shall be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such matter. In the event that the Seller Stockholder Representative has consented to any such settlement settlement, adjustment or resolutioncompromise, the Seller Company Indemnitors shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII VIII to the amount of any claim by such settlement, adjustment or on behalf of any Indemnified Person with respect compromise. The parties agree that the matter specified in Schedule 8.2(a)(x) shall additionally be subject to such settlement or resolutionthe procedures set forth in Item 5 thereof.

Third Party Claims. In the event that the Purchaser Parent becomes aware of a third-party claim which the Purchaser Third- Party Claim that Parent in good faith believes may result in a claim against the Purchaser for Losses by or on behalf of an Indemnified PersonParty, the Purchaser Parent shall have the right in its sole discretion to determine and conduct the defense of and and, subject to the proviso hereto, to settle or otherwise resolve any such claim (Third-Party Claim, and the costs and expenses incurred by the Purchaser Parent or its Affiliates in connection with such defense, settlement enforcement, settlement, or resolution (including reasonable out-of-pocket attorneys’ fees, other professionals’ and experts’ fees fees, and court or arbitration costs) shall be included in the Indemnifiable Damages Losses for which the Purchaser may seek Parent shall be entitled to receive indemnification pursuant to a claim an Indemnification Claim made hereunder, and such costs and expenses shall constitute Losses subject to indemnification under Section 7.02 regardless of whether it is ultimately determined that such Third-Party Claim arose out of, resulted from, or was in connection with a matter listed in Section 7.02; provided, however, that Indemnified Parties shall not agree to any settlement or resolution of any such Third- Party Claim without the prior written consent of the Shareholder Representative (which consent shall not be unreasonably withheld, conditioned, or delayed and which consent shall be deemed to have been given unless the Shareholder Representative shall have objected within thirty (30) days after a written request therefor by Parent). The Seller Shareholder Representative shall have the right to receive receive, and Parent shall reasonably promptly provide to the Shareholder Representative, copies of all pleadings, notices notices, and communications with respect to the thirdsuch Third-party claim Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person Party, and Parent shall keep the Shareholder Representative reasonably apprised of the status of such Third- Party Claim and the defense thereof, and shall be entitled, consider in good faith recommendations made by the Shareholder Representative with respect thereto. The Shareholder Representative and its Affiliates may participate in any Third-Party Claim or any action related to such Third-Party Claim at its own cost and expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Shareholder Representative has consented to the amount of any settlement or resolution by Parent of any such Third-Party Claim, or if the Shareholder Representative shall have been determined by a court of competent jurisdiction to have unreasonably withheld, conditioned, or delayed its consent to the amount of any such settlement or resolution, neither the Seller Shareholder Representative nor any Shareholder shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII ARTICLE 7 to the amount of any claim Indemnification Claim by or on behalf of any Indemnified Person Party for indemnity with respect to such settlement or resolution.

Third Party Claims. In Promptly and no later than sixty (60) days after the assertion by any third party of any claim against any Indemnitee (a “Third-Party Claim”) (but in no event that later than the Purchaser becomes aware Survival Date) that, in the judgment of a third-party claim which the Purchaser believes such Indemnitee, may result in the incurrence by such Indemnitee of Buyer Damages for which such Indemnitee would be entitled to indemnification pursuant to this Agreement, such Indemnitee shall deliver to Seller a claim against the Purchaser by or on behalf of an Indemnified Person, the Purchaser written notice describing in reasonable detail such Third-Party Claim (subject to Section 8.4). Seller shall have the right right, but not the obligation, exercisable in its sole discretion by written notice to conduct the Indemnitee within thirty (30) days of receipt of notice from the Indemnitee of the commencement of or assertion of any Third-Party Claim, to assume the defense and control the settlement of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)Third-Party Claim. The Seller Indemnitee shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does participate in (but not affect any privilege relating to any Indemnified Person and shall be entitledcontrol), at its own expense, the defense and settlement of any Third-Party Claim. If Seller does not elect to participate inundertake and conduct the defense of a Third-Party Claim, but the Indemnitee shall undertake the defense of such Third-Party Claim. In the event Seller has assumed the defense of any Third-Party Claim, Seller shall not consent to determine a settlement of, or conductthe entry of any judgment arising from, any defense of such Third-Party Claim without the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the Indemnitee’s prior written consent of the Seller, (which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given delayed), unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolutionjudgment relates solely to monetary damages and provides for a complete release of the Indemnitee, in which case, no such consent shall be required. The Indemnitee shall have the Seller shall not have any power right to settle, or authority to object under Section 7.4 or any other provision of this Article VII consent to the amount entry of any claim by judgment arising from, any Third-Party Claim for which Seller has not assumed the defense. Whether or on behalf of not Seller elects to defend or prosecute any Indemnified Person with respect to Third-Party Claim, both parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such settlement or resolutionrecords, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.

Third Party Claims. (a) In the event that the Purchaser becomes aware of any party receives a third-party claim which such party believes give rise to indemnification under this ARTICLE IX (a “Third Party Claim”), such party shall promptly notify the Purchaser believes may result in a claim against indemnifying party of such Third Party Claim; provided, however, that the Purchaser by or on behalf of an Indemnified Person, failure to give prompt notice shall not affect the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim provided hereunder except to the extent that receipt indemnifying party has been actually prejudiced as a result of such documents does not affect any privilege relating failure. The notice of Third Party Claim shall include, based on the information then available to any Indemnified Person such party, a summary in reasonable detail of the basis for the claim and a reasonable estimate of the Damages. The indemnifying party shall be entitled, at its own expense, to participate inin the defense and resolution of such claim; provided, but however, that the indemnified party shall have Control over the litigation; provided, further that any such settlement shall not to determine or conduct, any defense be determinative of the third-party claim existence of or settlement negotiations with respect amount of Damages relating to the third-party such claim. However, except with the consent of the Sellerindemnifying party, which consent shall not be unreasonably withheld, conditioned withheld or delayed and which consent shall be deemed to have been given unless the Seller indemnifying party shall have objected in writing within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matterindemnified party. In the event that the Seller Shareholders’ Agent has consented to any such settlement or resolutionof a Third Party Claim, then provided that the Seller Shareholders’ Agent has acted as directed by the Shareholders as described above, neither the Shareholders’ Agent nor any of the Shareholders shall not have any power or authority to object under Section 7.4 9.2 or any other provision of this Article VII ARTICLE IX to any claim by an Indemnified Person for offset against any amounts payable to the Shareholders or for indemnity in the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionsettlement.

Third Party Claims. In the event that Buyer or the Purchaser becomes aware Surviving Corporation receives written notice of a third-party claim (a "Third Party Claim") which the Purchaser believes Buyer reasonably expects may result in a claim demand against the Purchaser Escrow Fund, Buyer shall provide the Shareholder Representative with reasonably prompt written notice thereof. The Shareholder Representative, as representative for the Shareholders, shall have the right to participate in or, by giving written notice to Buyer, to assume the defense of any Third Party Claim at the expense of the Escrow Fund and by counsel selected by the Shareholder Representative (which counsel must be reasonably satisfactory to Buyer), and Buyer will cooperate in good faith (and shall be permitted to participate at Buyer's expense) in such defense; provided, however, that the Shareholder 49 57 Representative shall not be entitled to assume control of the defense of any Third Party Claim that (i) could reasonably be expected to have any impact on the ongoing operations or on behalf goodwill of an Indemnified Person, the Purchaser Surviving Corporation or Buyer or their intellectual property or (ii) could reasonably be expected to result in Losses in excess of the Escrow Fund. Buyer shall have the right in its sole discretion to conduct the defense of and to settle any Third Party Claim contemplated by clause (i) or resolve (ii) above; provided, however, that if Buyer settles any such claim Third Party Claim without the Shareholder Representative's written consent (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheldwithheld or delayed), conditioned Buyer may not make a claim against the Escrow Fund with respect to the amount of Losses incurred by Buyer in such settlement unless the Shareholder Representative unreasonably withheld or delayed and such consent; provided, further, that the Shareholder Representative may not settle any Third Party Claim without Buyer's written consent (which consent shall not be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement unreasonably withheld or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matterdelayed). In the event that the Seller Shareholder Representative has consented to any such settlement or resolutionsettlement, the Seller Shareholder Representative shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII 7 to the amount of any claim by or on behalf of any Indemnified Person Buyer against the Escrow Fund with respect to the amount of Losses incurred by Buyer in such settlement or resolutionas consented to by the Shareholder Representative.

Third Party Claims. In the event that the Purchaser Parent becomes aware of any action, suit or proceeding initiated by a third-third party claim which the Purchaser (a “Third Party Claim”) that Parent reasonably believes may result in a claim demand against the Purchaser Escrow Fund or for other indemnification pursuant to this Article VII, Parent shall promptly notify the Shareholder Representative of such claim (provided that any failure by Parent to promptly notify the Shareholder Representative of such claim shall not limit Parent’s right to indemnification under this Article VII unless such failure resulted in the notice being delivered after the expiration of the relevant survival period specified in Section 7.1 or unless such failure materially prejudices the Shareholder Representative). The Shareholder Representative shall be entitled, on behalf of an Indemnified Personthe Indemnifying Parties, at their expense, to participate in, but not to determine or conduct the Purchaser defense of any such claim. Such participation shall include the right to consult with Parent regarding the selection of outside legal counsel and the budget to be used by such counsel, but the Shareholder Representative shall have no ability to determine, or right to consent to, Parent’s determinations. Parent shall have the right in its sole discretion to conduct the defense of of, and to settle or resolve settle, any such claim (and the costs and expenses incurred by the Purchaser in connection with such defenseclaim; provided, settlement or resolution (including reasonable attorneys’ feeshowever, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the SellerShareholder Representative, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no any settlement or resolution of any such claim Third Party Claim with any third-third party claimant claimants shall (i) not be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such mattermatter or whether a breach has occurred and (ii) include a complete release of claims against the Indemnifying Parties by such third party (without limiting the rights to indemnification of Parent against the Indemnifying Parties). In the event that the Seller Shareholder Representative has consented to any such settlement or resolutionsettlement, the Seller Indemnifying Parties shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII Section 7.6(d) to the amount of any claim Third Party Claim by Parent against the Escrow Fund, or on behalf of any Indemnified Person against the Indemnifying Parties directly, as the case may be, with respect to such settlement or resolutionsettlement. Notwithstanding the foregoing, any Third Party Claim with respect to Taxes shall be governed by the provisions of Section 5.9.

Third Party Claims. In the event (a) With respect to any claims or demands by third parties, whenever Actuate shall have notice that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in such a claim or demand has been asserted or threatened against Actuate BV or Actuate which would or could constitute a basis for Indemnifiable Amounts hereunder, Actuate shall promptly send concurrent written notice of their claim to the Purchaser Shareholders' Agent and the Escrow Agent pursuant to the procedures set forth in Section 3.3 of this Agreement. In no case shall the Shareholders be liable under this Agreement or the Purchase Agreement with respect to any claim or demand by a third party unless the Shareholders' Agent is notified in writing by Actuate of such claim or on behalf of an Indemnified Person, the Purchaser demand promptly after Actuate shall have the right in its sole discretion to conduct the defense notice of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)demand. The Seller Shareholders' Agent shall then have the right to receive copies contest, negotiate or settle any such claim or demand through counsel of all pleadingsits own selection, notices reasonably satisfactory to Actuate, which claim or demand, and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and resulting legal fees, shall be entitledpaid from the Escrow Fund; provided, at its expense-------- however, to participate inthat the Shareholders' Agent shall not, but not to determine or conduct, any defense of without the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the prior written ------- consent of the SellerActuate, which consent shall not be unreasonably withheld, conditioned settle, compromise or delayed and which shall be deemed offer to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement settle or resolution of compromise any such claim with any third-party claimant shall be determinative or demand (i) out of an application of the existence Escrow Fund, (ii) in a manner which results in any liability or loss of Actuate BV or amount Actuate or (iii) on a basis which would or could result in the imposition of Indemnifiable Damages relating to such matteran order, judgment, injunction or decree which would or could restrict the future activity or conduct of Actuate BV or Actuate. In the event that (i) the Seller has consented Shareholders' Agent should fail to give written notice to Actuate BV or Actuate of the intention of the Shareholders' Agent to contest or settle any such claim or demand within fifteen (15) days after Actuate has notified the Shareholders' Agent that any such claim or demand has been asserted or threatened, or (ii) such notice is given but any such claim or demand is not promptly settled or promptly and diligently contested by the Shareholders' Agent, Actuate shall notify the Escrow Agent of the Shareholders' Agent's failure to act or to promptly settle or contest such claim and shall have the right upon fifteen (15) days prior written notice to the Shareholders' Agent to satisfy and discharge the same by payment from the Escrow Fund, compromise or otherwise, subject to the provisions of Sections 3.3 and 3.4 below; provided, -------- however, that the Actuate may not effect the settlement or resolutiondischarge of any such ------- claim without the consent of the Shareholders' Agent, the Seller which consent shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII be unreasonably withheld. As an exception to the amount of above procedures, Actuate may also, if it so elects and entirely within its own discretion, defend any such claim by or on behalf of any Indemnified Person demand in the event Actuate reasonably concludes that the potential exposure to Actuate with respect to such settlement third party claim exceeds or resolutionmay exceed the remaining balance of Escrow Fund at such time or reasonably concludes that such third party claim may materially and adversely affect Actuate or another affiliate of Actuate other than as a result of money damages or other money payments, in which event Actuate must follow the procedures of Section 3.3 below with respect to any claims for Indemnifiable Amounts.

Third Party Claims. In the event that the Purchaser Parent becomes aware of a ------------------ third-party claim which the Purchaser that Parent reasonably believes may result in a claim demand against the Purchaser by Escrow Fund or for other indemnification pursuant to this Article VII, Parent will notify the Shareholder ----------- Representative of such claim, and the Shareholder Representative will be entitled on behalf of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledIndemnifying Securityholders, at its expense, to participate in, but not to determine or conduct, any the defense of the third-party claim or settlement negotiations with respect to the third-party such claim. HoweverParent will have the right in its sole discretion to conduct the defense of, and to settle, any such claim provided that Parent will in good faith endeavor to allow the Shareholder Representative to participate in any settlement negotiations, subject to confidentiality concerns; provided, however, that except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the PurchaserShareholder Representative, no settlement or resolution of any such claim with any third-party claimant claimants, and no judgment in respect of any such claim which Parent shall fail to defend, will be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such matter. In the event that the Seller Shareholder Representative has consented to any such settlement or resolutionsettlement, the Seller shall not Indemnifying Securityholders (including the Principal Shareholders) will have any no power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by Parent ----------- against the Escrow Fund or on behalf of any Indemnified Person against the Indemnifying Securityholders directly, as the case may be, with respect to such settlement. Notwithstanding the foregoing, this Section 7.3(i) shall be inapplicable with respect to any Dissenting -------------- Shareholder Payment or Overtime Payment, and no settlement of any such claim with respect to any Dissenting Shareholder Payment or resolutionOvertime Payment will be determinative of the amount of Losses relating to such matter.

Third Party Claims. In the event that the Purchaser Acquirer becomes aware of a thirdclaim by a third party (a “Third-party claim which the Purchaser Party Claim”) that Acquirer in good faith believes may result in a claim against the Purchaser for Indemnifiable Damages by or on behalf of an Indemnified Person, the Purchaser Acquirer shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim Third-Party Claim (and the costs and expenses incurred by the Purchaser Acquirer in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek Acquirer shall be entitled to receive indemnification pursuant to a claim made hereunder, and such costs and expenses shall constitute Indemnifiable Damages subject to indemnification under Section 9.2 regardless of whether it is ultimately determined that such Third-Party Claim arose out of, resulted from or was in connection with a matter subject to indemnity in accordance with Section 9.2). The Seller Sellers shall have the right to have their own counsel, at their sole expense, to consult with Acquirer’s counsel regarding the defense of a Third Party Claim or settlement with respect to such Third Part Claim, and to receive copies of all pleadings, notices and communications with respect to the thirdsuch Third-party claim Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledPerson, at its expensesubject to execution by the Sellers of Acquirer’s (and, to participate inif required, but not to determine or conduct, any defense of the thirdsuch third party’s) standard non-party claim or settlement negotiations with respect disclosure agreement to the third-party claimextent that such materials contain confidential or propriety information. However, except Acquirer shall have the right in its sole discretion to determine and conduct the defense of any Third-Party Claim and the settlement, adjustment or compromise of such Third-Party Claim. Unless otherwise consented to in writing in advance by Acquirer in its sole discretion, the Sellers and its Affiliates may not participate in any Third-Party Claim or any action related to such Third-Party Claim (including any discussions or negotiations in connection with the consent settlement, adjustment or compromise thereof). In the event that the Sellers have consented to the amount of the Seller, any settlement or resolution by Acquirer of any such claim (which consent shall not be unreasonably withheld, conditioned or delayed and which consent shall be deemed to have been given unless the Seller Sellers shall have objected within thirty twenty (3020) days after a written request for such therefor by Acquirer), or if the Sellers shall have been determined to have unreasonably withheld, conditioned or delayed its consent by to the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller Sellers shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII IX to the amount of any claim by or on behalf of any Indemnified Person against the Escrow Fund for indemnity with respect to such settlement or resolution.

Third Party Claims. In If a claim by a third party is made against Buyer and if Buyer intends to seek indemnity with respect thereto under this Article, Buyer shall promptly notify the event Indemnitors in writing of such claims setting forth such claims in reasonable detail. The Indemnitors may at any time, after admitting in writing their indemnification liability hereunder undertake, through counsel of their own choosing and at their own expense, the settlement or defense thereof, and such Indemnitee shall cooperate with the Indemnitors in connection therewith, provided, however, that Buyer may participate in such settlement or defense through counsel chosen by it, provided that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs fees and expenses incurred by the Purchaser of such counsel in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) event shall be included borne by Buyer. Buyer shall not pay or settle any claim as to which an Indemnitor has admitted in writing its indemnification liability hereunder and which such Indemnitor is contesting, unless such Indemnitee waives its right to indemnification therefor from the Indemnifiable Damages for which Indemnitors hereunder. Notwithstanding the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller foregoing, Buyer shall have the right to receive copies of all pleadingspay or settle any such claim, notices and communications with respect provided that in such event it shall waive any right to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent indemnity therefor by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of Indemnitors. If the existence of or amount of Indemnifiable Damages relating to such matter. In the event Indemnitors do not notify Buyer that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person Indemnitors admit their indemnification liability hereunder with respect to such settlement claim and elect to undertake the defense thereof, such Indemnitee shall have the right to contest and, after ten day's prior written notice to the Indemnitors, during which time the Indemnitors may admit liability and assume defense thereof, settle or resolutioncompromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement.

Third Party Claims. In the event that Should any Claim be made or suit or proceeding be instituted against any Purchaser Indemnitee, which, if prosecuted successfully, would be a matter for which such Purchaser Indemnitee is entitled to indemnification pursuant to Section 7.2 (a “Purchaser Third Party Claim”), Purchaser shall notify Seller within 20 days after Purchaser’s receipt of notification of the Purchaser becomes aware Third Party Claim, including a description of a third-party claim which the factual basis of the Purchaser believes may result in a claim against Third Party Claim and shall indicate the amount of the Damages. Thereafter, Purchaser shall promptly deliver to Seller copies of all notices and documents (including court papers) received by Purchaser relating to the Purchaser by or on behalf of an Indemnified Person, the Purchaser Third Party Claim. Seller shall have the right be entitled to participate in its sole discretion to conduct the defense of the Purchaser Third Party Claim and, if it so chooses, to assume the defense thereof at its own expense with counsel selected by Seller and reasonably acceptable to settle or resolve any Purchaser, if Seller gives written notice to Purchaser of its election to assume the defense of such Purchaser Third Party Claim within 10 days after Seller receives notice of such claim from Purchaser; provided, however, that Seller shall not be entitled to assume the defense of any Claim related to, either directly or indirectly, (and i) the costs and expenses incurred Program Technology or any intellectual property acquired by the Purchaser in connection with such defensethis Agreement, settlement (ii) criminal liability, (iii) in which equitable relief is sought against a Purchaser Indemnitee or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costsiv) shall be included in the Indemnifiable Damages for with respect to which the potential Damages could be reasonably expected to exceed the Indemnification Cap. If Seller assumes the defense of a Purchaser Third Party Claim, Seller may seek indemnification pursuant not consent to a claim made hereunder). The Seller shall have the right to receive copies entry of all pleadings, notices and communications any judgment or enter into any settlement with respect to the third-party claim Purchaser Third Party Claim without the prior written consent of the Purchaser Indemnitee (not to be unreasonably withheld or delayed) if (i) such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Purchaser Indemnitee of a full release from all liability in respect to such Purchaser Third Party Claim, (ii) such judgment or settlement would result in the finding or admission of any violation of Law by Purchaser or the rights of any person, (iii) the sole relief provided is anything other than monetary damages or (iv) as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Purchaser Indemnitee. Purchaser will cooperate, at the expense of Seller, as Seller may reasonably request in investigating, defending and, subject to the extent terms set forth above, settling such Purchaser Third Party Claim. If Seller elects not to defend a Purchaser Third Party Claim, is not permitted to defend such Purchaser Third Party Claim or fails to notify Purchaser of its election as herein provided, Purchaser may pay, compromise, settle or defend such Purchaser Third Party Claim at the sole cost and expense of Seller if Seller is determined to be liable to Purchaser hereunder, provided, however, that receipt of no such documents does payment in compromise or settlement of, or other compromise or settlement of, may be effected by Purchaser without the Seller’s consent (which shall not affect be unreasonably withheld or delayed). In any privilege relating to any Indemnified Person and event, Seller shall be entitled, at its expense, to participate in, but not to determine or conduct, in any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except such Purchaser Third Party Claim with the consent of the SellerPurchaser, which consent shall not be unreasonably withheld. Should any Claim be made or suit or proceeding be instituted against any Seller Indemnitee, conditioned or delayed and which, if prosecuted successfully, would be a matter for which such Seller Indemnitee is entitled to indemnification pursuant to Section 7.3 (a “Seller Third Party Claim”), Seller shall be deemed to have been given unless notify Purchaser within 20 days after Seller’s receipt of notification of the Seller shall have objected within thirty (30) days after Third Party Claim, including a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative description of the existence factual basis of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller Third Party Claim and shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to indicate the amount of any the Damages. Thereafter, Seller shall promptly deliver to Purchaser copies of all notices and documents (including court papers) received by Seller relating to the Seller Third Party Claim. Purchaser shall be entitled to participate in the defense of the Seller Third Party Claim and, if it so chooses, to assume the defense thereof at its own expense with counsel selected by Purchaser and reasonably acceptable to Seller, if Purchaser gives written notice to Seller of its election to assume the defense of such Seller Third Party Claim within 10 days after Purchaser receives notice of such claim by or on behalf from Seller; provided, however, that Purchaser shall not be entitled to assume the defense of any Indemnified Person Claim related to, either directly or indirectly, (i) criminal liability, (ii) in which equitable relief is sought against a Seller Indemnitee or (iii) with respect to which the potential Damages could be reasonably expected to exceed the Indemnification Cap. If Purchaser assumes the defense of a Seller Third Party Claim, Purchaser may not consent to the entry of any judgment or enter into any settlement with respect to the Seller Third Party Claim without the prior written consent of the Seller Indemnitee (not to be unreasonably withheld or delayed) if (i) such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or resolutionplaintiff to each Seller Indemnitee of a full release from all liability in respect to such Seller Third Party Claim, (ii) such judgment or settlement would result in the finding or admission of any violation of Law by Seller or the rights of any person, (iii) the sole relief provided is anything other than monetary damages or (iv) as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Seller Indemnitee. Seller will cooperate, at the expense of Purchaser, as Purchaser may reasonably request in investigating, defending and, subject to the terms set forth above, settling such Seller Third Party Claim. If Purchaser elects not to defend a Seller Third Party Claim, is not permitted to defend such Seller Third Party Claim or fails to notify Seller of its election as herein provided, Seller may pay, compromise, settle or defend such Seller Third Party Claim at the sole cost and expense of Purchaser if Purchaser is determined to be liable to Seller or Seller Indemnitee hereunder, provided, however, that no such payment in compromise or settlement of, or other compromise or settlement of, may be effected by Seller without the Purchaser’s consent (which shall not be unreasonably withheld or delayed). In any event, Purchaser shall be entitled, at its expense, to participate in any defense of such Seller Third Party Claim with the consent of Seller, which shall not be unreasonably withheld.

Third Party Claims. In the event that the If Purchaser becomes aware receives written notice of a third-party claim which the that Purchaser reasonably believes may result in a claim against the Purchaser Liability Claim by or on behalf of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (notify Seller and the costs and expenses incurred by Founders (or the Purchaser in connection with applicable Indemnitor) of such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that promptly upon Purchaser’s receipt of such documents does not affect any privilege relating to any Indemnified Person third-party notice, and shall be entitled, at its expense, provide Seller and Founders (or the applicable Indemnitor) the opportunity to participate at his own cost in, but and except for any claim connected to an alleged breach of any Fundamental Representations and/or Tax Liability, Seller and Founders may not to determine control or conduct, any defense of such claim. Except for any claim connected to an alleged breach of any German Pre-Closing Tax Liability, the third-party claim or settlement negotiations with respect Seller’s and/or the Founders’ participation will be subject to Purchaser’s right to control such defense. Purchaser will have the right to settle any such claim, but if Seller of the Founders do not consent in writing to the third-party claim. Howeversettlement, except with the consent settlement will not be determinative of the Selleramount of Losses relating to such matter or whether such Losses are indemnifiable Losses under this Article 6. For purposes of clarification, in case of any claim related to, or in connection with, an alleged breach of any German Pre-Closing Tax Liability, Seller and Founders shall be entitled to solely direct and control or conduct any defense of such claim, and Purchaser agrees to reasonably assist and cooperate with Seller and Founders in such case, on behalf of and in the interest of Company (“Prozesstandschaft”) Seller and/or Founders shall receive any and all proxy statements required therefore. If Seller consents in writing to the settlement, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days 30 Business Days after receipt of a written request for such consent by the from Purchaser, no settlement or resolution of neither Seller nor any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not Indemnitor will have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount or validity of any claim by or on behalf of any Indemnified Person for indemnity with respect to such settlement or resolutionsettlement.

Third Party Claims. In the event that the Purchaser Acquirer becomes aware of a third-party claim which the Purchaser Acquirer believes may result in a claim against the Purchaser Escrow Amount by or on behalf of an Indemnified Person, the Purchaser Acquirer shall have the right in its sole discretion to conduct in good faith the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser Acquirer in connection with such defense, settlement or resolution (resolution, including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)Damages. The Seller Stockholders’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expensethe expense of the Indemnifying Holders, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the PurchaserStockholders’ Agent, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter, provided, that, in the case of a claim that is reasonably expected to exceed the amount of the then available Escrow Fund, the consent of the Stockholders’ Agent shall not be unreasonably withheld, conditioned or delayed (and which consent in all cases shall be deemed to have been given unless the Stockholders’ Agent shall have objected within fifteen (15) days after a written request for such consent by Acquirer). In the event that the Seller Stockholders’ Agent has consented to any such settlement or resolution, neither the Seller Stockholders’ Agent nor the Indemnifying Holders shall not have any power or authority to object under Section 7.4 8.6 or any other provision of this Article VII VIII to the amount so consented to with respect to such settlement or resolution of any such claim by or on behalf of any Indemnified Person against the Escrow Amount for indemnity with respect to such settlement or resolution.

Third Party Claims. 3.1 Where the Purchaser and/or Holdings and/or HHL and/or any of the Subsidiaries is/are at any time entitled to recover from some other person (including any insurer) any sum in respect of any matter giving rise to a Claim, Indemnity Claim or an Environmental Claim the Purchaser shall and shall procure that Holdings and/or HHL or any of the Subsidiaries shall take such reasonable steps to enforce such recovery (and in the case of recovery against any insurer, to pursue such claim as a reasonable and prudent insured who is not afforded the benefit of rights of indemnity such as those afforded under this agreement) prior to taking any action against the Warrantors (other than notifying the Warrantors of the Claim, Indemnity or Environmental Claim), but without affecting any action which the Purchaser may wish to bring against the Warrantors provided that in respect of an Environmental Claim this paragraph 3.1 shall only apply in respect of recovery against the Environmental Insurance Policy. In respect of such action that may be taken against third parties (other than under the Environmental Insurance Policy) in relation to the subject matter of an Environmental Claim the Purchaser agrees, upon satisfaction of the Environmental Claims, to assign and to procure the assignment by any member of the Xxxx Group of its and their rights to claim against such third party to the Warrantors and shall otherwise cooperate and procure the cooperation of any member of the Xxxx Group with the Warrantors insofar as they reasonably request subject to satisfactory indemnification for its or their costs and expenses in doing so. Subject to paragraph 1.1, the Warrantors shall indemnify and keep indemnified the Purchaser and the relevant members of the Xxxx Group to the Purchaser’s reasonable satisfaction, against all costs, charges, taxation and expenses which may be suffered or incurred by the Purchaser or relevant member of the Xxxx Group in relation to the performance of their obligations under this paragraph 3.1. In the event that the Purchaser becomes aware or Holdings or HHL or any of a third-party claim which the Purchaser believes may result in a claim against Subsidiaries shall recover any amount from such other person the Purchaser amount of the Claim, Indemnity Claim or Environmental Claim shall be reduced by or on behalf of an Indemnified Personthe amount recovered (including any repayment supplement) less all costs, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs charges and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court Holdings or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect HHL or any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for Subsidiaries in recovering that sum from such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionperson.

Third Party Claims. In the event that Parent or the Purchaser becomes aware Surviving Corporation receives written notice of a third-party claim which the Purchaser believes (a "Third Party Claim") that Parent reasonably expects may result in a claim demand against the Purchaser by or on behalf of an Indemnified PersonEscrow Fund, Parent shall provide the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection Shareholder Agent with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)reasonably prompt written notice thereof. The Seller Shareholder Agent, as representative for the shareholders of the Company, shall have the right to receive copies participate in or, by giving written notice to Parent, to assume the defense of all pleadingsany Third Party Claim at the expense of the Escrow Fund and by counsel selected by the Shareholder Agent (which counsel must be reasonably satisfactory to Parent), notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person Parent will cooperate in good faith (and shall be entitled, at its expense, permitted to participate inat Parent's expense) in such defense; provided, but however, that the Shareholder Agent shall not be entitled to determine or conduct, any assume control of the defense of any Third Party Claim that (i) could reasonably be expected to have any material impact on the third-party claim ongoing operations or settlement negotiations with respect goodwill of the Surviving Corporation or Parent or (ii) could reasonably be expected to result in Losses in excess of the third-party claimEscrow Fund. However, except with Parent shall not settle any Third Party Claim without the consent of the SellerShareholder Agent, which consent shall will not be unreasonably conditioned, delayed, or withheld. The Shareholder Agent shall not settle any Third Party Claim without the consent of Parent, conditioned which consent will not be unreasonably conditioned, delayed, or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matterwithheld. In the event that the Seller Shareholder Agent has consented to any such settlement or resolutionsettlement, the Seller Shareholder Agent shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII IX to the amount of any claim by or on behalf of any Indemnified Person Parent against the Escrow Fund with respect to the amount of Losses incurred by Parent in such settlement or resolutionas consented to by the Shareholder Agent.

Third Party Claims. In the event that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in a claim demand against the Indemnification Holdback, Purchaser may initially assume the defense of such third-party claim. Such defense shall be conducted by counsel chosen by Purchaser reasonably acceptable to Parent and Seller and at Purchaser's expense, provided that other than in connection with third party claims that relate in any way to the enforceability or on behalf validity of an Indemnified Personany of the Patents included in the Assets, if the claimed total amount of damages or potential amount of damages (as reasonably determined by Purchaser shall have the right in its sole discretion discretion) is less than the Holdback Amount, Parent and Seller shall be entitled, at their expense, to conduct assume the defense of and to settle or resolve any such claim (with counsel chosen by Parent and the costs and expenses incurred by the at Parent's sole expense, provided that Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to monitor or participate in, but not to determine or conduct, any in the defense. If Purchaser has assumed the defense of the third-party such third‑party claim, Purchaser shall not be entitled to settle any such claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the without Parent's and Seller's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless Purchaser has assumed the Seller shall have objected within thirty (30) days after a written request for defense of such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant claim and as part of such settlement Parent and Seller are unconditionally released from all liability with respect to such third party claim. If Parent or Seller has assumed the defense of such claim, neither Parent nor Seller shall be determinative of the existence of or amount of Indemnifiable Damages relating entitled to settle any claim without Purchaser's prior written consent, which shall not be unreasonably withheld, unless Purchaser is unconditionally released from all liability with respect to such matterthird party claim. In the event that the Parent or Seller has consented to any such settlement or resolutionsettlement, the Parent and Seller shall not have any no power or authority to object under Section 7.4 Article VIII or any other provision of this Article VII Section 8.6 to the amount of any claim by or on behalf of any Indemnified Person Purchaser for indemnity with respect to such settlement or resolutionsettlement.

Third Party Claims. In the event that the a Purchaser Indemnified Person becomes aware of a third-party claim which the Purchaser believes may could result in a Damages for which it or any other Purchaser Indemnified Person may be entitled to indemnification hereunder, such Purchaser Indemnified Person shall promptly and without delay notify Seller Representative of such third-party claim, and Sellers shall be entitled, at their own expense, to participate in any defense of such claim; provided, however, that no delay or failure on the part of Parent or Purchaser in notifying Seller Representative shall relieve Sellers from any obligation hereunder unless Sellers are thereby prejudiced (and then solely to the extent of such prejudice). Purchaser Indemnified Persons shall be entitled to assume the defense of such third-party claim against the with counsel of its selection. Purchaser by or on behalf Indemnified Persons shall keep Seller Representative informed of an all material developments and events relating to such Claim, and shall deliver to Seller Representative, within five (5) Business Days after Purchaser Indemnified Person’s receipt thereof, the copies of all notices, correspondence and documents (including court papers) received by Purchaser relating to such Claim. Purchaser Indemnified Person shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defenseClaim; provided, settlement or resolution (including reasonable attorneys’ feeshowever, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which event that the Purchaser may seek indemnification pursuant Seller Representative has not consented to a claim made hereunder). The any such settlement in writing prior to such settlement, Seller Representative shall have retain the right to receive copies object under this Section 9 to the amount of all pleadings, notices and communications any Claim by Purchaser Indemnified Person for indemnity with respect to such settlement, including the reasonableness of the amount of such settlement; provided further, however, that in the event that Seller Representative has consented in writing to any settlement of any third-party claim to the extent that receipt of such documents does not affect which any privilege relating to any Purchaser Indemnified Person and shall be entitledis entitled to indemnification under this Section 9, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Representative shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII Section 9 to the amount of any claim Claim by Parent or on behalf of any Indemnified Person Purchaser for indemnity with respect to such settlement or resolutionsettlement.

Third Party Claims. In Section 8.5.1 By written notice within fifteen (15) days following the event that the Purchaser becomes aware delivery of a third-Claim Notice with respect to a third party claim which the Purchaser believes may result in (a claim against the Purchaser by or on behalf of an Indemnified Person“Third Party Claim”), the Purchaser shall have Stockholders’ Representative may, upon written acknowledgment without qualification of the right in its sole discretion to conduct the defense of and Indemnified Person to settle or resolve any such claim (and the costs and expenses be indemnified for Damages incurred by the Purchaser in connection with such defenseThird Party Claim, settlement or resolution be entitled to defend the Third Party Claim through counsel of the Stockholders’ Representative’s choice (including reasonable attorneys’ fees, other professionals’ and experts’ reasonably acceptable to the Indemnified Person) at the expense of the Company Stockholders to represent the Indemnified Person in connection with such Third Party Claim (in which case the fees and court or arbitration costs) expenses of any separate counsel retained by any Indemnified Person shall not be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunderDamages). The Seller Stockholders’ Representative shall not consent to the entry of any judgment or enter into any settlement without the consent of the Indemnified Person, such consent not to be unreasonably withheld. The Indemnified Person shall have the right to receive copies of all pleadings, notices and communications with respect to participate at its own expense in the third-party claim to the extent that receipt defense of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate inasserted liability, but shall not be entitled to determine settle or conduct, any defense of compromise such asserted liability without the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the prior written consent of the SellerStockholders’ Representative, which such consent shall not to be unreasonably withheld. Notwithstanding the foregoing, conditioned or delayed if the Indemnified Person reasonably determines there is a conflict of interest in connection with the Stockholders’ Representative’s defense of a Third Party Claim, the Indemnified Person (and which shall be deemed to have been given unless not the Seller Stockholders’ Representative) shall have objected within thirty (30) days after a written request for the right to defend such consent claim and to be indemnified by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Company Stockholders for its Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionincurred in connection therewith.

Third Party Claims. In Whenever Buyer shall learn after the event date hereof of a claim that, if allowed (whether voluntarily or by judicial or quasi-judicial tribunal or agency), would constitute a breach of, or give rise to an obligation of indemnification under, any one or more of the warranties, representations, covenants or agreements of the Company or any of the Shareholders as set forth in the Stock Purchase Agreement, before paying the same or agreeing thereto, Buyer shall promptly notify the Shareholders' Representative identified on the signature page hereof (the "Shareholders' Representative") in writing of all such material facts within Buyer's knowledge with respect to such claim and the amount thereof. If, prior to the expiration of ten (10) business days from the receipt of such notice, the Shareholders' Representative shall request, in writing, that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result Shareholders' wish to participate in a claim against the Purchaser by or on behalf of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of such claim, the Shareholders' shall be permitted to so participate through one counsel of its choosing and at their sole expense, provided that, Buyer under all circumstances shall retain full control of the defense of such claim. Counsel for Buyer shall be instructed to periodically report in writing to the Shareholder Representative the status of such defense. The Shareholders shall cooperate with Buyer in such defense and make available to Buyer all such records, materials and other information in their possession or under their reasonable control relating thereto as is reasonably required by Buyer. Buyer shall not pay, settle or resolve compromise any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-third party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with without the consent of the SellerShareholder Representative, which consent shall not be unreasonably withheld; provided that, conditioned Buyer shall not be required to refrain from paying any claim which has matured by a court judgment or delayed decree, unless an appeal is duly taken therefrom and which execution thereof has been stayed, nor shall Buyer be required to refrain from paying any claim where the delay in paying or settling such claim, in the reasonable judgment of Buyer, would result in the foreclosure of a lien upon any of the property or assets then held by Buyer or any of its subsidiaries (including the Company) or where any delay in payment would cause Buyer or any of its subsidiaries a material economic loss; provided further that, Buyer shall not be required to notify the Shareholders' Representative prior to paying, settling or compromising any claim of less than $5,000. The failure to provide notice as provided in this paragraph shall not excuse the Shareholders from their continuing obligations hereunder; however, the claim shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent reduced by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII damages to the amount of any claim by Shareholders resulting from Buyer's delay or on behalf of any Indemnified Person with respect failure to such settlement or resolutionprovide notice as provided in this paragraph.

Third Party Claims. In Purchaser shall give prompt written notice to Seller of any demand for indemnification under this Section 5.1, stating in reasonable detail the event that the Purchaser becomes aware nature thereof. If any such demand arises out of a claim made against Purchaser by any Person not party to this Agreement or affiliated with a party to this Agreement, such notice shall also state whether Purchaser (1) has made payment in full of the third-party claim, (2) has compromised and made payment of the compromised third-party claim, or (3) disputes the third-party claim which the and intends to defend against it in good faith. If Purchaser believes may result in elects to defend against such a claim against the Purchaser by or on behalf of an Indemnified Personclaim, the Purchaser Seller shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the cooperate with Purchaser in connection with such defense, settlement shall make available to Purchaser all records and other materials in its possession or resolution (including reasonable attorneys’ feescontrol and reasonably required by Purchaser in such defense, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of participate in such defense, provided that Purchaser shall at all pleadings, notices and communications with respect times control such defense. If Pxxxxxxxx does not intend to defend against the third-party claim to the extent that receipt and has not made payment in full of such documents does not affect any privilege relating to any Indemnified Person claim or compromised and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense duly made payment of the third-party compromised claim, then within 15 days after Purchaser’s notice is given, the Indemnifying Parties shall either (i) make payment in full of the claim, (ii) compromise and make payment of the compromised claim, or (iii) notify Purchaser that it disputes the claim or settlement negotiations with respect and intends to defend against it in good faith. If the Indemnifying Parties shall defend against the third-party claim, Purchaser and such other Indemnified Party(ies), as applicable, shall reasonably cooperate in such defense, shall make available to them all records and other materials in its possession or control reasonably required by them in such defense, and shall have the right to participate in such defense. HoweverFor clarity, except with the consent none of the foregoing shall impair the other limitations on Seller’s and Seller’s indemnification obligations set forth in this Article 5, which consent shall not be unreasonably withheld, conditioned or delayed including under Sections 5.1(c) and which (d). Any defense assumed by the Indemnifying Party(ies) shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for conducted at such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionIndemnify Party(ies)’ sole cost and Expense.

Third Party Claims. In the event that If the Purchaser becomes aware of a third-third party claim (a “Third Party Claim”) which the Purchaser reasonably believes may result in a claim against for indemnification by a Purchaser Indemnified Party pursuant to this Article VIII, the Purchaser by shall notify the Stockholders promptly of such claim, and the Stockholders shall be entitled, at their expense, to participate in, but not to determine or on behalf of an Indemnified Personconduct, the defense of such Third Party Claim. If there is a Third Party Claim that, if adversely determined, would give rise to a right of recovery for Losses under the Agreement, then any amounts incurred by the Purchaser Indemnified Parties in defense or settlement of such Third Party Claim, regardless of the outcome of such claim, shall be deemed Losses under the Agreement. The Purchaser shall have the right in its sole discretion to conduct the defense of of, and to settle or resolve settle, any such claim (and the costs and expenses incurred by Stockholders shall not have a right of approval or consent with respect to any such Third Party Claim; provided, that except with the Purchaser in connection consent of the Stockholders (such consent not to be unreasonably withheld, conditioned or delayed), no settlement of any such Third Party Claim with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) third party claimants shall be included determinative of the amount of Losses relating to such matter or otherwise admissible in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant any proceeding or used in any way to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications resolve any dispute with respect to the third-amount of Losses. If the Stockholders becomes aware of a third party claim (a “Company Third Party Claim”) which they reasonably believe may result in a claim for indemnification by the Stockholders pursuant to this Article VIII, the extent that receipt Stockholders shall notify the Purchaser promptly of such documents does not affect any privilege relating to any Indemnified Person claim, and the Stockholders shall be entitled, at its his expense, to participate in, but not to determine or conduct, any the defense of such Company Third Party Claim. The Purchasers shall have the third-party right in its sole discretion to conduct the defense of, and to settle, any such claim and the Stockholders shall not have a right of approval or settlement negotiations consent with respect to the third-party claim. Howeverany such Company Third Party Claim; provided, that except with the consent of the Seller, which Stockholders (such consent shall not to be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaserdelayed), no settlement or resolution of any such claim Company Third Party Claim with any third-third party claimant claimants shall be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such matter. In the event that the Seller has consented matter or otherwise admissible in any proceeding or used in any way to resolve any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII dispute with respect to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionLosses.

Third Party Claims. In the event that If the Purchaser becomes aware of a third-third party claim which (a “Third Party Claim”) that the Purchaser reasonably believes may result in a demand for indemnification pursuant to this Section 9, the Purchaser shall notify the Seller or, if the Seller no longer exists, the representative appointed pursuant to Section 7.12, in writing of such claim describing in reasonable detail the facts giving rise to the claim for indemnification hereunder and shall include (if then known) the amount or method of computation of the amount of such claim, and a reference to the provision of this Agreement upon which such claim is based. If the Third Party Claim may result in a claim against the Purchaser by Seller or on behalf of an Indemnified Personthe Key Shareholders, the Purchaser shall have Seller or the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and Key Shareholders shall be entitled, at its expense, to participate in, but not to determine or conduct, any the defense of such Third Party Claim; provided, however, that the thirdSeller and the Key Shareholders agree and consent, as a condition of such entitlement of participation, that the Purchaser’s legal counsel in the Third Party Claim shall not be precluded from representing the Purchaser as against the Seller or Key Shareholders if the Seller or Key Shareholders disputes the fact or amount of Purchaser’s claim of a Loss related to such matter. The Purchaser shall have the right in its sole discretion to conduct the defense of, and to settle, any such claim (other than claims related to Excluded Liabilities or Pre-party claim or settlement negotiations with respect to the third-party claim. HoweverClosing Taxes, except which shall only be settled with the written consent of the SellerSeller or Key Shareholders, which consent shall as applicable, not to be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless delayed); provided, that, if any claim is settled without the consent of the Seller or Key Shareholders, as applicable, such settlement shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall not be determinative dispositive of the existence of an indemnifiable claim or the amount of Indemnifiable Damages relating to such matterLosses. In the event that If the Seller has or Key Shareholders have consented to any such settlement or resolutionsettlement, the Seller or Key Shareholders, as applicable, shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim Third Party Claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionthe Purchaser.

Third Party Claims. In the event of the assertion or commencement by any Person of any claim, suit, or legal proceeding (whether against the Company following any applicable Closing, against the Parent, the Asset Purchaser, the Surviving Corporation or any of their Affiliates or against any other Person) related to this Transaction with respect to which any Indemnified Person may be entitled to be held harmless, indemnified, compensated or reimbursed pursuant to this Article X, (i) the Asset Purchaser shall promptly notify the Shareholders after the Asset Purchaser receives notice of such claim, suit or legal proceeding, and (ii) the Asset Purchaser shall defend and indemnify the Shareholders from such claims unless it can be proven that the Purchaser becomes aware claim is a valid claim for a material breach of this Agreement or an inaccuracy of a third-party claim which representation or warranty included in Section 4.1, Section 4.3, Section 4.15, Section 4.16, Section 4.17, Section 4.18 or Subsections 10.2(a)(iii) and 10.2(a)(v), and then only if the Shareholders are given the opportunity to participate in the defense, including a reasonable opportunity to review and approve any settlement. If the Asset Purchaser believes so proceeds with the defense of any such claim, suit or legal proceeding and is entitled to be held harmless, indemnified, compensated or reimbursed pursuant to this Article X: (a) all reasonable expenses relating to the defense of such claim, suit or legal proceeding shall be deducted by the Surviving Corporation from the Installment Payments payable to the Shareholders; (b) the Shareholders shall make available to the Asset Purchaser any documents and materials reasonably requested by the Asset Purchaser that the Asset Purchaser determines in good faith may result in a claim against be necessary to the Purchaser by defense of such claim, suit or on behalf of an Indemnified Person, legal proceeding; and (c) the Asset Purchaser shall have the right in its sole discretion to conduct settle, adjust or compromise such claim, suit or legal proceeding, provided that the Shareholders shall have a reasonable opportunity to review and approve the settlement. Such third party claims are subject to the Deductible and the Cap, where applicable. If the third party claim is resolved through the courts, the Shareholders may withhold any payments until all rights of appeal are exhausted and the outcome is final. If the Asset Purchaser does not elect to proceed with the defense of and to settle or resolve any such claim claim, suit or legal proceeding, the Shareholders shall (and at the costs and expenses incurred by sole expense of the Purchaser in connection Shareholders) proceed with the defense of such defenseclaim, settlement suit or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications legal proceeding with respect counsel reasonably acceptable to the third-party claim to Asset Purchaser; provided, however, that the extent that receipt of Shareholders may not settle, adjust or compromise any such documents does not affect any privilege relating to any Indemnified Person and shall be entitledclaim, at its expense, to participate in, but not to determine suit or conduct, any defense of legal proceeding without the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the prior written consent of the Seller, Asset Purchaser (which consent shall not be unreasonably withheld, conditioned withheld or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutiondelayed).

Third Party Claims. In If the event that Buyer Indemnified Parties' request for indemnification arises from the Purchaser becomes aware claim of a third party, the written notice shall permit Sellers to assume control of the defense of any such claim, or any litigation resulting from such claim. Failure by Sellers to notify the Buyer Indemnified Parties of its election to defend a complaint by a third party within 5 days shall be a waiver by Sellers of its right to respond to such complaint and within 20 days after notice thereof shall be a waiver by Sellers of its right to assume control of the defense of such claim or action. If Sellers assume control of the defense of such claim or litigation resulting therefrom, Sellers shall take all reasonable steps necessary in the defense or settlement of such claim or litigation resulting therefrom and Sellers shall hold the Buyer Indemnified Parties, to the extent provided in this section 8, harmless from and against all Losses arising out of or resulting from any settlement approved by Sellers or any judgment in connection with such claim or litigation. Notwithstanding Sellers' assumption of the defense of such third-party claim which the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified Persondemand, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller Buyer Indemnified Parties shall have the right to receive copies of all pleadings, notices and communications with respect to participate in the third-party claim to the extent that receipt defense of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect demand at its own expense. Sellers shall not, in the defense of such claim or litigation, consent to the third-party claim. Howeverentry of any judgment or enter into any settlement, except in either case with the written consent of the SellerBuyer Indemnified Parties, which consent shall not be unreasonably withheld, conditioned or delayed . The Buyer Indemnified Parties shall furnish Sellers in reasonable detail all information such party may have with respect to any such third-party claim and shall make available to Sellers and their representatives all records and other similar materials which are reasonably required in the defense of such third-party claim and shall be deemed to have been given unless otherwise cooperate with and assist Sellers in the Seller shall have objected within thirty (30) days after a written request for defense of such consent by third-party claim. If Sellers do not assume control of the Purchaser, no settlement or resolution defense of any such claim with any third-party claimant shall be determinative of the existence of claim or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolutionlitigation resulting therefrom, the Seller Buyer Indemnified Parties may defend against such claim or litigation in such manner as it may reasonably deem appropriate, and Sellers shall not have indemnify the Buyer Indemnified Parties from any power or authority to object Loss indemnifiable under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionsection 8(a) incurred in connection therewith.

Third Party Claims. In The Purchaser shall, within three 3 Business Days, give notice to the event that Sellers of any claim, suit, action or proceeding brought or threatened by a third party (including the Affiliates of the Sellers and the Purchaser becomes aware other than the Company and the dAF-Consolidated Companies) including, for the avoidance of a third-party claim doubt, any audits or examinations by tax, environmental or other Governmental or Regulatory Authorities in respect of which the Purchaser believes may result in raise claims under Section 6.1 against any Seller hereunder (a claim against “Third Party Claim”). In each case of a Third Party Claim the Purchaser shall (i) make available to the Sellers a copy of the documents substantiating the Third Party Claim and of all documents relating to the Third Party Claim, (ii) ensure that Sellers be provided with all materials, information and assistance they deem relevant in relation to the Third Party Claim, (iii) be given reasonable opportunity to comment or discuss with the Purchaser, the Company and/or the relevant dAF-Consolidated Company any measures that are necessary or appropriate to take or omit in connection with a Third Party Claim, (iv) give the Sellers an opportunity to review and comment on reports of, and to participate in, relevant Tax and social security audits or other measures and receive without undue delay copies of all relevant orders (Bescheide) of any Governmental or Regulatory Authority, (v) fully cooperate with the Sellers, (vi) provide the Sellers and their advisors with reasonable access during normal business hours and permit the Sellers and their advisors to consult with the directors, employees, representatives and advisors of the Purchaser, the Company and relevant dAF-Consolidated Companies. Any admission of liability made by or on behalf of an Indemnified Personthe Purchaser, the Company or dAF-Consolidated Companies in relation to the Third Party Claim or any compromise or settlement, made without the prior written consent of the Sellers, shall not be binding on the Sellers as to the legal situation or the underlying facts. The failure of the Purchaser to comply with its obligations under this Section 6.3 shall have release the right in its sole discretion Sellers from their respective obligations under Section 6.1 above or any other liability to conduct the defense Purchaser for reason of the Third Party Claim, if and to settle or resolve the extent that the Purchaser’s failure to comply with the obligations under this Section 6.3 has actually prejudiced the Sellers in any material respect with respect to such claim (Third Party Claim. If a Breach occurred, any and the all costs and expenses incurred by the Purchaser Sellers in defending such Third Party Claim shall be borne by the Sellers. If a Breach did not occur, any and all costs and expenses incurred by the Sellers in connection with such defense, settlement or resolution the defense (including reasonable attorneys’ advisor’s fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent borne by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution.

Third Party Claims. In the event that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in an Indemnified Party has a claim hereunder that does not involve a claim being asserted against the Purchaser or sought to be collected by or on behalf of an Indemnified Persona third party, the Purchaser Indemnified Party shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to promptness send a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications Claim Notice with respect to the third-party such claim to the extent that receipt of such documents Stockholder Representative and the Escrow Agent. If the Stockholder Representative does not affect any privilege relating to any notify the Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected Party within thirty (30) calendar days after from the date of receipt of such Claim Notice that indemnifying party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the indemnifying party hereunder. In case the Stockholder Representative shall object in writing to any claim made in accordance with this Section 7.4(b), the Indemnified Party shall have fifteen (15) calendar days to respond in a written request statement to the objection of the Stockholder Representative. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the parties shall attempt in good faith for sixty (60) calendar days to agree upon the rights of the respective parties with respect to each of such consent claims. If the parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. If the parties do not so agree, the Escrow Agent shall refrain from disbursing any portion of the Escrow Fund until resolution of such dispute in the form of (i) a final written decision of an arbitrator or (ii) a final non-appealable order of a court of competent jurisdiction. The Indemnified Party's failure to give reasonably prompt notice to the indemnifying party of any actual, threatened or possible claim or demand which may give rise to a right of indemnification hereunder shall not relieve the indemnifying party of any liability which the indemnifying party may have to the Indemnified Party unless the failure to give such notice materially and adversely prejudiced the indemnifying party. Stockholder Representative. Upon the closing of the Merger, SK Energy & Chemical, Inc. shall be constituted and appointed as agent and attorney-in-fact (the "Stockholder Representative") for and on behalf of each of the Company Stockholders (including SK) to give and receive notices and communications, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims, and to take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing. Such agency may be changed (whether pursuant to vacancy, removal or resignation) by the Purchaser, no settlement or resolution vote of any such claim with any third-party claimant a majority of the Company Stockholders from time to time upon not less than thirty (30) calendar days prior written notice to Parent. No bond shall be determinative required of the existence Stockholder Representative, and the Stockholder Representative shall receive no compensation for its services, except for payment by the Company Stockholders of or amount expenses, including fees of Indemnifiable Damages relating to such mattercounsel, reasonably incurred by the Stockholder Representative in connection with the performance of its duties hereunder. In the event that this Agreement is adopted by the Seller has Company Stockholders pursuant to applicable law, then all Company Stockholders shall, without any further act of any Company Stockholder, be deemed to have consented to any such settlement or resolution, and approved (i) the Seller shall not have any power or authority use of the Escrow Shares as collateral to object secure the rights of Parent under Section 7.4 or any other provision of this Article VII to in the amount manner set forth herein and in the Escrow Agreement; (ii) the appointment of any claim by or the Stockholder Representative as the representative under this Agreement and the Escrow Agreement of the Company Stockholders and as the attorney-in-fact and agent for and on behalf of each such person or entity (other than holders of Dissenting Shares); and (iii) the indemnification of the Stockholder Representative by the Company Stockholders contemplated hereby and by the Escrow Agreement. The Stockholder Representative shall not be liable for any Indemnified Person act done or omitted hereunder as Stockholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Stockholders shall severally indemnify the Stockholder Representative and hold such agent harmless against any loss, liability or expense incurred without bad faith on the part of the Stockholder Representative and arising out of or in connection with respect the acceptance or administration of the Stockholder Representative's duties hereunder. A decision, act, consent or instruction of the Stockholder Representative shall constitute a decision of all Company Stockholders and shall be final, binding and conclusive upon each Company Stockholder, and Parent may rely upon any decision, act, consent or instruction of the Stockholder Representative taken in such manner as being the decision, act, consent or instruction of each and every Company Stockholder. Parent is hereby relieved from any liability to any person for any acts done by them in accordance with such settlement decision, act, consent or resolutioninstruction of the Stockholder Representative.

Third Party Claims. In the event that the Purchaser a Parent Indemnified Person becomes aware of a third-party claim which the Purchaser such party believes may result in a claim demand against the Purchaser by or Indemnity Portion of the Escrow Fund, Parent shall promptly notify the Stockholders’ Agent of such claim in writing (such notification including a description of the nature and the basis of such claim), and the Stockholders’ Agent, on behalf of an Indemnified Personthe Company Equityholders for whom shares of Parent Preferred Stock (or other such shares of Parent capital stock or other property) otherwise issuable to them are deposited in the Indemnity Portion of the Escrow Fund, the Purchaser shall have the right in its sole discretion be entitled to conduct assume the defense of and such claim. Failure by the Stockholders’ Agent to settle or resolve notify Parent of its election to defend any such claim (and within a reasonable time, but in no event more than ten days after notice thereof shall have been given to the costs and expenses incurred Stockholders’ Agent, shall be deemed a waiver by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneysStockholders’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the Agent of its right to receive copies of all pleadingsdefend such claim. If Stockholders’ Agent elects to defend such claim, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledParent may participate, at its expense, to participate in, but not to determine or conduct, any in the defense of such claim provided that the third-party claim or settlement negotiations with respect Stockholders’ Agent shall direct and control the defense of such claim. The Stockholders’ Agent shall not, in the defense of such claim, consent to the third-party claim. Howeverentry of any judgment or award, or enter into any settlement, except in either event with the prior written consent of Parent (which consent will not be unreasonably withheld). For any claims against which the SellerStockholders’ Agent has not assumed the defense, Parent shall have the right, subject to consent by the Stockholders’ Agent (which consent shall not be unreasonably withheld), conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of settle any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matterclaim. In the event that the Seller Stockholders’ Agent has consented to any such settlement or resolutionsettlement, the Seller Stockholders’ Agent shall not have any no power or authority to object under Section 7.4 9.6 or any other provision of this Article VII Section 9 to the amount of any claim by or on behalf of any the Parent Indemnified Person against the Escrow Fund for indemnity with respect to such settlement or resolutionsettlement.

Third Party Claims. In the event that the Purchaser Parent becomes aware of a third-party claim which the Purchaser Parent reasonably believes may result in a claim demand against the Purchaser by Escrow Fund or for other indemnification pursuant to this Article VIII, Parent shall notify the Stockholder Representative of such claim, and the Stockholder Representative shall be entitled on behalf of an Indemnified Personthe Company Stockholders, at its expense, to participate in (including receiving copies of all documents prepared or received by Parent in connection therewith), but not to determine or conduct, the Purchaser defense of such claim. Parent shall give the Stockholder Representative periodic updates regarding the progress of the claim and shall consult with the Stockholder Representative regarding the defense of the claim. If there is a third party claim that, if adversely determined would give rise to a right of recovery for Losses hereunder, then any amounts incurred or accrued by the Indemnified Parties in defense of such third-party claim (including reasonable counter-claims), regardless of the outcome of such claim, shall be deemed Losses hereunder. Parent shall have the right in its sole discretion to conduct the defense of of, and to settle or resolve settle, any such claim (and the costs and expenses incurred by the Purchaser in connection with such defenseclaim; provided, settlement or resolution (including reasonable attorneys’ feeshowever, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the PurchaserStockholder Representative, no settlement or resolution of any such claim with any third-party claimant claimants shall be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such matter. In the event that the Seller Stockholder Representative has consented to any such settlement or resolutionsettlement, the Seller Company Stockholders shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII VIII to the amount of any claim by or on behalf of any Indemnified Person Parent against the Escrow Fund with respect to such settlement. Notwithstanding the foregoing, the Stockholder Representative shall have the right on behalf of the Company Stockholders, in his sole discretion, to conduct the defense of, and to settle, any third-party claim relating solely to the federal income Tax returns of the Company for periods in which the Company filed Form 1120-S, provided that any settlement of such a claims shall be subject to the review and approval of Parent, which will not be unreasonably withheld, delayed or resolutionconditioned and provided further that such settlement amount, to extent such amount is paid by Parent or an Indemnified Party, shall be deemed Losses hereunder.

Third Party Claims. In the event that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in a claim against the Purchaser for indemnification pursuant to this ARTICLE 9 by or on behalf of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller Company Shareholder shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the SellerCompany Shareholder, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Company Shareholder shall have objected within thirty (30) 15 days after a written request for such consent by the Purchaser, no settlement or resolution by Purchaser of any such claim with any third-party claimant that gives rise to a claim by or on behalf of an Indemnified Person shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Company Shareholder has consented to any such settlement or resolution, the Seller Company Shareholder shall not have any power or authority to object under Section 7.4 9.5 or any other provision of this Article VII ARTICLE 9 to the amount of any claim by or on behalf of any Indemnified Person Persons for indemnity with respect to and in accordance with such consented settlement or resolution.

Third Party Claims. In the event that the Purchaser Parent becomes aware of a third-third party claim (a “Third Party Claim”) which Parent reasonably believes may result in a demand for indemnification pursuant to this ARTICLE VII, Parent shall notify the Purchaser believes Escrow Agent and the Stockholder Representative of such claim. If the Third Party Claim may result in a claim against the Purchaser by or Escrow Fund, the Stockholder Representative on behalf of an Indemnified Personthe Stockholders, shall be entitled, at its expense, to participate in and make recommendations with respect to, but not to determine or conduct, the Purchaser defense of such Third Party Claim; provided, however, that the Stockholders agree and consent, as a condition of such entitlement of participation, that Parent’s legal counsel in the Third Party Claim shall not be precluded from representing Parent as against the Stockholders in the event that the Stockholders dispute the fact or amount of the Parent’s claim of a Loss related to the Third-Party Claim. Parent shall have the right in its sole discretion to conduct the defense of of, and to settle or resolve settle, any such claim (and the costs and expenses incurred by the Purchaser in connection with such defenseclaim, settlement or resolution (including reasonable attorneys’ feesprovided, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent however that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the PurchaserStockholder Representative, no settlement or resolution of any such claim Third Party Claim with any third-third party claimant claimants shall be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such matter. In the event that the Seller Stockholder Representative has consented to any such settlement or resolutionsettlement, the Seller Stockholders shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any Third Party Claim by Parent. Notwithstanding anything in this Agreement to the contrary, if Parent does not notify the Stockholder Representative in its notice provided under the first sentence of this Section 7.4(e), or by separate notice within five (5) Business Days thereafter, that it has assumed the defense of the Third Party Claim, or notifies the Stockholder Representative that it has elected not to assume the defense of the Third Party Claim, the Stockholder Representative shall have the right to assume and conduct the defense of such claim by or on behalf at its expense; provided, however, that the Stockholder Representative shall not consent to the entry of any Indemnified Person judgment or enter into any settlement with respect to such claim unless such judgment or settlement requires solely the payment of money damages not in excess of the amount available in the Escrow Fund and such judgment or resolutionsettlement includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim. Notwithstanding anything in this Agreement to the contrary, this Section 7.4(e) shall not apply to any third party claim that is the subject of an Agreed-Upon Loss.

Third Party Claims. In (i) Upon receipt of written notice from the event Indemnitee of a Claim, the Indemnitor shall promptly pay the amount of the Claim, unless the Indemnitor shall dispute the Claim or the amount thereof, and the Indemnitor may provide counsel (such counsel subject to the reasonable approval of the Indemnitee) to defend the Indemnitee against the matter from which the Claim arose, at the Indemnitor's sole cost, risk and expense. If the Indemnitor assumes such defense, the Indemnitee shall cooperate in all reasonable respects, at the Indemnitor's sole cost, risk and expense, with the Indemnitor in the investigation, trial, defense and any appeal arising from the matter from which the Claim arose; provided, however, that the Purchaser becomes aware Indemnitee may (but shall not be obligated to) participate in any such investigation, trial, defense and any appeal arising in connection with the Claim at the sole cost of a third-party claim which the Purchaser believes may result in a claim against Indemnitee. After notice from the Purchaser by Indemnitor to the Indemnitee of the Indemnitor's election to assume the defense, compromise or on behalf settlement of an Indemnified Personsuch Claim, the Purchaser Indemnitor shall have not, as long as it diligently conducts such defense, be liable to the right in its sole discretion Indemnitee for any fees of other counsel or any other expenses with respect to conduct the defense of and to settle or resolve any such claim (and the costs and expenses Claim, in each case subsequently incurred by the Purchaser Indemnitee in connection with such the defense, compromise, or settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in of the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)Claim. The Seller Indemnitor shall have the right to receive copies elect to settle any Claim for monetary damages without the Indemnitee's consent, only if the settlement includes a complete release of all pleadings, notices and communications with respect to the third-party claim to Indemnitee. If the extent that receipt of such documents settlement does not affect any privilege relating include such a release, it will be subject to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the SellerIndemnitee, which consent shall not be unreasonably withheld. The Indemnitor may not admit any liability of the Indemnitee or waive any of the Indemnitee's rights without the Indemnitee's prior written consent, conditioned or delayed and which consent shall not be deemed to have been given unless unreasonably withheld. If the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution subject of any such claim with any third-party claimant shall be determinative of the existence of Claim results in a judgment or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolutionsettlement, the Seller Indemnitor shall not have any power promptly pay such judgment or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionsettlement.

Third Party Claims. In the event that the Purchaser Acquirer becomes aware of a thirdclaim by a third party (a “Third-party claim which the Purchaser Party Claim”) that Acquirer in good faith believes may result in a claim against the Purchaser for Indemnifiable Damages by or on behalf of an Indemnified Person, the Purchaser Acquirer shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)Third-Party Claim. The Seller Holders’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to the thirdsuch Third-party claim Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledPerson, at its expensesubject to execution by the Holders’ Agent of Acquirer’s (and, to participate inif required, but not to determine or conduct, any defense of the thirdsuch third party’s) standard non-party claim or settlement negotiations with respect disclosure agreement to the third-party claimextent that such materials contain confidential or propriety information. However, except Acquirer shall have the right in its sole discretion to determine and conduct the defense of any Third-Party Claim and the settlement, adjustment or compromise of such Third-Party Claim. Unless otherwise consented to in writing in advance by Acquirer in its sole discretion, the Holders’ Agent and its Affiliates may not participate in any Third-Party Claim or any action related to such Third-Party Claim (including any discussions or negotiations in connection with the consent settlement, adjustment or compromise thereof). In the event that the Holders’ Agent has consented to the amount of the Seller, any settlement or resolution by Acquirer of any such claim (which consent shall not be unreasonably withheld, conditioned or delayed and which consent shall be deemed to have been given unless the Seller Holders’ Agent shall have objected within thirty (30) 30 days after a written request for such therefor by Acquirer), or if the Holders’ Agent shall have been determined to have unreasonably withheld, conditioned or delayed its consent by to the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, neither the Seller shall not Holders’ Agent nor any Converting Securityholder shall, subject to the limitations set forth in this Article VIII, have any power or authority to object under Section 7.4 or any other provision of this Article VII VIII to the amount of any claim by or on behalf of any Indemnified Person against the Holdback Shares Fund for indemnity with respect to such settlement or resolution, it being understood that, without the consent of the Holders’ Agent (such consent not to be unreasonably withheld, conditioned or delayed), such settlement or resolution by Acquirer shall not be dispositive of the existence of an indemnifiable claim or the amount of Indemnifiable Damages.

Third Party Claims. In the event that the Purchaser Parent becomes aware of a thirdclaim by a Third Party (a “Third-party claim which the Purchaser Party Claim”) that Parent in good faith believes may result in a claim against the Purchaser for Damages by or on behalf of an Indemnified Person, the Purchaser Parent shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (Third-Party Claim and the costs and expenses incurred by the Purchaser Parent in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may Parent shall be entitled to seek indemnification pursuant to a claim made hereunder). The Seller Sellers shall have the right to receive copies of all pleadings, notices and communications with respect to the thirdsuch Third-party claim Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledPerson, at its expensesubject to execution by the Sellers of Parent’s (and, to participate inif required, but not to determine or conduct, any defense of the thirdsuch Third Party’s) standard non-party claim or settlement negotiations with respect disclosure agreement to the third-party claimextent that such materials contain confidential or propriety information. However, except Parent shall have the right in its sole discretion to determine and conduct the defense of any Third-Party Claim and the settlement, adjustment or compromise of such Third-Party Claim. Unless otherwise consented to in writing in advance by Parent in its sole discretion, the Sellers and their Affiliates may not participate in any Third-Party Claim or any action related to such Third-Party Claim (including any discussions or negotiations in connection with the consent settlement, adjustment or compromise thereof). In the event that the Sellers have consented to the amount of the Seller, any settlement or resolution by Parent of any such claim (which consent shall not be unreasonably withheld, conditioned or delayed and which consent shall be deemed to have been given unless the Seller Sellers shall have objected within thirty twenty (3020) days after a written request for such therefor by Parent), or if the Sellers shall have been determined to have unreasonably withheld, conditioned or delayed its consent by to the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller Sellers and Indemnifying Party (a) shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII IX to the amount of any claim by or on behalf of any Indemnified Person against the Escrow Fund for indemnity with respect to such settlement or resolution, (b) shall be deemed to have approved the related Claim Certificate and (iii) shall instruct the Escrow Agent to distribute to Parent an amount in cash from the Escrow Fund equal to the applicable Damages with respect to such Third-Party Claim.

Third Party Claims. In the event that the Purchaser becomes aware of a third-party claim which the Purchaser in good faith believes may result in a claim an Indemnification Claim against the Purchaser Escrow Fund by or on behalf of an Purchaser Indemnified PersonParty, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ ' fees, other professionals’ ' and experts’ ' fees and court or arbitration costs) shall be included in the Indemnifiable Damages constitute Losses for which the Purchaser may seek indemnification pursuant to a claim an Indemnification Claim made hereunder). The Seller Stockholder Representative shall have the right right, upon request, to periodically receive copies of all material pleadings, material notices and material communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Purchaser Indemnified Person Party and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, Stockholder Representative (which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Stockholder Representative shall have objected within thirty fifteen (3015) days after a written request for such consent by the Purchaser), no settlement or resolution by the Purchaser of any such claim with any third-party claimant that gives rise to an Indemnification Claim against the Escrow Fund by or on behalf of a Purchaser Indemnified Party shall be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such matter. In the event that the Seller Stockholder Representative has consented to any such settlement or resolution, neither the Seller Stockholder Representative nor any Series G Holder shall not have any power or authority to object under Section 7.4 9.2 or any other provision of this Article VII 9 to the amount of any claim Indemnification Claim by or on behalf of any Purchaser Indemnified Person Party against the Escrow Fund for indemnity with respect to such settlement or resolution.

Third Party Claims. In If Buyer receives notice of the event that the Purchaser becomes aware assertion or commencement of any action, suit, claim or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a thirdparty to this Agreement or a Representative of the foregoing (a “Third-party claim Party Claim”) against Buyer with respect to which the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified PersonSeller is obligated to provide indemnification under this Agreement, the Purchaser Buyer shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)give Seller prompt written notice thereof. The failure to give such prompt written notice shall not, however, relieve Seller of its indemnification obligations, except and only to the extent that Seller forfeits rights or defenses by reason of such failure. Such notice by Buyer shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by Buyer. Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not or by giving written notice to determine or conductBuyer, any to assume the defense of the thirdany Third-party claim or settlement negotiations with respect to the third-party claim. HoweverParty Claim at Seller’s expense and by Seller’s own counsel, except with the consent of the Seller, which consent and Buyer shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for cooperate in good faith in such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matterdefense. In the event that Seller assumes the Seller has consented defense of any Third-Party Claim, subject to Section 7.04(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such settlement or resolution, Third-Party Claim in the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or name and on behalf of Buyer. Buyer shall have the right, at its own cost and expense, to participate in the defense of any Indemnified Person Third-Party Claim with respect counsel selected by it subject to Seller’s right to control the defense thereof. If Seller elects not to compromise or defend such Third-Party Claim or fails to promptly notify Buyer in writing of its election to defend as provided in this Agreement, Buyer may, subject to Section 7.04(b), pay, compromise, defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such settlement or resolutionThird-Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 5.02) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.

Third Party Claims. In the event that the Purchaser becomes aware If Parent receives notice of a third-party claim which the Purchaser that Parent believes may result in a claim demand for monetary damages against the Purchaser Escrow Fund, Parent shall promptly notify the Securityholder Agent in writing of such claim (but the failure to promptly notify the Securityholder Agent shall not relieve the indemnifying party of its obligations hereunder except to the extent (and only to such extent) that the Securityholder Agent is materially prejudiced by or on behalf such failure to notify). The Securityholder Agent, as representative for the Company Stockholders, may, at his election and upon written notice to Parent, undertake control of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of such third-party claim with counsel of his choosing reasonably acceptable to Parent, in which case Parent may participate in such defense through its own counsel and to settle or resolve any at its own expense. Notwithstanding the foregoing, the Securityholder Agent may not undertake the defense of a third-party claim if (i) such claim involves Taxes, (and ii) such claim demands injunctive or other equitable relief, (iii) Parent reasonably determines that the costs and expenses incurred by claim is likely to exceed the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included then remaining amounts in the Indemnifiable Damages Escrow Fund, (iv) the Securityholder Agent or any Stockholder is also a party to such third-party claim or (v) Parent reasonably determines that it would be inappropriate for which a single counsel to represent all parties under applicable standards of legal ethics. If the Purchaser may seek indemnification pursuant Securityholder Agent declines to a undertake the defense of such claim made hereunder). The Seller by delivering written notice to Parent within fifteen (15) days after written notice of such claim has been delivered to the Securityholder Agent or fails to diligently defend such claim at any time, Parent shall have the right to receive copies undertake the defense of all pleadingssuch claim with counsel of its choosing and the fees and expenses of such counsel shall constitute Losses for purposes of this Article VII. If the Securityholder Agent elects to undertake the defense of a third-party claim, notices the Securityholder Agent shall be entitled to recover its reasonable attorneys fees and communications with respect expenses that relate to the such third-party claim from the Escrow Fund immediately prior to the extent expiration of the Escrow Period out of amounts that receipt of such documents does not affect would otherwise be distributed to the Company Stockholders pursuant to Section 7.2(c); provided, however, that any privilege relating and all Losses incurred by Parent, its officers, directors or affiliates (including the Surviving Corporation) that are recoverable against the Escrow Fund and any amounts necessary to any Indemnified Person and satisfy unresolved claims pursuant to this Article VII shall be entitled, at its expense, satisfied in full or reserved for before any attorneys fees and expenses of the Securityholder Agent may be paid from the Escrow Fund. If the Securityholder Agent elects to participate in, but not to determine or conduct, any undertake the defense of the a third-party claim or settlement negotiations claim, the Securityholder Agent shall advise Parent of material developments and otherwise keep Parent informed with respect to the such third-party claim. HoweverIf the Securityholder Agent has not undertaken the defense of a third-party claim, except then upon the Securityholder Agent’s request, Parent shall advise Securityholder Agent of material developments and otherwise keep Securityholder informed with respect to such third-party claim; provided however that Parent shall not be required to provide any confidential or non-public information. If the consent Securityholder Agent elects to undertake the defense of a third-party claim, the SellerSecurityholder Agent may not settle such third-party claim without Parent’s prior written consent, which consent shall not be unreasonably withheld. If the Securityholder Agent declines to undertake the defense of a third-party claim or fails to diligently defend such claim at any time, conditioned or delayed and which shall be deemed to have been given unless the Seller Parent shall have objected within thirty (30) days after a written request for the right in its reasonable discretion to settle any such claim; provided, however, that except with the consent by of the PurchaserSecurityholder Agent, no settlement or resolution of any such claim with any third-party claimant claimants shall be determinative of the amount, validity or existence of or amount of Indemnifiable Damages relating to such matterany claim against the Escrow Fund. In If the event that the Seller Securityholder Agent has consented to any such settlement or resolutionsettlement, the Seller Securityholder Agent shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person Parent against the Escrow Fund with respect to and in the amount of such settlement settlement. Parent and the Securityholder Agent shall cooperate with each other in all reasonable respects in connection with the defense of any third-party claim, including making available records relating to such claim and furnishing employees of Parent or resolutionthe Surviving Corporation as may be reasonably necessary for the preparation of the defense of any such third-party claim or for testimony as witness in any proceeding relating to such claim.

Third Party Claims. In the event that the Purchaser Acquiror becomes aware of a third-third- ------------------ party claim which the Purchaser Acquiror believes may result in a claim demand against the Purchaser by or on behalf Escrow Fund, Acquiror shall notify the Stockholders' Agent of an Indemnified Personsuch claim, and the Purchaser Stockholders' Agent and the Company Stockholders for whom shares of Acquiror Common Stock otherwise issuable to them are deposited in the Escrow Fund shall be entitled, at their expense, to participate in any defense of such claim. Acquiror shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred claim. A copy of all written settlement offers made by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) any third party shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect forwarded to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matterStockholders' Agent. In the event that the Seller Stockholders' Agent has consented to any such settlement or resolutionsettlement, the Seller Stockholders' Agent shall not have any no power or authority to object under Section 7.4 8.7 or any other provision of this Article VII VIII to the amount of any claim by or on behalf Acquiror against the Escrow Fund for indemnity with respect to such settlement. In the event that the Stockholders' Agent has not consented to any such settlement, the amount of any Indemnified Person claim by Acquiror against the Escrow Fund for indemnity with respect to such settlement shall be determined in accordance with Section 8.6, Section 8.7 and Section 8.8 of this Article VIII, provided, however, that the claim by Acquiror shall not exceed the settlement amount with said third party plus unreimbursed defense fees and costs. In the event that the Stockholders' Agent advises Acquiror in writing to accept the third party's written settlement offer but Acquiror decides not to, then (if such offer required nothing of Acquiror other than the payment of money) Acquiror's claim for indemnification under this Article VIII shall be limited to the settlement amount stated in such offer plus unreimbursed defense fees and costs incurred by Acquiror on or resolutionbefore the date the Stockholders' Agent advised acceptance.

Third Party Claims. In the event that If the Purchaser becomes aware of a third-third party claim (a “Third Party Claim”) which the Purchaser reasonably believes may result in a claim against for indemnification by a Purchaser Indemnified Party pursuant to this Article IX (except for claims with respect to indemnification pursuant to Section 9.2(a)(ix), which shall be governed by Section 8.2), the Purchaser by shall notify the Stockholder promptly of such claim, and the Stockholder shall be entitled, at his expense, to participate in, but not to determine or on behalf of an Indemnified Personconduct, the defense of such Third Party Claim. If there is a Third Party Claim that, if adversely determined, would give rise to a right of recovery for Losses under the Agreement, then any amounts incurred by the Purchaser Indemnified Parties in defense or settlement of such Third Party Claim, regardless of the outcome of such claim, shall be deemed Losses under the Agreement. The Purchaser shall have the right in its sole discretion to conduct the defense of of, and to settle or resolve settle, any such claim (and the costs and expenses incurred by Stockholder shall not have a right of approval or consent with respect to any such Third Party Claim; provided, that except with the Purchaser in connection consent of the Stockholder (such consent not to be unreasonably withheld, conditioned or delayed), no settlement of any such Third Party Claim with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) third party claimants shall be included determinative of the amount of Losses relating to such matter or otherwise admissible in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant any proceeding or used in any way to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications resolve any dispute with respect to the third-amount of Losses. If the Stockholder becomes aware of a third party claim (a “Company Third Party Claim”) which he reasonably believes may result in a claim for indemnification by the Stockholder pursuant to this Article IX, the extent that receipt Stockholder shall notify the Purchaser promptly of such documents does not affect any privilege relating to any Indemnified Person claim, and the Stockholder shall be entitled, at its his expense, to participate in, but not to determine or conduct, any the defense of such Company Third Party Claim. The Purchaser shall have the third-party right in its sole discretion to conduct the defense of, and to settle, any such claim and the Stockholder shall not have a right of approval or settlement negotiations consent with respect to the third-party claim. Howeverany such Company Third Party Claim; provided, that except with the consent of the Seller, which Stockholder (such consent shall not to be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaserdelayed), no settlement or resolution of any such claim Company Third Party Claim with any third-third party claimant claimants shall be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such matter. In the event that the Seller has consented matter or otherwise admissible in any proceeding or used in any way to resolve any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII dispute with respect to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionLosses.

Third Party Claims. In the event that the Purchaser Parent becomes aware of a third-third party claim which the Purchaser Parent reasonably believes may result in a demand against the Escrow Fund or for other indemnification pursuant to this Article VIII, Parent shall notify the Stockholder Representative of such third party claim if such claim occurs during the Escrow Period, or each of the Indemnifying Parties that Parent (or any other Indemnified Parties) may bring a claim against if such third party claim occurs after the Purchaser by or on behalf of an Indemnified Person, the Purchaser Escrow Period. Parent shall have the right in its sole discretion to conduct the defense of of, and to settle or resolve settle, any such claim; provided, however, that except with the consent of the Stockholder Representative, no settlement of any such claim (with third party claimants shall be determinative of the amount of Losses relating to such matter. In the event that the Stockholder Representative has consented to any such settlement, the amount of such settlement shall be conclusively and irrebuttably presumed to be reasonable, and the costs Stockholder Representative shall not make, and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller courts shall have no power or authority to hear, any objection under any provision of this Article VIII to the right to receive copies amount of all pleadings, notices and communications any claim by Parent against the Escrow Fund with respect to the third-amount of Losses incurred by Parent in such settlement. The Stockholder Representative and any other Indemnifying Party against whom any Parent Indemnified Party has brought a claim for indemnification arising out of such third party claim to (after the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and Escrow Period) shall be entitledentitled on behalf of the Indemnifying Parties, at its expensesole option and expense (or, in the case of the Stockholder Representative, at the expense of the Indemnifying Holders), to participate in, but not to determine or conduct, any the defense of such claim. If Parent does not elect to proceed with the third-defense of any such third party claim, the Stockholder Representative may proceed with the defense of such third party claim; provided, however, that the Stockholder Representative may not settle, adjust or compromise any such third party claim or settlement negotiations with respect to without the third-party claim. However, except with the prior written consent of the Seller, Parent (which consent shall may not be unreasonably withheldwithheld or delayed), conditioned unless such settlement, adjustment or delayed and which shall be deemed to have been given unless compromise: (i) involves the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement payment of monetary damages in an amount less than or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII equal to the amount of Losses for which the Indemnifying Parties are potentially liable under this Article VIII in connection with such third party claim; (ii) includes a complete and unconditional release of the Indemnified Parties in respect of the third party claim, (iii) involves no admission of wrongdoing by the Indemnified Parties, and (iv) excludes any claim by injunctive or on behalf of any non-monetary relief applicable to the Indemnified Person with respect to such settlement or resolutionParties.

Third Party Claims. In the event that the Purchaser Buyer becomes aware of a third-party claim which the Purchaser Buyer in good faith believes may is reasonably likely to result in a claim against the Purchaser Holdback Fund by or on behalf of an Indemnified PersonPerson (“Third Party Claim”), the Purchaser Buyer shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim Third Party Claim (and the reasonable costs and expenses incurred by the Purchaser Buyer in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser Buyer may seek indemnification pursuant to a claim made hereunder). The Seller Buyer shall timely notify the Sellers’ Representative of a Third Party Claim, the Sellers’ Representative shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim Third Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense of the third-party claim Third Party Claim or settlement negotiations with respect to the third-party claimThird Party Claim. However, except with the written consent of the SellerSellers’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Sellers’ Representative shall have objected within thirty (30) days 15 Business Days after a written request for such consent by the PurchaserBuyer, no settlement or resolution by Buyer of any such claim with any third-party claimant that gives rise to a claim against the Holdback Fund by or on behalf of an Indemnified Person shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Sellers’ Representative has consented to any such settlement or resolution, neither the Seller Sellers’ Representative nor any Indemnifying Party shall not have any power or authority to object under Section 7.4 9.6 or any other provision of this Article VII ARTICLE 9 to the amount of any claim by or on behalf of any Indemnified Person against the Holdback Fund for indemnity with respect to such settlement or resolution but only to the extent that the amount of any such claim by or on behalf of any Indemnified Person is equal to or less than the amount consented to in any such settlement or resolution.

Third Party Claims. In The Buyer shall promptly give written notice to the event that the Purchaser becomes aware Sellers according to art. 6.5 above of any claim of a third-third party claim which the Purchaser believes may might result in a claim claim, suit, action or proceeding of the Buyer against the Purchaser by or on behalf of an Indemnified PersonSellers, the Purchaser shall have the right in its sole discretion accordance with this Agreement. (hereinafter referred to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costsas "Third Party Claim") shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller Sellers shall have the right to receive copies of all pleadingsparticipate, notices and communications with respect and, to the third-party claim maximum extent permitted by law, join, at their cost, by counsel or counsels of their choice, in the defense of any claim, action, suit or proceeding asserted or initiated against the Companies and/or the Buyer constituting the subject matter of a notice of a Third Party Claim. Buyer shall properly and diligently defend, and shall cause the Companies to properly and diligently defend, any Third Party Claim and shall refrain, and shall cause the extent that receipt Companies to refrain, from taking any action which could prejudice the defense of such documents does Sellers' interest hereunder. Buyer shall not affect make or accept any privilege relating settlement of any Third Party Claims nor shall make acquiescence thereto or, as the case may be, to any Indemnified Person and demand, assessment, judgement or order constituting the subject matter of a notice to Sellers of a Third Party Claims or, as the case may be, having resulted from any such claim, action, suit or proceeding, nor shall be entitledpermit the Companies to do so, at its expense, to participate in, but not to determine or conduct, any defense of without the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the prior written consent of the SellerSellers, which consent shall not be unreasonably withheldwithheld without reasonable justification. If a firm offer is made to the Companies or to Buyer to settle any matter giving rise to the Sellers' liability under this Article 6 which Sellers but not Buyer, conditioned or delayed and which are willing to accept, Buyer and/or the Companies (as the case may be) shall be deemed free not to have been given unless the Seller shall have objected within thirty (30) days after a written request for enter into such consent by the Purchasersettlement and to commence or continue litigation, no settlement at its/their own expense, but Sellers' liability under Article 6.01 or resolution of any such claim with any third-party claimant otherwise shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII limited to the amount of any claim by the proposed settlement, including monetary amounts and performance or on behalf of any Indemnified Person with respect to such settlement or resolutioncontributions in kind.

Third Party Claims. In the event that the Purchaser Buyer becomes aware of a third-party claim which the Purchaser Buyer believes may result in a claim against the Purchaser for Indemnifiable Damages by or on behalf of an Indemnified PersonPerson during the periods set forth in Section 8(d), Buyer shall promptly notify the Purchaser Seller of such third-party claim. Subject to Seller providing Buyer with an indemnity, to Buyer's reasonable satisfaction, against all losses, liabilities, damages, costs, charges and expenses which may be incurred in connection with such action, together with such security to support the indemnity as Buyer may reasonably request, upon prompt written notice to Buyer (in any event no later than 10 days after receiving notice from Buyer of such third-party claim), Seller shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim; provided that Buyer provides its prior written consent to any settlement or resolution to be entered into by Seller, such consent not to be unreasonably withheld or delayed. Alternatively, if Seller does not provide such notice to Buyer pursuant to the prior sentence, then Buyer may conduct the defense and settle or resolve any such claim (and the Seller hereby indemnifies Buyer against all costs and expenses incurred by the Purchaser Buyer in connection with such defense, settlement or resolution (including reasonable attorneys’ ' fees, other professionals’ ' and experts’ ' fees and court or arbitration costs) shall be included ). Should Seller conduct the defense or resolution of third party claims, Seller must act in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant good faith, liaise with Buyer in relation to such defense, provide Buyer with reasonable access to a copy of any notice, correspondence or other document relating to the third-party claim made hereunderand act reasonably in all circumstances (including having regard to the likelihood of success and the effect of the proceedings or actions on the goodwill or reputation of the Division Business and Buyer). The Seller , and Buyer shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution.

Third Party Claims. In the event of a Third Party Claim, the Indemnitee shall give the Indemnitor notice after the Indemnitee receives notice of the third party's claim underlying the Third Party Claim and shall specify (if known) the factual basis for the underlying third party's claim and the amount or an estimate (if known or reasonably determinable) of the Damages that may arise therefrom. In each such case the Indemnitee agrees to give such notice to the Indemnitor promptly; provided, however, that the Purchaser becomes aware failure of a third-party claim which the Purchaser believes may result Indemnitee to so give such notice shall not excuse the Indemnitor's obligation to indemnify except to the extent that the Indemnitor has suffered actual damage or prejudice by reason of the Indemnitee's failure to give, or delay in a claim against giving, such notice. After receipt of such notice from the Purchaser by or on behalf of an Indemnified PersonIndemnitee, the Purchaser Indemnitor shall have acknowledge in writing its obligation to indemnify in respect of such Third Party Claim, but if the right in Indemnitor does not so acknowledge its sole discretion to conduct obligation, the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller Indemnitee shall have the right to receive copies compromise or defend the third party's claim underlying the Third Party Claim at the expense and for the account of all pleadingsthe Indemnitor. If the Indemnitor shall have so acknowledged its obligation to indemnify in respect of the Third Party Claim, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledIndemnitor shall, at its expense, have the right to participate in, but not to determine or conduct, any control the defense of the third-party underlying third party's claim or settlement negotiations with respect counsel of its choice reasonably satisfactory to the third-party claim. However, except with Indemnitee so long as the consent Indemnitor conducts the defense of the Sellerunderlying third party's claim actively and diligently. If the Indemnitor exercises its right to control the defense of the third party's claim underlying a Third Party Claim, the Indemnitee shall also have the right to participate in such defense at its own expense. At any time after notice of any Third Party Claim, the Indemnitor may request the Indemnitee to consent in writing to the payment or compromise of the underlying third party's claim, at the expense and for the account of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution.

Third Party Claims. In the event that the Purchaser Buyer becomes aware of a third-party claim (a “Third-Party Claim”) which the Purchaser Buyer reasonably believes may result in a claim against the Purchaser by or on behalf of an Indemnified Person, the Purchaser shall have the right in its sole discretion for indemnification for Losses pursuant to conduct the defense of and to settle or resolve any such claim (this Article VIII and the costs and expenses incurred by the Purchaser in connection with such defenseEscrow Agreement, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) Buyer shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The promptly notify Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person claim, and Seller shall be entitled, at its expense, to participate in, but not to determine or conduct, any the defense of the third-party claim or settlement negotiations with respect to the third-party such claim. HoweverBuyer shall have the right in its sole discretion to conduct the defense of and to settle any such Third-Party Claim; provided, however, that except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any thirdThird-party claimant Party Claim shall be determinative of the existence of or amount of Indemnifiable Damages relating Losses or the indemnification obligation of the Indemnifying Parties with respect to such matterLosses. In the event that the Seller has consented consents to any such settlement or resolutionof a Third-Party Claim, the Seller no Indemnifying Party shall not have any power or authority under this Article VIII or the Escrow Agreement to object under Section 7.4 or any other provision of this Article VII to the amount of any Buyer’s claim for Losses with respect thereto. EXHIBIT F TERAWAVE COMMUNICATIONS, INC. FORM OF SELLER OFFICERS’ CERTIFICATE October , 2007 Reference is hereby made to that certain Asset Purchase Agreement (the “Asset Purchase Agreement”) made and entered into as of September 27, 2007 by or and between Terawave Communications, Inc., a California corporation (“Terawave”) and Occam Networks, Inc., a Delaware corporation (“Occam”). Any capitalized terms not defined herein shall have the meanings ascribed to them in the Asset Purchase Agreement. Reference is also made to that certain Officer’s Certificate of Terawave dated October 11, 2007 where certified copies of a list of Terawave’s current, past and retired employees and a list of Terawave’s current and past contractors and consultants are attached. The October 11, 2007 Officer’s Certificate including the above-mentioned lists is hereby fully incorporated by reference as part of this Certificate. Pursuant to Section 3.3(a)(x) of the Asset Purchase Agreement, the undersigned hereby certify, for and on behalf of any Indemnified Person with respect to such settlement or resolution.Terawave, as follows:

Third Party Claims. In Should any Third-Party Claim be made against the event that the Purchaser becomes aware of a third-party claim Stockholders with respect to any matter to which the Purchaser believes may result indemnity set forth in a claim against Section 10(a) relates, then the Purchaser by or on behalf Stockholders shall promptly give Buyer written notice of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (Third-Party Claim and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller Buyer shall have the right to receive copies of all pleadings, notices and communications with respect to the thirddefend or settle any such Third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledParty Claim, at its sole expense, on its own behalf and with counsel of its own choosing, which counsel shall be reasonably satisfactory to participate in, but not to determine or conduct, any the Stockholders. The Stockholders agree that Pxxxxxxxx Xxxxxxxxxx & Lxxx LLP is satisfactory. In such defense of the third-party claim or settlement negotiations of any claim, the Stockholders shall cooperate with respect and assist Buyer to the third-party claim. Howevermaximum extent reasonably possible and may participate therein with his or her own counsel at his or her own expense, except with and the Stockholders’ written consent of the Sellershall be a requirement to any settlement and disposition thereof, which consent shall not be unreasonably withheldwithheld or delayed. Failure by the Stockholders to give notice within a reasonable period of time shall not constitute a defense, conditioned in whole or delayed in part, to any claim for indemnification by the Stockholders, except only to the extent that such failure by the Stockholders shall result in a material prejudice to Buyer. If Buyer does not notify the Stockholders within 10 days after receipt of the Stockholders’ written notice of a Third-Party Claim that Buyer intends to undertake the defense thereof, and which shall be deemed that such claim is subject to have been given unless the Seller indemnity set forth in Section 10(a), or if after undertaking such defense Buyer fails to pursue such defense in a prudent manner, then the Stockholders shall have objected within thirty (30) days after a written request the right to contest, settle or compromise the claim and Buyer shall indemnify the Stockholders for such consent the full amount of all Losses paid or suffered by the PurchaserStockholders in respect thereof. Notwithstanding the foregoing, no settlement so long as Buyer is contesting any such Third Party Claim in good faith, the Stockholders shall not have the right to pay or resolution of settle any such claim with any third-party claimant shall be determinative without the prior written consent of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionBuyer.

Third Party Claims. In If any Indemnity Claim is based upon any claim, demand, suit or action of any third party against Lessee or the event that leased premises (a "Third Party Claim"), then Lessee, at the Purchaser becomes aware time it gives Lessors the Notice of a third-party claim which Claim with respect to such Third Party Claim, shall: Offer to Lessors the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified Person, the Purchaser shall option to have the right in its sole discretion to conduct Lessors assume the defense of such Third Party Claim, which option shall be exercised by Lessors (if they elect to exercise) by written notice to Lessee within fifteen (15) days after Lessee gives written notice to Lessors thereof. If Lessors so exercise such option, then Lessors shall, at their own expense, assume the defense of such Third Party Claim, and shall upon the final determination thereof fully discharge at their own expense all liability of Lessee with respect to such Third Party Claim, and shall be entitled, in their sole discretion and at their sole expense but without any liability of Lessee therefor, to compromise or settle such Third Party Claim upon terms acceptable to them. From the time Lessors so assume such defense and while such defense is pursued diligently and in good faith, Lessors shall have no further liability for attorneys' fees or resolve any such claim (and the other costs and expenses of defense thereafter incurred by the Purchaser Lessee in connection with such defenseThird Party Claim; PROVIDED HOWEVER, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller that Lessee shall have the right to receive copies of all pleadingsparticipate in (but not control) such defense; or If Lessors do not make the election provided in subparagraph (1) above, notices Lessee shall undertake to defend such Third Party claim itself. It shall conduct such defense as would a reasonable and communications with respect prudent person to the third-party claim whom no indemnity were available, shall permit Lessors (at their sole expense) to the extent that receipt of participate in (but not control) such documents does not affect any privilege relating to any Indemnified Person defense, and shall be entitled, at its expense, to participate in, but not to determine settle or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with compromise such Third Party Claim without the consent of the Seller, Lessors to such settlement or compromise (which consent shall not unreasonably be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution).

Third Party Claims. In the event that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified Person, the The Purchaser shall have as soon as reasonably practicable give notice to the right Seller of any claim, suit, action or proceeding brought by a third party in its sole discretion to conduct the defense respect of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to indemnity under this Agreement (a claim made hereunder“Third-party Claim”). The Seller may opt to (i) satisfy the Seller’s indemnity obligation in respect of the Third-party Claim, if any, or (ii) deliver to the Purchaser as soon as reasonably practical a written notice of disagreement with the indemnity obligation, specifying in reasonable detail, based upon information then available, the nature and extent of the disagreement. Unless the Purchaser is of the reasonable opinion that for legitimate business interests of the Purchaser or the Acquired Company a control of the defense by the Seller is inappropriate, the Seller may upon delivery of the notice of disagreement assume the defense against the Third-party Claim. An assumption of the defense by the Seller shall have not be interpreted to acknowledge the right Seller’s obligation to receive copies indemnify the Purchaser in respect of the Third-party Claim. When defending the Third-party Claim the Seller shall (a) keep the Purchaser at all pleadingstimes informed about the status of defense measures, notices and communications (b) comply with any reasonable request of the Purchaser with respect to the thirddefense. The Purchaser shall be allowed a reasonable opportunity to participate in the defense with its own counsel and at its own expense. The Seller shall be authorized to consent to a settlement of, or the entry of any Judgment arising from, the Third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledClaim, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except only with the prior written consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Purchaser. The Seller shall have objected within thirty (30) days after pay all costs and expenses incurred in conjunction with a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any thirdThird-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event Claim, including all court fees, lawyer fees, and fees for experts and consultants, provided that the Seller has consented is under an obligation to any such settlement or resolutionindemnify the Purchaser in respect of the Third-party Claim. 12.5 De-Minimis, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution.Threshold Amount and Cap

Third Party Claims. In the event that the Purchaser Acquiror becomes aware of a third-party claim which the Purchaser Acquiror believes may result in a claim demand against the Purchaser by or on behalf Escrow Fund, Acquiror shall promptly notify the Stockholders’ Agent of an Indemnified Personsuch claim, stating the Purchaser nature and basis of such third 60 party claim and the dollar amount of such third-party claim, to the extent known. Acquiror shall have the right in its sole discretion to conduct the defense of and to defend or settle or resolve any such claim; provided, that Acquiror shall not settle any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may it intends to seek indemnification pursuant to a claim made hereunder). The Seller shall have from the right to receive copies holders of all pleadings, notices and communications with respect to Target Preferred Stock hereunder without the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the prior written consent of the Seller, which Stockholders’ Agent (such consent shall not to be unreasonably withheld, conditioned or delayed, provided that, for the avoidance of doubt, such consent may be withheld, conditioned or delayed and to the extent that the Stockholders’ Agent reasonably believes in good faith that the amount of any such proposed settlement for which shall be deemed to have been given unless the Seller any Acquiror Indemnified Person is seeking indemnification is excessive). No Acquiror Indemnified Person shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no right to seek indemnification under this Section 9 in respect of any settlement or resolution of any such claim entered into without the prior written consent of the Stockholders’ Agent in accordance with any third-party claimant the foregoing sentence, and the Stockholders’ Agent shall be determinative entitled to monitor such defense at the expense of the existence of or amount of Indemnifiable Damages relating to such matterTarget stockholders. In To the event extent that the Seller Stockholders’ Agent has consented to any such settlement or resolutionsettlement, the Seller Stockholders’ Agent shall not have any no power or authority to object under Section 7.4 9.3 or any other provision of this Article VII Section 9 to the amount of any such claim by or on behalf of any Indemnified Person Acquiror against the Escrow Fund for indemnity with respect to such settlement. Notwithstanding anything to the contrary, (a) if Acquiror does not proceed with the defense of any such claim for which it seeks, or intends to seek, indemnification under this Agreement, (b) if an Acquiror Indemnified Person is seeking indemnification in excess of the Cap and the Stockholders’ Agent has agreed to so indemnify, or (c) with respect to the Complaint, for the period until January 1, 2013 (following which Acquiror shall have the option at any time thereafter to take over the defense of such matter, provided that indemnification for such matter shall then again be subject to the Cap), in each such case the Stockholders’ Agent may proceed with the defense of such claim at the sole expense of the Target stockholders with counsel reasonably satisfactory to Acquiror; provided, that the Stockholders’ Agent may not settle, adjust or compromise any such claim without the prior written consent of Acquiror (which consent may not be unreasonably withheld or delayed, provided that, for the avoidance of doubt, such consent may be withheld, conditioned or delayed to the extent that the Acquiror reasonably believes in good faith that the amount of any such proposed settlement or resolutionis excessive); provided, further, that Acquiror shall be entitled to full indemnification for any Damages resulting from such defense pursuant to Section 9.8(b) and the Cap shall not apply to such Damages.

Third Party Claims. In the event that the Purchaser If Parent becomes aware of a third-party claim which the Purchaser that Parent believes may result in a claim demand for monetary damages against the Purchaser by or on behalf Escrow Fund, Parent shall promptly notify the Securityholder Agent of an Indemnified Personsuch claim (but the failure to promptly notify the Securityholder Agent shall not relieve the indemnifying party of its obligations hereunder) and the Securityholder Agent, as representative for the Company Stockholders, shall be entitled, at his election, to undertake control of the defense thereof with counsel of his choosing reasonably acceptable to Parent, in which case Parent may participate in such defense through its own counsel and at its own expense. Notwithstanding the foregoing, the Purchaser Securityholder Agent shall not be entitled to undertake the defense of a claim if such claim demands injunctive or other equitable relief. If the Securityholder Agent declines to undertake the defense of such claim within fifteen (15) days after written notice of such claim has been delivered to the Securityholder Agent or fails to diligently defend such claim at any time, Parent shall have the right to undertake the defense of such claim with counsel of its choosing and the fees and expenses of such counsel shall constitute Losses for purposes of this Article VII. If the Securityholder Agent elects to undertake the defense of a third-party claim, the Securityholder Agent shall be entitled to recover its reasonable attorneys fees and expenses that relate to such third-party claim from the Escrow Fund immediately prior to the expiration of the Escrow Period out of amounts that would otherwise be distributed to the Company Stockholders pursuant to Section 7.2(c); provided, however, that any and all Losses incurred by Parent, its officers, directors or affiliates (including the Surviving Corporation) that are recoverable against the Escrow Fund and any amounts necessary to satisfy unresolved claims pursuant to this Article VII shall be satisfied in full or reserved for before any attorneys fees and expenses of the Securityholder Agent may be paid from the Escrow Fund. If the Securityholder Agent declines to undertake the defense of a third-party claim or fails to diligently defend such claim at any time, Parent shall have the right in its sole reasonable discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defenseclaim; provided, settlement or resolution (including reasonable attorneys’ feeshowever, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the PurchaserSecurityholder Agent, no settlement or resolution of any such claim with any third-party claimant claimants shall alone be determinative of the existence of or amount of Indemnifiable Damages relating to such matterany claim against the Escrow Fund. In If the event that the Seller Securityholder Agent has consented to any such settlement or resolutionsettlement, the Seller Securityholder Agent shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person Parent against the Escrow Fund with respect to and in the amount of such settlement settlement. Parent and the Securityholder Agent shall cooperate with each other in all reasonable respects in connection with the defense of any third-party claim, including making available records relating to such claim and furnishing employees of Parent or resolutionthe Surviving Corporation as may be reasonably necessary for the preparation of the defense of any such third-party claim or for testimony as witness in any proceeding relating to such claim.

Third Party Claims. In the event that the Purchaser becomes aware of If any claim is made by a third-party claim which the Purchaser believes may result in Third Party (other than a claim against the Purchaser by or on behalf of an Indemnified PersonTaxing Authority) that, if sustained, would give rise to indemnification under Section 10.01, the Purchaser shall have Buyer will promptly notify the right Seller in its sole discretion to conduct the defense of accordance with, and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defensesubject to, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification Section 10.02(b). Except pursuant to a claim made hereunder). The the penultimate sentence of this Section 10.04, the Seller shall have the right to receive copies of all pleadings, notices and communications with respect upon written notice to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledBuyer, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty fifteen (3015) days after a written request for such consent by receipt from the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative Buyer of the existence applicable Section 10.02(b) notice, to conduct and control at its expense and through counsel of or amount of Indemnifiable Damages relating its own choosing that is reasonably satisfactory to the Buyer the defense against such matterThird Party claim. In the event that the Seller has consented elects to conduct the defense of such Third Party claim, the Buyer will reasonably cooperate with the Seller (at the Seller’s expense) as may be reasonably requested by the Seller, and the Buyer shall have the right at its own expense to participate in the defense of such Third Party claim assisted by counsel of its own choosing. Without the prior written consent of the Buyer, the Seller will not enter into any such settlement or resolutioncompromise of any Third Party claim, if (i) pursuant to or as a result of such settlement, compromise or cessation, injunctive or other equitable relief would be, or would reasonably be likely to be, imposed against the Buyer or any of its Affiliates (for this purpose including the AB Group), (ii) such settlement, compromise or cessation would (or would reasonably be likely to) lead to a liability or create any financial or other obligation on the part of the Buyer or any of its Affiliates (for this purpose including the AB Group) for which the Buyer is not entitled to indemnification hereunder (in the case of financial obligations only, unless the Seller agrees to fully indemnify Buyer for any and all of such financial obligations), or (iii) such settlement, compromise or cessation would, or would reasonably be likely to, include a statement or admission of fault, culpability or failure to act by or on behalf of the Buyer or any of its Affiliates (for this purpose including the AB Group). The Seller shall not be entitled to control, and the Buyer shall be entitled to have control over (at the Buyer’s expense, but subject to the Buyer’s rights to indemnification hereunder), the defense of such Third Party claim, upon notice to the Seller, in the event (x) such Third Party claim relates to or arises in connection with any criminal Proceeding, action, indictment, allegation or investigation, (y) the Seller shall not have timely elected to assume control over such defense in accordance with this Section 10.04, or shall have failed to diligently conduct such defense in any power respect or authority (z) of a Proceeding to object under Section 7.4 which the Seller is also a party and a conflict exists as a result of the Seller’s control over such defense; provided that the Seller may elect to participate in such defense or settlement at any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutiontime at its own expense.

Third Party Claims. In 7.2.1 Claims for which Parent is the event Indemnified Party. With respect ------------------------------------------------ to any claims or demands by third parties upon which Parent is entitled to indemnification hereunder, other than claims or demands covered by Section 7.3, whenever Parent shall have received a written notice that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in such a claim against or demand has been asserted or threatened, Parent shall notify the Purchaser by or on behalf "Holders' Representative"' (as designated in the Escrow Agreement) of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (or demand and of the costs and expenses incurred by the Purchaser in connection with facts within Parent's knowledge that relate thereto within a reasonable time after receiving such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)written notice. The Seller Holders' Representative shall then have the right to receive copies of all pleadingscontest, notices and communications with respect to the third-party claim to the extent that receipt of negotiate or settle any such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect demand through counsel of their own selection, satisfactory to Parent and solely at their own cost, risk, and expense. Notwithstanding the third-party claim. Howeverpreceding sentence, except with the Holders' Representative shall not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent of the SellerParent, which consent shall not be unreasonably withheld, conditioned withheld or delayed delayed. By way of illustration and not limitation it is understood that Parent may object to a settlement or compromise which includes any provision which in its reasonable judgment may have an adverse impact on or establish an adverse precedent for the Business Condition of Parent or any of its Subsidiaries. Parent shall not have the right to object to a settlement which consists solely of the payment of a monetary damage amount and which shall be deemed is subject to have been given unless full indemnification under this Agreement. If the Seller shall have objected within thirty (30) days after a Holders' Representative fails to give written request for such consent by the Purchaser, no settlement notice to Parent of their intention to contest or resolution of settle any such claim with any third-party claimant shall be determinative of or demand within twenty (20) calendar days after Parent has notified the existence of or amount of Indemnifiable Damages relating to such matter. In the event Holders' Representative that the Seller has consented to any such settlement claim or resolutiondemand has been made in writing and received by Parent, or if any such notice is given but any such claim or demand is not promptly contested by the Seller Holders' Representative, Parent shall not have any power the right to satisfy and discharge the same by payment, compromise, or authority to object under Section 7.4 or any other provision of this Article VII to otherwise, in accordance with the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionprocedures set forth in the Escrow Agreement.

Third Party Claims. In the event that the Purchaser becomes aware of If a third-Claim by a third party claim which the Purchaser believes may result in a claim is made against the Purchaser by or on behalf of an Indemnified Person, and if such Indemnified Person intends to seek indemnity with respect thereto under this Section 8, such Indemnified Person shall promptly notify the Purchaser Indemnitor in writing of such Claims, setting forth such Claims in reasonable detail. The Indemnitor shall have twenty (20) Business Days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the right in its sole discretion to conduct the settlement or defense of and to settle or resolve any such claim (thereof, and the costs Indemnified Person shall cooperate with it in connection therewith; provided, however, that the Indemnified Person may participate in such settlement or defense through counsel chosen by such Indemnified Person and paid at its own expense; and provided further, that if in the opinion of counsel for such Indemnified Person there is a reasonable likelihood of a conflict of interest between the Indemnitor and the Indemnified Person, the Indemnitor shall be responsible for reasonable fees and expenses incurred by the Purchaser of one counsel to such Indemnified Person in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller Indemnified Person shall not pay or settle any such Claim without the consent of the Indemnitor. If the Indemnitor does not notify the Indemnified Person within twenty (20) Business Days after receipt of the Indemnified Person’s notice of a Claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Person shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledundertake, at its Indemnitor’s cost, risk and expense, to participate in, but not to determine or conduct, any the defense of the third-party claim or settlement negotiations with respect Claim but shall not thereby waive any right to the third-party claimindemnity therefor pursuant to this Agreement. HoweverThe Indemnitor shall not, except with the consent of the SellerIndemnified Person, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless enter into any settlement that includes any obligations of the Seller shall have objected within thirty (30) days after a written request for such consent Indemnified Person other than the payment of money by the PurchaserIndemnitor on its behalf and that does not include as an unconditional term thereof the giving by the Person or Persons asserting such Claim to all Indemnified Persons (i.e., no settlement Seller Parent Indemnified Persons or resolution Buyer Indemnified Persons, as the case may be) of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person an unconditional release from all liability with respect to such settlement Claim or resolutionconsent to entry of any judgment.

Third Party Claims. In the event that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in a demand against the Indemnification Escrow Fund, Purchaser shall promptly notify the Shareholders’ Representative of such claim, and the Shareholders’ Representative, as representative for the Shareholders, shall be entitled, at his expense (which expense shall pursuant to and subject to the limitations set forth in Section 1.7(f) be payable out of the Indemnification Escrow Fund), to participate in any defense of such claim. If the amount in controversy in connection with any third-party claim shall be less than the value of the Indemnification Escrow Consideration remaining in the Indemnification Escrow Fund (determined in accordance with Section 8.2(d)) and the Shareholders’ Representative acknowledges in writing to Purchaser that if the allegations in such claim are in fact true then any liability arising from the adjudication or other settlement of such claim would be for the account of the Shareholders and would be a valid claim against the Purchaser by or on behalf Indemnification Escrow Fund, then the Shareholders’ Representative shall be entitled to assume the defense of an Indemnified Personsuch claim and, if at the time any settlement of such claim shall be proposed, the amount in controversy shall continue to be less than the value of the Indemnification Escrow Consideration remaining in the Indemnification Escrow Fund (determined in accordance with Section 8.2(d)), shall have the power to settle such claim in an amount not to exceed such remaining value. If the Shareholders’ Representative is not entitled to or chooses not to assume the defense of any such claim, Purchaser shall consult with and attempt to solicit the consent of the Shareholders’ Representative prior to and in connection with any settlement of any such claim, but Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim. If any such claim (and the costs and expenses incurred by the Purchaser in connection with such defenseis, settlement or resolution (including reasonable attorneys’ feeshowever, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with settled without the consent of the SellerShareholders’ Representative and Purchaser seeks to recover the amount of the settlement by claiming against the Indemnification Escrow Fund, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant claimants shall not alone be determinative of the existence of or amount of Indemnifiable Damages relating to any claim against the Indemnification Escrow Fund and the Shareholders’ Representative may dispute such matteramount through the process provided by Section 8.2(j). In the event that the Seller Shareholders’ Representative has consented in writing to any such settlement or resolutionand acknowledged that the claim by Purchaser is a valid claim against the Indemnification Escrow Fund, the Seller Shareholders’ Representative shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII VIII to the amount of any claim by or on behalf of any Indemnified Person Purchaser against the Indemnification Escrow Fund with respect to such settlement or resolutionsettlement.

Third Party Claims. Within thirty (30) days after the assertion by any third party of any claim against any Indemnitee, but as long as there are at least ten (10) days until the end of the period during which the Sellers or the Company can oppose or contest such claim or issue a statement thereon (provided that there are at least ten days remaining when the claim is made) (a “Third-Party Claim”) that, in the judgment of such Indemnitee, may result in the incurrence by such Indemnitee of Buyer Damages for which such Indemnitee would be entitled to indemnification pursuant to this Agreement, such Indemnitee shall deliver to the Sellers a written notice describing in reasonable detail such Third-Party Claim; provided, however, that no delay on the part of the Indemnitee in notifying Sellers shall relieve Sellers of any liability or obligations hereunder, except to the extent that Sellers have been prejudiced thereby, and then only to such extent. The Sellers shall have the right, but not the obligation, exercisable in their sole discretion by written notice to the Indemnitee within thirty (30) days of receipt of notice from the Indemnitee of the commencement of or assertion of any Third-Party Claim, to assume the defense and control the settlement of such Third-Party Claim, either directly or by appointment of a single Sellers Representative to represent all Sellers for purposes of this Section 8.4(c) authorized to assume the defense and control the settlement of such Third-Party Claim on behalf of all Sellers. The Indemnitee shall have the right to participate in (but not control), at its own expense, the defense and settlement of any Third-Party Claim. If the Sellers do not elect to undertake and conduct the defense of a Third-Party Claim, the Indemnitee shall undertake the defense of such Third-Party Claim. In the event that the Purchaser becomes aware of a third-party claim which the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified Person, the Purchaser shall Sellers have the right in its sole discretion to conduct assumed the defense of and any Third-Party Claim, the Sellers or the Sellers Representative shall not consent to settle a settlement of, or resolve the entry of any judgment arising from, any such claim Third-Party Claim without the Indemnitee’s prior written consent (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given delayed), unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolutionjudgment relates solely to monetary damages and provides for a complete release of the Indemnitee, in which case, no such consent shall be required. The Indemnitee shall have the Seller shall not have any power right to settle, or authority to object under Section 7.4 or any other provision of this Article VII consent to the amount entry of any claim by judgment arising from, any Third-Party Claim for which the Sellers have not assumed the defense. Whether or on behalf of not the Sellers elect to defend or prosecute any Indemnified Person with respect to Third-Party Claim, all parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such settlement or resolutionrecords, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.

Third Party Claims. In the event that the Purchaser Buyer becomes aware of a third-party claim which the Purchaser Buyer in good faith believes may result in a claim against the Purchaser for indemnification under this Article VII by or on behalf of an a Buyer Indemnified Person, the Purchaser Buyer shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the reasonable costs and expenses incurred by the Purchaser Buyer in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser Buyer may seek indemnification pursuant to a claim made hereunder). The Seller Representative shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Buyer Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the SellerRepresentative, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Representative shall have objected within thirty twenty (3020) days after a written request for such consent by the PurchaserBuyer, no settlement or resolution by Buyer of any such claim with any third-party claimant that gives rise to a claim for indemnification by or on behalf of a Buyer Indemnified Person shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Representative has consented to any such settlement or resolution, the Seller Representative shall not have any power or authority to object under Section 7.4 7.5 or any other provision of this Article VII to the amount of any claim by or on behalf of any Buyer Indemnified Person against the Escrow Shares or otherwise for indemnity with respect to such settlement or resolution.

Third Party Claims. In the event that Buyer or the Purchaser becomes aware Surviving Corporation receives written notice of a third-party claim (a "Third Party Claim") which the Purchaser believes Buyer reasonably expects may result in a claim demand against the Purchaser Escrow Fund, Buyer shall provide the Shareholder Representatives with reasonably prompt written notice thereof. The Shareholder Representatives, as representative for the Shareholders, shall have the right to participate in or, by giving written notice to Buyer, to assume the defense of any Third Party Claim at the expense of the Escrow Fund and by counsel selected by the Shareholder Representatives (which counsel must be reasonably satisfactory to Buyer), and Buyer will cooperate in good faith (and shall be permitted to participate at Buyer's expense) in such defense; provided, however, that the Shareholder Representatives shall not be entitled to assume control of the defense of any Third Party Claim that (i) could reasonably be expected to have any impact on the ongoing operations or on behalf goodwill of an Indemnified Person, the Purchaser Surviving Corporation or Buyer or their intellectual property or (ii) could reasonably be expected to result in Losses in excess of the Escrow Fund. Buyer shall have the right in its sole discretion to conduct the defense of and to settle any Third Party Claim contemplated by clause (i) or resolve (ii) above; provided, however, that if Buyer settles any such claim Third Party Claim without the Shareholder Representatives' written consent (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheldwithheld or delayed), conditioned Buyer may not make a claim against the Escrow Fund with respect to the amount of Losses incurred by Buyer in such settlement unless the Shareholder Representatives unreasonably withheld or delayed and such consent; provided, further, that the Shareholder Representatives may not settle any Third Party Claim without Buyer's written consent (which consent shall not be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement unreasonably withheld or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matterdelayed). In the event that the Seller has Shareholder Representatives have consented to any such settlement or resolutionsettlement, the Seller Shareholder Representatives shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII 7 to the amount of any claim by or on behalf of any Indemnified Person Buyer against the Escrow Fund with respect to the amount of Losses incurred by Buyer in such settlement or resolutionas consented to by the Shareholder Representatives.

Third Party Claims. In the event that the Purchaser Acquiror becomes aware of a third-party claim which the Purchaser Acquiror believes may result in a claim against the Purchaser Escrow Fund by or on behalf of an Indemnified Person, the Purchaser Acquiror shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser Acquiror in connection with such defense, settlement or resolution (including reasonable attorneys’ feesfees , other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser Acquiror may seek indemnification pursuant to a claim made hereunder). The Seller Indemnifying Holders’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the SellerIndemnifying Holders’ Agent, which consent shall not be unreasonably withheld, conditioned or delayed withheld and which shall be deemed to have been given unless the Seller Indemnifying Holders’ Agent shall have objected within thirty (30) 15 days after a written request for such consent by the PurchaserAcquiror, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Indemnifying Holders’ Agent has consented to any such settlement or resolution, none of the Seller Indemnifying Holders’ Agent, the Indemnifying Holders shall not have any power or authority to object under Section 7.4 8.7 or any other provision of this Article VII VIII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution.

Third Party Claims. In the event there are third party actions, suits or legal proceedings (the “Proceeding”) for injury or death to persons or damage to property arising out of or relating to events occurring on the Property during the period of Seller's ownership of the Property, to the extent that they are not caused by, or attributable to, any act or omission of Buyer, its employees, agents, contractors or invitees during the Purchaser becomes aware period of a third-party claim which Seller's ownership of the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified PersonProperty, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller then Buyer shall have the right to receive copies tender defense of any such Proceeding to Seller, and Seller shall indemnify, defend and hold Buyer harmless from and against any losses, damages, liabilities, fines, penalties, charges and all pleadings, notices costs and communications expenses incurred or suffered by Buyer in connection with respect or relating to the thirdProceeding; provided, however, that Seller shall have no such obligation unless: (a) Buyer notifies Seller in writing within forty-party claim five (45) days of the date Buyer becomes first aware of the commencement of a Proceeding against Buyer (provided that no failure or delay in giving notice will relieve Seller from its indemnity obligation, except to the extent that receipt Seller is prejudiced by such failure or delay); (b) Buyer provides Seller with copies of such all documents does not affect any privilege received by Buyer relating to any Indemnified Person the Proceeding; (c) Buyer gives Seller, with reputable counsel of Seller's choosing, the sole power to direct and shall be entitled, at its expense, to participate in, but not to determine or conduct, any control the settlement and defense of the third-party claim Proceeding, provided that Seller will not settle a Proceeding without Buyer's consent unless (i) all claims in the Proceeding against Buyer will be dismissed with prejudice as part of the settlement and (ii) the sole relief provided is to be paid in full or performed by Seller; and (d) Buyer uses commercially reasonable efforts to cooperate and assist Seller in its defense or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent Proceeding. This Section 7.1.5 shall not be unreasonably withheld, conditioned in no way apply to or delayed alter Buyer's release of claims set forth in Section 7.1.3(A) and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution.7.1.3(B)

Third Party Claims. In the event that the Purchaser If Buyer becomes aware of a third-claim of a third party claim which the Purchaser believes (including for all purposes of this Section 7.04, any Governmental Authority) that Buyer believes, in good faith, may result in a claim by it or any other Buyer Indemnitee against the Purchaser by or on behalf Seller, Buyer shall notify Seller of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and as promptly as practicable, provided that any failure to provide such notice shall not relieve Seller from its obligations under this Article VII except to the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)extent that Seller is actually prejudiced thereby. The Seller shall have the right to receive copies of all pleadings, notices assume and communications with respect to conduct the third-party claim to the extent that receipt defense of such documents does not affect any privilege relating to any Indemnified Person claim. Seller shall conduct such defense in a commercially reasonable manner, and shall be entitled, at its expense, authorized to participate in, but not to determine or conduct, settle any defense of the third-party such claim or settlement negotiations with respect to the third-party claim. However, except with without the consent of Buyer, provided, however, that without the Seller, consent of Buyer (which consent shall not be unreasonably withheld, conditioned ): (a) Seller shall not be authorized to encumber any assets of Buyer (including the Transferred Assets or delayed and which shall be deemed Transferred Shares or assets related exclusively to have been given unless the Business of Transferred Sub) or agree to any restriction that would apply to Buyer or the conduct of Buyer’s business; (b) Seller shall have objected within thirty paid or caused to be paid any amounts arising out of such settlement; and (30c) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented condition to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision be a complete release of this Article VII to the amount of any claim by or on behalf of any Indemnified Person Buyer Indemnitees with respect to such settlement third party claim. Buyer or resolutionother applicable Buyer Indemnitee shall be entitled to participate in (but, subject to the succeeding sentence, not control) the defense of any third party claim, with its own counsel and at its own expense; provided, that Seller shall be liable for the reasonable fees and expenses of one (1) firm of outside counsel (and not any fees and expenses allocated to any internal counsel) employed by the Buyer Indemnitees for any period during which Seller has not assumed the defense thereof following the date which is ten (10) days after delivery of such notice (other than during any period in which Buyer shall have failed to give notice of the third party claim) or to the extent that counsel to the Buyer Indemnitee concludes that representation of such Indemnitee by the counsel retained by Seller would be inappropriate due to actual or potential conflicts of interest between the Seller and any other party represented by such counsel in such Proceeding. Buyer shall cooperate fully with Seller in the defense of any third party claim. If Seller does not assume the defense of any third party claim in accordance with the provisions hereof, Buyer may defend such third party claim in a commercially reasonable manner and may settle such third party claim after giving written notice of the terms thereof to Seller.

Third Party Claims. (a) In the event that the Purchaser becomes aware of a third-party claim which the Purchaser in good faith believes may result in a an indemnification claim against the Purchaser by or on behalf of an Indemnified Personpursuant to this ARTICLE 9, the Purchaser shall have the right in its sole discretion discretion, with counsel reasonably satisfactory to the Shareholders’ Agent, to conduct the defense of and to settle or resolve any such claim (and the reasonable costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder); provided, however, that if Purchaser settles or compromises any such claim without the consent of the Shareholders’ Agent, such settlement or compromise shall not be conclusive evidence of the amount of Indemnifiable Damages incurred by Purchaser in connection with such claim (it being understood that if Purchaser requests that the Shareholders’ Agent consent to a settlement or compromise, the Shareholders’ Agent shall not unreasonably withhold or delay such consent). The Seller Purchaser shall timely notify the Shareholders’ Agent of a third-party claim, the Shareholders’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Shareholders’ Agent has consented to any such settlement or resolution, neither the Seller Shareholders’ Agent nor any Indemnifying Party shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person pursuant to this ARTICLE 9 with respect to such settlement or resolutionresolution but only to the extent that the amount of any such claim by or on behalf of any Indemnified Person exceeds the amount consented to by the Shareholders' Agent.

Third Party Claims. In the event that Parent or the Purchaser becomes aware Surviving Corporation receives written notice of a third-party claim (a "Third Party Claim") which the Purchaser believes Parent reasonably expects may result in a claim demand against the Purchaser Escrow Fund, Parent shall provide the Stockholder Agent with reasonably prompt written notice thereof. The Stockholder Agent, as representative for the stockholders of the Company, shall have the right to participate in or, by giving written notice to Parent, to assume the defense of any Third Party Claim at the expense of the Escrow Fund and by counsel selected by the Stockholder Agent (which counsel must be reasonably satisfactory to Parent), and Parent will cooperate in good faith (and shall be permitted to participate at Parent's expense) in such defense; provided, however, that the Stockholder Agent shall not be entitled to assume control of the defense of any Third Party Claim that (i) could reasonably be expected to have any impact on the ongoing operations or on behalf goodwill of an Indemnified Personthe Surviving Corporation or Parent, the Purchaser Intellectual Property or the Software or (ii) could reasonably be expected to result in Losses in excess of the Escrow Fund. Parent shall have the right in its sole discretion to conduct the defense of and to settle any Third Party Claim contemplated by clause (i) or resolve (ii) above; provided, however, that if Parent settles any such claim Third Party Claim without the Stockholder Agent's written consent (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheldwithheld or delayed), conditioned Parent may not make a claim against the Escrow Fund with respect to the amount of Losses incurred by Parent in such settlement; provided, further, that if the Stockholder Agent settles any Third Party Claim without Parent's written consent (which consent shall not be unreasonably withheld or delayed and which delayed), such settlement shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matternull and void. In the event that the Seller Stockholder Agent has consented to any such settlement or resolutionsettlement, the Seller Stockholder Agent shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII VIII to the amount of any claim by or on behalf of any Indemnified Person Parent against the Escrow Fund with respect to the amount of Losses incurred by Parent in such settlement or resolutionas consented to by the Stockholder Agent.

Third Party Claims. In the event that the Purchaser Acquiror becomes aware of a third-party claim which the Purchaser Acquiror believes may result in a claim against the Purchaser Escrow Fund by or on behalf of an Indemnified Person, the Purchaser Acquiror shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser Acquiror in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which to the Purchaser may seek extent it is determined that Acquiror is entitled to indemnification pursuant to a claim made hereunder)Section 8.2. The Seller Effective Time Holders’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the SellerEffective Time Holders’ Agent, which such consent shall not to be unreasonably unreasonably, withheld, conditioned or delayed delayed, and which shall be deemed to have been given unless the Seller Effective Time Holders’ Agent shall have objected within thirty (30) days after a written request for such consent by the PurchaserAcquiror, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such mattermatter subject to the Authority Limitation. In the event that the Seller Effective Time Holders’ Agent has consented to any such settlement or resolution, neither the Seller Effective Time Holders’ Agent nor the Effective Time Holders shall not have any power or authority to object under this Section 7.4 8.8 or any other provision of this Article VII ARTICLE VIII to the amount of any claim by or on behalf of any 52 Indemnified Person against the Escrow Fund for indemnity with respect to such settlement or resolutionresolution (solely to the extent of the funds available in Escrow Fund).

Third Party Claims. In Promptly after the event that receipt by any Parent Indemnitee of notice of the Purchaser becomes aware commencement of any action against such Parent Indemnitee by a thirdthird party, such Parent Indemnitee shall give the Shareholder Representative written notice thereof in reasonable detail in light of the circumstances then known to such Parent Indemnitee. The failure to give such notice shall not relieve the Shareholder Representative from any obligation hereunder except where, and then solely to the extent that, such failure actually and materially prejudices the rights of the Shareholder Representative. If the claim (x) (I) is subject to the Basket and in excess thereof and (II) is not more than (or is not reasonably expected to be more than) 110% of the then-party claim which remaining Indemnity Escrow Amount or (y) is not subject to the Purchaser believes may result in a claim against Basket or limited by the Purchaser by or on behalf of an Indemnified PersonIndemnity Escrow Amount, the Purchaser Shareholder Representative shall have the right to defend such claim, with such costs to be deducted from the Indemnity Escrow and with counsel of its choice reasonably satisfactory to Parent Indemnitee, provided that (i) such claim does not seek an injunction or other equitable relief as a primary remedy, and is not a criminal claim and (ii) the Shareholder Representative conducts the defense of such claim actively and diligently. If the Shareholder Representative assumes the defense of such claim, Parent Indemnitee agrees to reasonably cooperate in such defense so long as Parent Indemnitee is not materially prejudiced thereby. So long as the Shareholder Representative is conducting the defense of such claim actively and diligently, Parent Indemnitee may retain separate co-counsel at its sole discretion cost and expense and may participate in the defense of such claim. Neither the 56 Shareholder Representative nor any Parent Indemnitee will consent to the entry of any judgment or enter into any settlement with respect to such claim without the prior written consent of the other (which consent will not be unreasonably withheld or delayed, provided that such consent shall be granted in connection with any settlement (A) containing a full release of the party from whom such consent is so requested and (B) in the case of a consent from a Parent Indemnitee, involving only monetary damages fully paid by the Shareholders or from the Indemnity Escrow Amount). Notwithstanding the foregoing, a Parent Indemnitee shall be entitled to participate with separate counsel at the expense of the Company Equityholders if (i) so requested by Shareholder Representative or (ii) in the reasonable opinion of counsel to Parent Indemnitee, a conflict or potential conflict exists between the Company Equityholders and Parent Indemnitee. In the event the claim is subject to recovery only from the Indemnity Escrow Amount but is more than (or is reasonably expected to be more than) 110% of the amount then remaining thereunder, or Shareholder Representative does not or ceases to conduct the defense of and to settle or resolve any such claim (actively and the costs and expenses incurred by the Purchaser in connection with such defensediligently, settlement or resolution (including reasonable attorneys’ feesParent Indemnitee may defend against and, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the prior written consent of the Seller, Shareholder Representative (which consent shall not be unreasonably withheldwithheld or delayed), conditioned or delayed and which shall be deemed consent to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution entry of any judgment or enter into any settlement with respect to, such claim. Regardless of which party shall assume the defense of such claim, each party shall provide to the other parties on request all information and documentation reasonably necessary to support and verify any Losses which give rise to such claim with any third-party claimant for indemnification and shall be determinative of the existence of provide reasonable access to all books, records and personnel in their possession or amount of Indemnifiable Damages relating to under their control which would have a bearing on such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionclaim.

Third Party Claims. In the event that the Purchaser becomes aware If Xxxxx receives written notice of a third-party claim which the Purchaser that Xxxxx believes may result in a claim against the Purchaser Liability Claim by or on behalf of an Indemnified Person, Buyer will notify the Purchaser shall Holder Representative in writing of such third-party claim and will provide a copy of any notice or other documentation submitted by the Third Party making such third-party claim and, if the Indemnitors could have any liability hereunder with respect to such third-party claim, (i) provide the Holder Representative the opportunity to participate at the Indemnitors’ cost in, but not direct or conduct, any defense of such claim, and (ii) keep the Holder Representative reasonably informed about the progress of such third-party claim and will consider in good faith recommendations made by the Holder Representative with respect to the defense of such third party claim. The Holder Representative will not be provided such opportunity to the extent that Buyer reasonably determines in good faith that such participation could result in the loss of any attorney-client privilege or right under the work-product doctrine of Buyer or any Indemnified Person in respect of such claim. The Holder Representative’s participation will be subject to Xxxxx’s right to control such defense. Buyer will have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with but if the settlement is without the written consent of the SellerHolder Representative, which consent shall the settlement will not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such mattermatter or whether such Losses are indemnifiable by the Indemnitors hereunder. In If the event that the Seller has consented Holder Representative consents in writing to any such settlement or resolutionsettlement, then neither the Seller shall not Holder Representative nor any Indemnitor will have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount or validity of any claim by or on behalf of any Indemnified Person for indemnity with respect to such settlement. The Holder Representative will be deemed to have been given consent to a settlement if the Holder Representative has not objected within twenty (20) days after the Holder Representative’s receipt of a written request for consent to such settlement delivered by Xxxxx. Notwithstanding any other provision of this Agreement, any reasonable and documented out-of-pocket costs and expenses of investigation or resolutiondefense, including court costs and reasonable attorneys’ fees, incurred or suffered by the Indemnified Persons in connection with any third-party claim alleging matters that would constitute the failure of a representation or a warranty set forth herein to be true and correct or be the basis of a claim for any other matter specified in Section 6.2, whether or not it is ultimately determined that there was such a failure to be true and correct or basis for a claim, will constitute Losses subject to indemnification under Section 6.2 (subject to such other limitations set forth in this Section 6.8).

Third Party Claims. In the event that the Purchaser Parent becomes aware of a thirdThird-party claim which the Purchaser Party Claim that Parent in good faith believes may result in a claim against the Purchaser for Losses by or on behalf of an Indemnified PersonParty, the Purchaser Parent shall have the right in its sole discretion to determine and conduct the defense of and and, subject to the proviso hereto, to settle or otherwise resolve any such claim (Third-Party Claim, and the costs and expenses incurred by the Purchaser Parent or its Affiliates in connection with such defense, settlement enforcement, settlement, or resolution (including reasonable out-of-pocket attorneys’ fees, other professionals’ and experts’ fees fees, and court or arbitration costs) shall be included in the Indemnifiable Damages Losses for which the Purchaser may seek Parent shall be entitled to receive indemnification pursuant to a claim an Indemnification Claim made hereunder, and such costs and expenses shall constitute Losses subject to indemnification under Section 7.02 regardless of whether it is ultimately determined that such Third-Party Claim arose out of, resulted from, or was in connection with a matter listed in Section 7.02; provided, however, that Indemnified Parties shall not agree to any settlement or resolution of any such Third-Party Claim without the prior written consent of the Shareholder Representative (which consent shall not be unreasonably withheld, conditioned, or delayed and which consent shall be deemed to have been given unless the Shareholder Representative shall have objected within thirty (30) days after a written request therefor by Parent). The Seller Shareholder Representative shall have the right to receive receive, and Parent shall reasonably promptly provide to the Shareholder Representative, copies of all pleadings, notices notices, and communications with respect to the thirdsuch Third-party claim Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person Party, and Parent shall keep the Shareholder Representative reasonably apprised of the status of such Third-Party Claim and the defense thereof, and shall be entitled, consider in good faith recommendations made by the Shareholder Representative with respect thereto. The Shareholder Representative and its Affiliates may participate in any Third-Party Claim or any action related to such Third-Party Claim at its own cost and expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Shareholder Representative has consented to the amount of any settlement or resolution by Parent of any such Third-Party Claim, or if the Shareholder Representative shall have been determined by a court of competent jurisdiction to have unreasonably withheld, conditioned, or delayed its consent to the amount of any such settlement or resolution, neither the Seller Shareholder Representative nor any Shareholder shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII 7 to the amount of any claim Indemnification Claim by or on behalf of any Indemnified Person Party for indemnity with respect to such settlement or resolution.

Third Party Claims. In the event that the Purchaser Acquirer becomes aware of a thirdclaim by a third party (a “Third-party claim which the Purchaser Party Claim”) that Acquirer in good faith believes may result in a claim against the Purchaser for Indemnifiable Damages by or on behalf of an Indemnified Person, the Purchaser Acquirer shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim Third-Party Claim (and the costs and expenses incurred by the Purchaser Acquirer in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek Acquirer shall be entitled to receive indemnification pursuant to a claim made hereunder, and such costs and expenses shall constitute Indemnifiable Damages subject to indemnification under Section 8.2 regardless of whether it is ultimately determined that such Third-Party Claim arose out of, resulted from or was in connection with a matter listed in Section 8.2). The Seller Stockholders’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to the thirdsuch Third-party claim Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledPerson, at its expensesubject to execution by the Stockholders’ Agent of Acquirer’s (and, to participate inif required, but not to determine or conduct, any defense of the thirdsuch third party’s) standard non-party claim or settlement negotiations with respect disclosure agreement to the third-party claimextent that such materials contain confidential or propriety information. However, except Acquirer shall have the right in its sole discretion to determine and conduct the defense of any Third-Party Claim and the settlement, adjustment or compromise of such Third-Party Claim. Unless otherwise consented to in writing in advance by Acquirer in its sole discretion, the Stockholders’ Agent and its Affiliates may not participate in any Third-Party Claim or any action related to such Third-Party Claim (including any discussions or negotiations in connection with the consent settlement, adjustment or compromise thereof). In the event that the Stockholders’ Agent has consented to the amount of the Seller, any settlement or resolution by Acquirer of any such claim (which consent shall not be unreasonably withheld, conditioned or delayed and which consent shall be deemed to have been given unless the Seller Stockholders’ Agent shall have objected within thirty (30) 20 days after a written request for such therefor by Acquirer), or if the Stockholders’ Agent shall have been determined to have unreasonably withheld, conditioned or delayed its consent by to the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, neither the Seller Stockholders’ Agent nor any Converting Holder shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII VIII to the amount of any claim by or on behalf of any Indemnified Person against the Escrow Fund for indemnity with respect to such settlement or resolution.

Third Party Claims. In the event that the Purchaser Acquiror becomes aware of a claim by a third-party claim which the Purchaser (a “Third Party Claim”) that Acquiror in good faith believes may result in a claim against under Section 8.2, Acquiror shall notify the Purchaser by or on behalf Shareholder as promptly as practicable after becoming aware of such claim; provided, that, no delay in providing such notice shall affect an Indemnified PersonParty’s rights hereunder, unless and only to the Purchaser extent the Shareholder is actually and materially prejudiced thereby. Acquiror shall have the right in its sole discretion to determine and conduct the defense of and to settle or resolve any such claim (Third Party Claim and the costs and expenses incurred settlement, adjustment or compromise of such Third Party Claim; provided, that, the Shareholder shall have the right to participate in, but not to determine or conduct, such settlement or defense through counsel chosen by the Purchaser Shareholder, at its sole cost and expense with respect to any Third Party Claim where the amount in connection with controversy is in excess of Two Hundred and Fifty Thousand Dollars ($250,000) and only to the extent that Acquiror determines that such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included participation could not result in the Indemnifiable Damages for which loss of any attorney-client privilege or right under the Purchaser may seek indemnification pursuant to a claim made hereunder)work-product doctrine of Acquiror, Company or any Indemnified Party in respect of such claim. The Seller Shareholder shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim such Third Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledParty, at its expensesubject to execution by the Shareholder of Acquiror’s (and, to participate inif required, but not to determine or conduct, any defense of the thirdsuch third party’s) standard non-party claim or settlement negotiations with respect disclosure agreement to the third-party extent that such materials contain confidential or proprietary information. Any costs and expenses of investigation or defense, including court costs and reasonable attorneys’ fees, incurred or suffered by the Indemnified Party in connection with any Third Party Claim alleging matters that would constitute the failure of a representation or a breach of warranty to be true and correct, or be the basis of a claim for any other matter specified in Section 8.2, whether or not it is ultimately determined that there was such a failure to be true and correct or basis for a claim, shall constitute Losses subject to indemnification under Section 8.2. However, except with the consent of the Seller, which consent This Section 8.6 shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented apply to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionThird Party Claim involving a Tax Authority.

Third Party Claims. In If the event claim specified in the Claim Notice relates to a third-party claim, the indemnifying person shall have 15 days after its receipt of the Claim Notice to notify the indemnified person whether the indemnifying person agrees that the Purchaser becomes aware of claim is subject to indemnification pursuant to this Section 12 and whether the indemnifying person elects to defend such third-party claim at its own expense. If the claim relates to a third-party claim which that the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified Personindemnifying person elects to defend, the Purchaser indemnifying person shall have the right in its sole discretion to conduct control the defense or settlement of and to settle or resolve any such the claim (and the costs indemnified person shall not consent to the entry of any judgement or settle the claim and expenses incurred by the Purchaser in connection shall reasonably cooperate with such defensedefense or settlement. The indemnified person shall, settlement or resolution however, be entitled to (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costsa) shall be included participate in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to defense or settlement of such a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to through its own counsel and at its own expense and (b) approve or disapprove any proposed settlement that would impose a duty or obligation on the extent that receipt indemnified person. No settlement of a claim shall be made without the approval of the indemnified party regardless of who is defending such documents claim. If the indemnifying person does not affect any privilege relating timely elect to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the defend a third-party claim. However, except or if the indemnifying person fails to conduct such defense with reasonable diligence, the consent indemnified party may conduct the defense of, or settle, such claim at the risk and expense of the Seller, which consent shall indemnifying person. If the indemnifying person does not be unreasonably withheld, conditioned or delayed and which shall be deemed timely elect to have been given unless the Seller shall have objected within thirty (30) days after defend a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative claim, it can later assume the defense of the existence of or amount of Indemnifiable Damages relating to such matterclaim. In the event that the Seller has consented to any such settlement or resolutionevent, the Seller shall not have any power or authority indemnifying person will reimburse the indemnified person for all costs and expenses of defense (including attorneys' fees) incurred by the indemnified person to object under Section 7.4 or any other provision of this Article VII to defend the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionthrough the date the defense is assumed.

Third Party Claims. In Within ten Business Days after an Indemnitee receives written notice of the event that the Purchaser becomes aware commencement of a third-any Proceeding by any third party claim which the Purchaser such Indemnitee reasonably believes may result in give rise to a claim for indemnification from an Indemnitor hereunder, such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under this Article X, notify such Indemnitor in writing in reasonable detail of such Proceeding and include with such notice copies of all notices and documents (including court papers) served on or received by the Purchaser by Indemnitee from or on behalf of an Indemnified Personsuch third party. Upon receipt of such notice, the Purchaser Indemnitor shall have be entitled to participate in such Proceeding, or, by giving written notice to the right in its Indemnitee to assume the defense thereof at the Indemnitor's sole discretion expense, with counsel reasonably satisfactory to conduct the Indemnitee. After notice to the Indemnitee of the Indemnitor's election to assume the defense of and such Proceeding, the Indemnitor shall not be liable to settle the Indemnitee under this Article X for any legal or resolve any such claim (and the costs and other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof other than reasonable costs of investigation, provided that if within twenty days after receiving written notice from the Indemnitee (i) the Indemnitor fails to take reasonable steps necessary to defend diligently such Proceeding or (ii) the Indemnitor has not undertaken fully to indemnify the Indemnitee in respect of all Costs relating to 147 155 the matter, the Indemnitee may assume its own defense, settlement and the Indemnitor will be liable for all reasonable costs or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court expenses paid or arbitration costs) shall be included incurred in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)connection therewith. The Seller shall have Indemnitor will not enter into any settlement of any Proceeding without the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the prior written consent of the SellerIndemnitee, which consent shall not be unreasonably withheld, conditioned . If a firm offer is made to settle a Proceeding without leading to liability or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after creation of a written request for such consent by financial or other obligation on the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative part of the existence of or amount of Indemnifiable Damages relating Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnitor desires to accept and agree to such matter. In the event that the Seller has consented to any such settlement or resolutionoffer, the Seller shall Indemnitor will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten Business Days after receipt of such notice, the Indemnitee may continue to contest or defend such Proceeding and, in such event, the maximum liability to the Indemnitor as to such Proceeding will not have any power or authority to object under Section 7.4 or any other provision of this Article VII to exceed the amount of any claim such settlement offer, plus costs and expenses paid or incurred by the Indemnitee through the end of such ten Business Day period. Unless it has been conclusively determined through a final judicial determination (or on behalf of any Indemnified Person settlement tantamount thereto) that the Indemnitor is not liable to the Indemnitee under this Section 10.2(d), the Indemnitee shall act reasonably and in accordance with its good faith business judgment with respect to such defense, and shall not settle or compromise any such Proceeding (i) unless such 148 156 settlement or resolutioncompromise includes an unconditional release of the Indemnitor and the Indemnitee from all liability arising out of such Proceeding, and (ii) without the consent of the Indemnitor, which consent shall not be unreasonably withheld or delayed. The parties hereto agree to render to the others such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such Proceeding, including providing relevant documentation to the other parties and making employees available on a mutually convenient basis to provide additional information and explanation of any relevant materials or to testify in or with respect to such Proceeding.

Third Party Claims. (i) In the event that a Seller or the Purchaser Buyer becomes aware of an assertion, demand, proceeding or claim (a third-party claim which the Purchaser believes may result in a claim against the Purchaser “Third Party Claim”), by or on behalf of an Indemnified any Person, that may give rise to indemnification hereunder, then such party shall promptly notify the Purchaser Buyer or Seller Designated Representative, as applicable in writing and in reasonable detail; provided that no delay in providing such notification shall affect the Indemnified Parties’ right to indemnification hereunder. The Buyer shall have the right (but not the obligation) in its sole discretion to assume and conduct the defense of of, and to settle or resolve resolve, any such claim Third Party Claim. Each Seller (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costsi) shall be included cooperate with the Buyer in the Indemnifiable Damages defense of such Third Party Claim and make available to the Buyer any documents, materials and other information in its possession or control that may be necessary for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller defense of such Third Party Claim, (ii) shall have the right to receive copies of all material pleadings, notices and communications with respect to the third-party claim Third Party Claim to the extent that receipt of such documents does not affect any privilege or trade secrets relating to any Indemnified Person Party and (iii) shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim Third Party Claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, Seller Designated Representative (which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Designated Representative shall have objected within thirty (30) 15 days after a written request for such consent by the PurchaserBuyer), no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such matter. In the event that the Seller Designated Representative has consented to any such settlement or resolutionsettlement, the no Seller shall not have any power or authority to object under (including pursuant to Section 7.4 or any other provision of this Article VII 6.15) to the amount of any claim by or on behalf of any Indemnified Person for indemnity with respect to such settlement settlement. Each Seller hereby irrevocably constitutes and appoints the Seller Designated Representative as its true and lawful agent and attorney-in-fact with full power and authority to act, including full power of substitution, in its name or resolutionon its behalf with respect to any and all matters arising from or in any way relating to this Agreement or the transactions contemplated hereby, including, to do all things and perform all acts required or deemed advisable, in the opinion of the Seller Designated Representative in its sole discretion, in connection with the transactions contemplated by this Agreement and the Escrow Agreement. The Seller Designated Representative shall have the power to enforce the obligations, covenants and agreements of each Seller under this Agreement and the Escrow Agreement. Without limiting the generality of the foregoing, (a) any communication or other delivery validly delivered to the Seller Designated Representative shall be deemed to have been validly delivered by or to each of the 86 Sellers, (b) any waiver of any provision of this Agreement or consent, or compromise of any claim arising from or relating to this Agreement and the Escrow Agreement, by the Seller Designated Representative shall be binding upon each and every Seller, and (c) the Seller Designated Representative is hereby authorized to execute for and on behalf of each Seller (i) any amendment to this Agreement and the Escrow Agreement or (ii) any agreement, certificate, document or instrument contemplated hereby or thereby. The Buyer shall be entitled to rely (without investigation) on any action taken by the Seller Designated Representative as being taken by the Seller Designated Representative for itself and on behalf of each of the Sellers, and fully authorized by each of the Sellers. The Sellers or the Seller Designated Representative may not, under any circumstances whatsoever, settle, adjust or compromise any such Third Party Claim without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed).

Third Party Claims. In the event that the Purchaser becomes aware of a ------------------ third-party claim which the Purchaser believes may result in a demand against the Escrow Fund, Purchaser shall promptly notify the Shareholders' Representative of such claim, and the Shareholders' Representative, as representative for the Shareholders, shall be entitled, at his expense (which expense shall pursuant to and subject to the limitations set forth in Section 1.7(f) be payable out of the Escrow Fund), to participate in any defense of such claim. If the amount in controversy in connection with any third-party claim shall be less than the value of the Escrow Shares remaining in the Escrow Fund (determined in accordance with Section 8.2(d)) and the Shareholders' Representative acknowledges in writing to Purchaser that if the allegations in such claim are in fact true then any liability arising from the adjudication or other settlement of such claim would be for the account of the Shareholders and would be a valid claim against the Purchaser by or on behalf Escrow Fund, then the Shareholders' Representative shall be entitled to assume the defense of an Indemnified Personsuch claim and, if at the time any settlement of such claim shall be proposed, the amount in controversy shall continue to be less than the value of the Escrow Shares remaining in the Escrow Fund (determined in accordance with Section 8.2(d)), shall have the power to settle such claim in an amount not to exceed such remaining value. If the Shareholders' Representative is not entitled to or chooses not to assume the defense of any such claim, Purchaser shall consult with and attempt to solicit the consent of the Shareholders' Representative prior to and in connection with any settlement of any such claim, but Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim. If any such claim (and the costs and expenses incurred by the Purchaser in connection with such defenseis, settlement or resolution (including reasonable attorneys’ feeshowever, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with settled without the consent of the SellerShareholders' Representative and Purchaser seeks to recover the amount of the settlement by claiming against the Escrow Fund, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant claimants shall not alone be determinative of the existence of or amount of Indemnifiable Damages relating to any claim against the Escrow Fund and the Shareholders' Representative may dispute such matteramount through the process provided by Section 8.2(f). In the event that the Seller Shareholders' Representative has consented in writing to any such settlement or resolutionand acknowledged that the claim by Purchaser is a valid claim against the Escrow Fund, the Seller Shareholders' Representative shall not have any no power or authority to object under Section 7.4 or any other provision of this Article VII VIII to the amount of any claim by or on behalf of any Indemnified Person Purchaser against the Escrow Fund with respect to such settlement or resolutionsettlement.

Third Party Claims. In the event that the Purchaser Parent becomes aware of a third-third party claim (a “Third Party Claim”) which the Purchaser Parent in good faith believes may will result in a claim against an Indemnification Claim pursuant to this Article VII, Parent shall notify the Purchaser by or Securityholder Representative of such Third Party Claim, and the Securityholder Representative shall be entitled on behalf of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitledIndemnifying Parties, at its their expense, to participate in, but not to determine or conduct, any the defense of such Third Party Claim. The failure to so notify the third-party claim or settlement negotiations Securityholder Representative shall not relieve the Indemnifying Parties of any liability unless, and only to the extent, the Securityholder Representative demonstrates that the defense of such action is actually and materially prejudiced thereby. Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any Third Party Claim; provided, however, that Parent shall seek the prior written consent of the Securityholder Representative with respect to the third-party claim. However, except with the consent of the Sellerany settlement, which consent shall not be unreasonably withheld, conditioned or delayed and which delayed. The written consent of the Securityholder Representative with respect to any settlement of any Third Party Claim shall be deemed to have been given unless the Seller Securityholder Representative shall have objected within thirty ten (3010) days Business Days after a written request for such consent by Parent. Any such written consent by the Purchaser, no settlement or resolution Securityholder Representative shall represent the agreement of any such claim with any third-party claimant Securityholder Representative that the Losses incurred in connection therewith shall be determinative indemnifiable hereunder and, for the avoidance of the existence of or amount of Indemnifiable Damages relating to such matterdoubt, represents Loss Amounts. In the event that the Seller Securityholder Representative has consented to any such settlement (or resolutionin the event that written consent to settlement has been unreasonably withheld, conditioned or delayed), neither the Seller Securityholder Representative nor the Indemnifying Parties shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim Indemnification Claim by or on behalf of any Indemnified Person Parent against the Indemnifying Parties with respect to such settlement. If such written consent is not given (unless such consent was unreasonably withheld, conditioned or delayed, in which case the preceding sentence shall apply), Parent may agree to any such settlement or resolutioncompromise, and may deliver a Claim Notice therefor, and the resolution of the Indemnification Claim set forth therein (including whether and to what extent Parent or any other Indemnified Party is entitled to indemnification under this Agreement for such Indemnification Claim) shall remain subject to this Article VII.

Third Party Claims. In the event that the Purchaser Parent or any other Indemnified Party becomes aware of a third-party claim which the Purchaser (including any action or Proceeding commenced or threatened to be commenced by any third-party) that Parent or any other Indemnified Party reasonably believes may result in indemnification pursuant to Section 8.1, Parent shall promptly notify the Stockholders’ Representative in writing of such claim and shall also deliver a copy of the Claim Notice to the Escrow Agent contemporaneously with its delivery to the Stockholders’ Representative. The Claim Notice shall be accompanied by reasonable supporting documentation submitted by the Parent and shall describe (to the extent known by Parent) the facts constituting the basis for such claim against and the Purchaser amount of the claimed Damages; provided, however, that no delay or failure on the part of the Parent in delivering a Claim Notice shall relieve the Participating Securityholders from any liability hereunder except to the extent of any damage or liability caused by or on behalf arising out of an Indemnified Personsuch delay or failure. Within twenty (20) business days after receipt of any Claim Notice, Parent may, upon written notice thereof to the Purchaser shall have the right in its sole discretion to conduct Stockholders’ Representative, assume control of the defense of the claim referred to therein. If Parent does not elect to so assume control of the defense of such claim, the Stockholders’ Representative may elect to control the defense of such claim with counsel reasonably satisfactory to Parent. The party not controlling the defense of such claim (the “Non-Controlling Party”) may participate therein at its own expense. Should the Stockholders’ Representative elect to control the defense of such claim, and for so long as the Stockholders’ Representative continues to settle control the defense of such claim, the Stockholders’ Representative shall not be liable to Parent or resolve any other Indemnified Party for legal expenses subsequently incurred by the Parent or any other Indemnified Party, as applicable, in connection with the defense thereof. The party controlling the defense of such claim (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such claim and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such claim. Neither Parent nor the Stockholders’ Representative shall agree to any settlement of, or the entry of any judgment arising from, any such claim (and without the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the prior written consent of the Sellerother of such parties, which consent shall not be unreasonably withheldwithheld or delayed; provided, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaserhowever, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented consent of Parent shall not be required with respect to any such settlement of a claim controlled by the Stockholders’ Representative if the Stockholders’ Representative agrees in writing to pay or resolution, the Seller shall not have cause to be paid any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect amounts payable pursuant to such settlement (subject to the limitation specified in Section 8.5) and such settlement or resolutionjudgment includes a complete release of Parent from further liability in form and substance reasonably acceptable to Parent, there is no finding or admission of any violation of Law by Parent and no effect on any other action or claims of a similar nature that may be made against Parent, and the sole form of relief is monetary damages that shall be paid in full from the Escrow Fund.

Third Party Claims. In the event that the Purchaser Acquirer becomes aware of a third-party claim which the Purchaser believes that Acquxxxx xxxieves may result in a claim against the Purchaser for indemnification pursuant to this Article VIII by or on behalf of an Indemnified Person, the Purchaser Acquirer shall have the right in its sole discretion to conduct the defense of of, and to settle or resolve resolve, any such claim, including paying and/or agreeing to pay, in settlement or resolution of such claim, any amounts to the third party making such claim (and the such amounts, collectively, a “Settlement Payment”). The reasonable out-of-pocket costs and expenses incurred by the Purchaser Acquirer in connection with such any investigation, defense, settlement or resolution of such claim and the enforcement and protection of its rights under this Agreement in respect thereof (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) (collectively, “Defense Costs,” which, for the avoidance of doubt, do not include a Settlement Payment itself), shall be included in the constitute Indemnifiable Damages for which the Purchaser may seek Indemnified Persons shall be indemnified to the extent an indemnification pursuant to a claim therefor is made hereunder)under this Article VIII, provided that the (i) Acquirer and Holders’ Agent agree in writing that such Defense Costs constitute Indemnifiable Damages or (ii) it is ultimately determined that such third-party claim is itself indemnifiable under Section 8.2. The Seller Holders’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to the such third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, subject to participate in, but not execution by the Holders’ Agent of Acquirer’s standard non-disclosure agreement to determine the extent that such materials contain confidential or conduct, proprietary information. In the event that Acquirer determines to settle or resolve any defense of the such third-party claim or settlement negotiations with respect to the third-party claim. Howeverand make a Settlement Payment in connection therewith, except with Acquirer shall seek the consent of the SellerHolders’ Agent to such Settlement Payment. If the Holders’ Agent (i) has consented to such Settlement Payment or (ii) unreasonably withholds, which conditions or delays giving such consent shall not be unreasonably withheld, conditioned or delayed and which to such Settlement Payment (provided that such consent shall be deemed to have been given unless the Seller Holders’ Agent shall have objected within thirty (30) 25 days after a written request for such consent by the PurchaserAcquirer), no settlement or resolution of any such claim with any third-party claimant shall be determinative of then the existence of or and amount of Indemnifiable Damages relating with respect to such matter. In Settlement Payment shall be determinative and binding upon the event that Converting Holders and neither the Seller has consented to Holders’ Agent nor any such settlement or resolution, the Seller Converting Holder shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim recovery by or on behalf of any Indemnified Person (against the Holdback Fund or otherwise) for any Indemnifiable Damages claimed with respect to such settlement Settlement Payment. If the Holders’ Agent has not consented to such Settlement Payment and such consent was not either (i) unreasonably withheld, conditioned or resolutiondelayed or (ii) deemed given for failure to object within 15 days after a written request therefor, then the existence and amount of Indemnifiable Damages with respect to such Settlement Payment shall be determined in the manner applicable to indemnification claims made pursuant to this Article VIII.

Third Party Claims. In If the event that Acquiror is subject to Indemnifiable Damages or has otherwise properly delivered an Officer’s Certificate to the Purchaser becomes aware of Shareholders’ Agent in accordance with Section 9.5 hereof with respect to a third-third party claim which the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified Personclaim, the Purchaser Acquiror shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser Acquiror in connection with such defense, settlement or resolution (including reasonable attorneys’ legal fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser Acquiror may seek indemnification pursuant to a claim made hereunder); provided, however, that Acquiror shall not settle or resolve such claim without the prior written consent of the Shareholders’ Agent, which consent shall not be unreasonably withheld, conditioned or delayed. The Seller Shareholders’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the prior written consent of the SellerShareholders’ Agent, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Shareholders’ Agent shall have objected within thirty (30) [***] days after a written request for such consent by the PurchaserAcquiror, no settlement or resolution by Acquiror of any claim that gives rise to a claim against such claim with any third-party claimant applicable Escrow Fund by or on behalf of an Indemnified Person shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Shareholders’ Agent has consented to any such settlement or resolution, or if the Seller Shareholders’ Agent shall not have been determined by a final non-appealable court order of a court of competent jurisdiction to have unreasonably withheld, conditioned or delayed its consent to any such settlement or resolution, neither the Shareholders’ Agent nor any Closing Company Shareholder shall have any power or authority to object under Section 7.4 9.6 or any other provision of this Article VII IX to the amount of any claim recovery by or on behalf of any Indemnified Person against the applicable Escrow Fund for the Indemnifiable Damages with respect to such settlement or resolutionresolution provided such recovery is otherwise in accordance with the terms and provisions of this Article IX.

Third Party Claims. In If any actual or threatened claim or demand by a third party (a “Third Party Claim”) is made against any Buyer Indemnitee, and if such Buyer Indemnitee intends to seek indemnity with respect thereto under this Article X, such Buyer Indemnitee shall, as soon as practicable, notify the event Sellers’ Representative of such Third Party Claim; provided that the Purchaser becomes aware failure to so notify the Sellers’ Representative shall not relieve the Seller Members of a third-party claim which the Purchaser believes may result in a claim against the Purchaser by or on behalf of an Indemnified Persontheir obligations hereunder, the Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim except to the extent that receipt the Seller Members are actually and materially prejudiced thereby. The notice of such documents does not affect any privilege relating a Third Party Claim shall include, based on the information then available to any Indemnified Person and shall be entitledBuyer, a summary in reasonable detail of the basis for the Third Party Claim. The Sellers’ Representative, on behalf of the Seller Members shall, at its sole expense, be entitled to participate in, but not to determine or conduct, in any defense of such Third Party Claim; provided, however, that Buyer shall have full control over the thirdlitigation, including settlement and compromise thereof, unless the primary remedy of such settlement or compromise is injunction or other non-party claim or settlement negotiations with respect monetary relief which is applicable to the third-party claim. HoweverSeller Members, except with in which case the Sellers’ Representative’s written consent of the Sellershall be required, which consent shall not be unreasonably withheld, conditioned or delayed delayed. Buyer shall have the right in its sole and absolute discretion whether to settle any Third Party Claim, and the amount of any settlement payment or extent of any other Liabilities incurred by way of such settlement, provided, that except with the consent of the Sellers’ Representative (which shall not be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaserunreasonably withheld, conditioned or delayed), no settlement or resolution of any such claim with any third-party claimant Third Party Claim shall be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such matter. matter or that a Buyer Indemnitee is entitled to indemnification pursuant to this Article X. In the event that settling any Third Party Claim, Buyer shall not be deemed to be an agent of, and shall have no duty, including, without limitation, any fiduciary duty, duty of loyalty, duty of good faith or duty of disclosure, to the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutionMembers.

Third Party Claims. In If any Buyer Indemnitee receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third Party Claim”) against such Buyer Indemnitee with respect to which a Seller Party is obligated to provide indemnification under this Agreement, Buyer Indemnitee shall give the Seller Representative reasonably prompt written notice of the Third Party Claim, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Seller Parties of their indemnification obligations, except and only to the extent that the Purchaser becomes aware Seller Parties forfeit rights or defenses by reason of a third-party claim which such failure. Such notice by Buyer Indemnitee shall describe the Purchaser believes Third Party Claim in reasonable detail, shall include copies of all material written evidence of the Third Party Claim and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may result be sustained by Buyer Indemnitee. The Seller Parties shall have the right to participate in, or by giving written notice from Seller Representative to Buyer Indemnitee, to assume the defense of any Third Party Claim at the Seller Parties’ expense and by the Seller Parties’ own counsel, and Buyer Indemnitee shall cooperate in a claim against good faith in such defense; provided, that the Purchaser Seller Parties shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of an Indemnified Person, the Purchaser shall have the right in its sole discretion to conduct the defense a Person that is a supplier or customer of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30y) days after a written request for such consent by the Purchaser, no settlement seeks an injunction or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matterother equitable relief against Buyer Indemnitees. In the event that the Seller has consented Parties assume the defense of any Third Party Claim, subject to Section 7.4(b), the Seller Parties shall have the right to take such action as they deem necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such settlement or resolution, Third Party Claim in the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or name and on behalf of Buyer Indemnitee. Buyer Indemnitee shall have the right to participate in the defense of any Indemnified Person Third Party Claim with respect counsel selected by it subject to the Seller Parties’ right to control the defense of the Third Party Claim. The fees and disbursements of such counsel shall be at the expense of the Seller Parties. If the Seller Parties elect not to compromise or defend such Third Party Claim, fail to promptly notify Buyer Indemnitee in writing of their election to defend as provided in this Agreement, or fail to diligently prosecute the defense of such Third Party Claim, Buyer Indemnitee may, subject to Section 7.4(b), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such settlement or resolutionThird Party Claim. The Seller Parties and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.

Third Party Claims. In If Buyer or the event that the Purchaser becomes aware Company receives written notice of a third-party claim which the Purchaser that Buyer reasonably believes may result in a claim against the Purchaser Liability Claim by or on behalf of an Indemnified Person, Buyer will notify the Purchaser Representative (or the applicable Indemnitor) of such third-party claim and provide the Representative (or the applicable Indemnitor) the opportunity to participate at his own cost in, but not direct or conduct, any defense of such claim, except that the Representative (or the applicable Indemnitor) shall not be provided such opportunity to the extent that Buyer determines in good faith that such participation would reasonably be likely to result in the waiver or other loss of any attorney-client privilege applicable to such documents or information or disclosure of attorney work product prepared by or for counsel for Buyer or any Indemnified Person in respect of such claim it being understood that the Buyer shall use its reasonable efforts to minimize the amounts of the possible Losses arising in relation thereto to the extent within its control. The Representative’s participation will be subject to Buyer’s right to control such defense. Buyer will have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and claim, but if the costs and expenses incurred by Representative does not consent in writing to the Purchaser in connection with settlement, the settlement will not be determinative of the amount of Losses relating to such defense, settlement matter or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) whether such Losses are indemnifiable Losses under this Article 6 that shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder). The Seller shall have the right to receive copies of all pleadings, notices and communications with respect eventually determined according to the third-party claim arbitration procedure provided under Section 7.13. If the Representative consents in writing to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Sellersettlement, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Representative shall have objected within thirty (30) days twenty Business Days after receipt of a written request for such consent by from Buyer, neither the Purchaser, no settlement or resolution of Representative nor any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not Indemnitor will have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount or validity of any claim by or on behalf of any Indemnified Person for indemnity with respect to such settlement or resolutionsettlement.

Third Party Claims. In case of any claim brought or threatened by a third party, including, but not limited to, claims brought by Tax or other Governmental Authorities, against Buyer or any companies of the event that the Purchaser becomes aware Group, which may qualify as a breach of a third-party claim Representation or Warranty made by Seller under Article 6 and which has given rise to an Indemnification Notice by Buyer made in accordance with Article 9.1.2 (a “Third Party Claim”), the Purchaser believes may result Seller shall have the right, at its option which shall be exercised in writing within fifteen (15) Business Days of the receipt of the Indemnification Notice, and at its own expense, to take the control of the defense, negotiation and settlement of such Third Party Claim, unless the amount to be indemnified to the Buyer for such Third Party Claim exceeds the Cap (in such event the Buyer shall take the exclusive control of the defense of the Third Party Claim and, by doing so, does not forfeit its right to receive indemnification from Seller under this Article 9.1). If the Seller decides to defend or settle a claim against Third Party Claim, it shall keep the Purchaser Buyer informed and shall consult with it and its advisors with respect thereto and shall act reasonably and in good faith taking into account reasonable comments from the Buyer. The Buyer shall in such case cause the Group Companies to execute all necessary documents to enable the Seller to act on their behalf and to cooperate with the Seller by (i) giving it and its designees reasonable access, at normal office hours and without disturbing the business and operations of the Group Companies, to all relevant records (provided such information shall be treated as strictly confidential in accordance with Article 10.1 and used solely for the defence of the Third Party Claim) and (ii) designating such legal counsel to defend them as the Seller shall indicate. The conduct of the defense of a Third Party Claim by the Seller shall be deemed to constitute an admission of liability to pay a Refund to the Buyer in respect of any loss resulting from such Third Party Claim. If the Seller decides not to defend or settle a Third Party Claim, the Buyer shall defend or otherwise deal with any such Third Party Claim in the best interests of the relevant Group Company and as if the Buyer was not entitled to the payment provided for herein. Furthermore, the Buyer will act reasonably and in its good faith judgment. In such case, the Buyer shall keep the Seller informed of the progress of the Third Party Claim and its defense, and shall with reasonable promptness provide the Seller with copies of all material notices, written communications and filings (including court papers) made by or on behalf of an Indemnified Person, any of the Purchaser shall have parties to the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a claim made hereunder)underlying claim. The Seller shall have the right to receive copies be consulted in respect of all pleadings, notices such Third Party Claim and communications to participate at its own expense and with counsel of its choice in the defense thereof and the Buyer shall afford the Seller and its counsel the opportunity to comment and the right to object (which right shall not be unreasonably exercised) with respect to the third-party claim to conduct of the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to Third Party Claim. Buyer shall not and shall procure that the third-party claim. However, except with Group Companies shall not settle any such claims without the prior written consent of the Seller, Seller which consent shall not be unreasonably withheld, conditioned withheld or delayed and which shall be deemed to have been given unless the Seller shall have objected within thirty (30) days after a written request for such consent by the Purchaser, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller has consented to any such settlement or resolution, the Seller shall not have any power or authority to object under Section 7.4 or any other provision of this Article VII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolutiondelayed.

Third Party Claims. In the event that the Purchaser Acquiror becomes aware of a third-party claim Action which the Purchaser believes may result in constitutes a matter for which either (a) an Indemnified Party is entitled to indemnification, compensation, or reimbursement under Section 8.2 or (b) if determined adversely to Acquiror or any other Indemnified Party, would provide a basis for a claim against under any of the Purchaser by or on behalf of an Indemnified PersonIndemnifiable Matters (each such claim, the Purchaser a “Third Party Claim”), Acquiror shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (claim, and the costs and expenses incurred by the Purchaser Acquiror in connection with the investigation and defense of such defense, settlement or resolution claim (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) (such costs and expenses, the “Defense Costs”) shall be included in the Indemnifiable Damages deemed Losses for which Acquiror is entitled to indemnification, compensation and reimbursement in accordance with and to the Purchaser may seek indemnification pursuant to a claim made hereunder)extent provided in this Article VIII regardless of the outcome of such Third Party Claim. The Seller Securityholder Representative shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim any Third Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person Party, subject to the execution by the Securityholder Representative of Acquiror’s (and, if required such third party’s) standard non-disclosure agreement to the extent such materials contain confidential or proprietary [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. information, and shall be entitled, at its expensethe expense of the Securityholder Representative (on behalf of Company Securityholders), to participate in, but not to determine or conduct, any defense of the third-party claim Third Party Claim or settlement negotiations with respect to the third-party claimThird Party Claim. However, except with the consent of the SellerSecurityholder Representative, which consent shall not be unreasonably withheld, conditioned conditioned, or delayed delayed, and which shall be deemed to have been given unless the Seller Securityholder Representative shall have objected within thirty (30) days after a written request for such consent by Acquiror, the Purchaser, no amount paid in the settlement or resolution of any such claim with any to the third-party claimant shall not be determinative of the existence of or amount of Indemnifiable Damages Losses relating to such matter. In the event that the Seller Securityholder Representative has consented to any such settlement or resolutionresolution and provided that such amounts do not exceed the limitations on indemnification set forth herein, neither the Seller Securityholder Representative nor the Company Securityholders shall not have any power or authority to object under Section 7.4 8.6(b) or any other provision of this Article VII VIII to the amount of any claim by or on behalf of any Indemnified Person Party against the Escrow Fund, the Total Earnout Consideration (if any) or directly against such Company Securityholders for indemnity with respect to such settlement or resolution.

Third Party Claims. In the event that the Purchaser Acquiror becomes aware of a third-party claim which the Purchaser Acquiror believes may result in a claim against the Purchaser Escrow Fund by or on behalf of an Indemnified Person, Acquiror shall promptly notify the Purchaser Shareholders’ Agent of such third-party claim. Acquiror shall have the right in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by the Purchaser Acquiror in connection with such defense, defense or settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser Acquiror may seek indemnification pursuant to a claim made hereunder). The Seller Shareholders’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the third-party claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the SellerShareholders’ Agent, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Seller Shareholders’ Agent shall have objected within thirty (30) 15 days after a written request for such consent by the PurchaserAcquiror, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Seller Shareholders’ Agent has consented to any such settlement or resolutionsettlement, neither the Shareholders’ Agent, Seller nor any Closing Holder shall not have any power or authority to object under Section 7.4 8.5 or any other provision of this Article VII VIII to the amount of any claim by or on behalf of any Indemnified Person against the Escrow Fund for indemnity with respect to such settlement or resolutionsettlement.