Common use of Claims for Indemnification Clause in Contracts

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceeding.

Claims for Indemnification. Promptly In connection with any indemnification provided pursuant to this Agreement, the indemnified party may make claims for indemnification by giving written notice thereof to the indemnifying party after receipt by any indemnified person of a it receives notice of a third-party claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such actionliability being asserted, but the omission failure to do so notify shall not relieve the indemnifying person will not relieve it party from any liability which it may have to any indemnified person under this Section 8 (except to the extent that it is materially prejudiced by the failure or delay in giving such omission materially notice. Such notice shall summarize the bases for the claim for indemnification and adversely affects any claim or liability being asserted by the indemnifying person’s ability to defend such actionthird party. Within fifteen (15) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case days after receiving any such action shall be brought against an indemnified personnotice, the indemnifying person party shall give written notice to the indemnified party stating whether it disputes the claim for indemnification and whether it will defend against any third-party claim or liability at its own cost and expense. If the indemnifying party fails to give notice that it disputes an indemnification claim within fifteen (15) days after the receipt of notice thereof, it shall be deemed to have accepted and agreed to indemnify the claim. The indemnifying party shall be entitled to participate therein, and, direct the defense against a third-party claim or liability with counsel selected by it (subject to the extent that it shall elect by written notice delivered to consent of the indemnified person promptly after receiving the aforesaid notice from such indemnified personparty, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person which consent shall not be liable unreasonably withheld) as long as the indemnifying party is conducting a good faith and diligent defense. The indemnified party shall at all times have the right to such indemnified person for any legal expenses subsequently incurred by such indemnified person fully participate in connection with the defense thereof, of a third-party claim or liability at its own expense directly or through counsel; provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel named parties to the action or proceeding include both the indemnifying party and the indemnified personparty, for and the indemnified party is advised that representation of both parties by the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereofwould be inappropriate under applicable standards of professional conduct, the indemnified person shall be entitled to retain its own party may engage separate counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person party. If no such notice of intent to dispute and defend a third-party claim or liability is given by the indemnifying party, or if such good faith and diligent defense is not being or ceases to be conducted by the indemnifying party, the indemnified party shall have approved the terms right, at the expense of the indemnifying party, to undertake the defense of such settlement; claim or liability (with counsel selected by the indemnified party), and to compromise or settle it, exercising reasonable business judgment. If the third-party claim or liability is one that by its nature cannot be defended solely by the indemnifying party, then the indemnified party shall make available such information and assistance as the indemnifying party may reasonably request and shall cooperate with the indemnifying party in such defense, at the expense of the indemnifying party. The indemnifying party shall have the right to settle any third-party claim or liability without the consent of the indemnified party provided that such settlement (i) fully releases the indemnified party from any liability and provides no admission of wrongdoing, and (ii) does not subject the indemnified party to any additional obligation, whether financial or otherwise. In the event that any such settlement does not meet the requirements of (i) and (ii) above, then the indemnified party must consent to such settlement in writing, which consent shall not be unreasonably withheld, conditioned or delayed. No The indemnified party shall use reasonable efforts to mitigate any loss for which the indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingmay be liable under its indemnification.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of a claim or A Party entitled to indemnification under this Article 7 (an “Indemnified Party”) shall give prompt written notification, with sufficient detail to allow the beginning of any action in respect of which indemnity receiving Party to make an assessment thereof, to the Party from whom indemnification is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify (the indemnifying person in writing of such claim or “Indemnifying Party”) of the commencement of such any action, but suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the omission assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to so notify the indemnifying person will give notice of a Third Party claim as provided in this Section 7.3 shall not relieve it from any liability which it may have to any indemnified person the Indemnifying Party of its indemnification obligation under this Section 8 (Agreement except and only to the extent that such omission materially and adversely affects Indemnifying Party is actually damaged as a result of such failure to give notice). Within *** days after delivery of such notification, the indemnifying person’s ability Indemnifying Party may, upon written notice thereof to defend the Indemnified Party, assume control of the defense of such action) , suit, proceeding or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such indemnified person. After notice defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party’s indemnification obligations, the Indemnifying Party shall reimburse the Indemnified Party for all reasonable and documented costs, including attorney fees, incurred by the Indemnified Party in defending itself within *** days after receipt of any invoice therefore from the indemnifying person Indemnified Party. The Party not controlling such defense may monitor and participate in the controlling Party’s defense at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such indemnified person of its election to assume the defense thereofaction, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereofsuit, provided, however, that if there exists proceeding or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereofclaim, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person Indemnifying Party shall be responsible for the reasonable fees and expenses of more than one separate counsel (together to the Indemnified Party in connection therewith. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Party not controlling such defense shall cooperate with the controlling Party and shall make available to the controlling Party all witnesses, information and materials in such Party’s possession or under such Party’s control relating thereto as are reasonably required by the controlling Party, subject to appropriate local counsel) provisions for all indemnified partiesthe protection of confidentiality. In no event The Indemnified Party shall not agree to any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shallaction, suit, proceeding or claim without the prior written consent of the indemnified personIndemnifying Party, effect which shall not be unreasonably withheld, delayed or conditioned. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim or CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK ***, HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION consent to any pending or threatened proceeding judgment in respect of which any indemnified person thereof that is or could have been not solely for monetary damages, that does not include a party complete and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person the Indemnified Party from all liability with respect thereto, that imposes any liability or obligation on claims the Indemnified Party, or that are acknowledges fault by the subject matter Indemnified Party without the prior written consent of such proceedingthe Indemnified Party, which consent shall not be unreasonably withheld.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of a claim or the beginning of any action in respect of which indemnity is A Person entitled to be sought against an indemnifying person pursuant to indemnification under this Section 8, such indemnified person 10.1 (an “Indemnified Party”) shall notify give prompt written notification to the indemnifying person in writing of such claim or Party from whom indemnification is sought (the “Indemnifying Party”) of the commencement of such any action, but suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the omission assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to so notify the indemnifying person will give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve it from any liability which it may have to any indemnified person the Indemnifying Party of its indemnification obligation under this Section 8 (Agreement except and only to the extent that such omission materially and adversely affects Indemnifying Party is actually damaged as a result of such failure to give notice). Within [***] days after delivery of such notification, the indemnifying person’s ability Indemnifying Party may, upon written notice thereof to defend the Indemnified Party, assume control of the defense of such action) , suit, proceeding or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such indemnified persondefense, the Indemnified Party shall control such defense. After notice from The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the indemnifying person to other Party advised of the status of such indemnified person of its election to assume action, suit, proceeding or claim and the defense thereof, such indemnifying person thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not be liable agree to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense settlement of such indemnifying person; providedaction, howeversuit, that no indemnifying person shall be responsible for proceeding or claim without the fees and expenses prior written consent of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved Indemnifying Party, which consent the terms of such settlement; provided that such consent Indemnifying Party shall not be unreasonably withheldwithhold, condition or delay. No indemnifying person shallThe Indemnifying Party shall not agree, without the prior written consent of the indemnified personIndemnified Party, effect which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any pending or threatened proceeding judgment in respect of which any indemnified person is or could have been thereof that does not include a party complete and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on claims that are the subject matter of such proceedingIndemnified Party.

Claims for Indemnification. Promptly after receipt by If any indemnified person of a notice of a claim or the beginning of any action Indemnitee shall believe that such Indemnitee is entitled to indemnification pursuant to this Article IX in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8any Damages, such indemnified person Indemnitee shall notify give the indemnifying person appropriate Indemnifying Party prompt written notice thereof. Any such notice shall set forth in writing reasonable detail and to the extent then known the basis for such claim for indemnification. The failure of such Indemnitee to give notice of any claim or of the commencement of such actionfor indemnification promptly, but within the omission periods specified by Section 9.02, shall not adversely affect such Indemnitee's right to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except indemnification hereunder unless and only to the extent that such omission materially and failure adversely affects the indemnifying person’s Indemnifying Party's ability to reasonably defend such actionclaim. Each such claim for indemnity shall expressly state that the Indemnifying Party shall have only the thirty (30) Business Day period referred to in the next sentence to dispute or from any liability otherwise than under this Section 8deny such claim. Subject The Indemnifying Party shall have thirty (30) Business Days following its receipt of such notice either to (a) acquiesce in such claim by giving such Indemnitee written notice of such acquiescence or (b) object to the provisions hereinafter statedclaim by giving such Indemnitee written notice of the objection. If (i) Indemnitee's notice clearly states that a failure by the Indemnifying Party to object to the claim within thirty (30) Business Days following its receipt shall entitle the Indemnitee to be indemnified, in case any and (ii) the Indemnifying Party does not respond within such action shall be brought against an indemnified personthirty (30) Business Day period, the indemnifying person such Indemnitee shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the be indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel for all Damages reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently and proximately incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable Indemnitee in respect of any amounts paid such claim subject to the limitations set forth in settlement of any action unless Section 9.02. If (i) the indemnifying person Indemnitee's notice does not clearly state that a failure by the Indemnifying Party to object to the claim within thirty (30) Business Days following its receipt shall have approved entitle the terms Indemnitee to be indemnified, and (ii) the Indemnifying Party does not respond within such thirty (30) Business Day period, Indemnitee claim shall be deemed rejected. If the Indemnifying Party objects to such claim in a timely manner, and such Indemnitee and the Indemnifying Party are unable to resolve their dispute within ten (10) Business Days following delivery of such settlement; provided that objection (or such consent shall not additional period of time as may be unreasonably withheld. No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder mutually agreed to by such indemnified personPersons), unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingclaim shall be submitted immediately to dispute resolution pursuant to Section 11.11.

Claims for Indemnification. Promptly after receipt by any indemnified person of If Parent delivers to Seller a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person for indemnification pursuant to this Section 8Article XII or Article XIII of the Merger Agreement (each, a “Claim” and each such indemnified person notice, a “Claim Notice”), Parent shall notify the indemnifying person in writing also send a copy of such claim or notice to the Escrow Agent, which notice shall include a certification by Parent that a copy of such notice has been delivered to Seller. Without limiting the Merger Agreement, each Claim Notice shall set forth the aggregate amount of the commencement of such action, but Damages (as defined in the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except Merger Agreement) claimed by Parent or an estimate thereof to the extent that then known (the “Indemnity Claim Amount”). If Seller desires to dispute such omission materially Claim, Seller shall deliver to Parent and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject Escrow Agent (which notice to the provisions hereinafter statedEscrow Agent shall include a certification by Seller that a copy of such notice has been delivered to Parent) written notice disputing such Claim (each a “Dispute Notice”) within thirty (30) calendar days following receipt by Seller of the applicable Claim Notice. If Seller timely delivers a Dispute Notice to Parent and the Escrow Agent regarding an applicable Claim, the Escrow Agent shall make payment with respect to such Claim only in case accordance with Joint Instructions delivered pursuant to Section 3.1 or a Final Order and Legal Opinion delivered pursuant to Section 3.2. Escrow Agent shall conclusively presume that any Claim Notice or Dispute Notice delivered to it was simultaneously delivered to Seller or Parent, as applicable. If no Dispute Notice is received by the Escrow Agent within such action 30-day period, then the Indemnity Claim Amount as set forth in the applicable Claim Notice shall be brought against an indemnified persondeemed established for purposes of this Agreement and the Merger Agreement and, on the first (1st) Business Day after the expiration of such 30-day period, the indemnifying person Escrow Agent shall be entitled pay to participate therein, and, Parent (or Parent’s designee) such Indemnity Claim Amount from (and only to the extent that it shall elect by written notice delivered to of) the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying personEscrowed Funds; provided, howeverthat before making such payment to Parent, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person Escrow Agent shall have approved the terms of such settlement; provided received from Parent written notice that such consent thirty (30) calendar day period has elapsed and that Parent has not received a Dispute Notice from Seller. The Escrow Agent shall not be unreasonably withheld. No indemnifying person shall, without inquire into or consider whether a Claim or Claim Notice complies with the prior written consent requirements of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingMerger Agreement.

Claims for Indemnification. Promptly after receipt by any indemnified person (a) If prior to the Closing Date the Buyer obtains actual knowledge of a notice of a claim or the beginning breach of any action representation, warranty or covenant made by the Sellers in respect this Agreement, which breach shall, in Buyer's good faith estimation, cost less than $500,000 to cure, then the Buyer shall promptly notify the Sellers thereof in writing. If such breach is capable of which indemnity being cured, the Sellers shall attempt to cure the same at Sellers' sole cost and expense. If the Sellers are unable to cure the same after reasonable and diligent efforts, or if the same is not capable of being cured, Buyer shall consummate the Agreement, and be entitled to be sought against an indemnifying person seek indemnification for any Damages suffered pursuant to Section 11.1 hereof. (b) If prior to the Closing Date the Buyer obtains actual knowledge of the breach of any representation, warranty or covenant made by the Sellers in this Section 8Agreement, such indemnified person which breach shall, in Buyer's good faith estimation, cost $500,000 or more to cure, then the Buyer shall promptly notify the indemnifying person Sellers thereof in writing writing. If such breach is capable of being cured, the Sellers, in their sole discretion, may attempt to cure the same at Sellers' sole cost and expense. If the Sellers are unable or unwilling to cure the same, or if the same is not capable of being cured, Sellers or Buyer (if such claim party is not in material breach or of the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person default under this Section 8 Agreement) may elect to terminate this Agreement upon five (except 5) days written notice. Buyer shall in either instance retain all its remedies for such breach. If neither Buyer nor Sellers elect to terminate the extent that Agreement notwithstanding such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter statedbreach, in case any such action shall be brought against an indemnified person, the indemnifying person Buyer shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person seek indemnification for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist Damages suffered as a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense result of such indemnifying person; providedbreach, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel except as set forth in Section 6.10. (together with appropriate local counselc) for all indemnified parties. In no event shall Sellers' liability for indemnification exceed the Purchase Price. (d) Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification (the "indemnified party") shall promptly notify the other party (the "indemnifying person be liable in respect party") of the claim and, when known, the facts constituting the basis for such claim. In the event of any amounts paid claim for indemnification hereunder resulting from or in settlement of connection with any action unless claim or legal proceedings by a third party, the notice to the indemnifying person party shall have approved specify, if known, the terms amount of such settlement; provided that such consent the liability arising therefrom. The indemnified party shall not be unreasonably withheld. No indemnifying person shallsettle or compromise any claim by a third party for which it is entitled to indemnification hereunder, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of indemnifying party (which any indemnified person is or could shall not be unreasonably withheld) unless suit shall have been a entered against it and the indemnifying party and indemnification could shall not have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release taken control of such indemnified person from all liability on claims that are the subject matter of such proceeding.suit after notification thereof as provided in this Section 11.3. 11.4

Claims for Indemnification. Promptly after receipt Notwithstanding the provisions of Section 7.2(b), if Acquiror or the Merger Sub becomes aware of any Losses for which any member of the Purchaser Group will seek indemnification, Acquiror or the Merger Sub shall deliver to the Escrow Agent, with a copy to the Stockholders’ Agent, on or before the Termination Date, a certificate signed by any indemnified person officer of Acquiror or the Merger Sub (an “Officer’s Certificate”) stating that with respect to the indemnification obligations set forth in Section 7.2, Losses exist and specifying in reasonable detail the individual items of such Losses included in the amount so stated, the date each such item was paid, properly accrued or arose, the nature of the misrepresentation, breach of warranty, covenant or claim to which such item is related and an estimate of attorney’s fees and expenses necessary to conclude the matter. If the Stockholders’ Agent does not object to such claims within thirty (30) calendar days of the delivery of the Officer’s Certificate to the Stockholders’ Agent, then after delivery of a written notice of a claim or cancellation (the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such action, but the omission to so notify the indemnifying person will not relieve it “Cancellation Notice”) from any liability which it may have to any indemnified person under this Section 8 (except Acquiror to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter statedStockholders’ Agent, in case any such action shall be brought against an indemnified person, the indemnifying person Acquiror shall be entitled to participate thereinreceive from the Escrow Agent Shares out of the Escrow Fund on a pro rata basis as among all holders of Shares based on the percentages in Schedule 1.5, and, with all such Shares to be received from Escrow having an aggregate Stated Price equal to the extent that it Losses, and in such event the Escrow Agent shall elect by written notice delivered deliver to Acquiror the foregoing number of Shares from the Escrow Fund. If the Stockholders’ Agent objects to such claims within such thirty (30) day period, Acquiror shall not receive from the Escrow Agent Shares out of the Escrow Fund and shall not notify the Escrow Agent to release to Acquiror Shares out of the Escrow Fund until such objection is resolved to the indemnified person promptly after receiving the aforesaid notice from such indemnified personmutual satisfaction of Stockholders’ Agent and Acquiror or pursuant to a final, non-appealable court order. Acquiror shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent notify each of the indemnified person, effect any settlement Indemnifying Parties of any pending or threatened proceeding in respect the number of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims Shares that are the subject matter of such proceedingto cancellation.

Claims for Indemnification. Promptly after receipt by any indemnified (a) Third-Party Claims. A person of a notice of a claim or entitled to indemnification under this Article VI (an "Indemnified Party") shall give prompt written notification to the beginning of any action in respect of which indemnity person from whom indemnification is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify (the indemnifying person in writing of such claim or "Indemnifying Party") of the commencement of such any action, but suit or proceeding relating to a third-party claim for which indemnification may be sought or, if earlier, upon the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, assertion in case writing of any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect claim by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying personthird party; provided, however, that no indemnifying person delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced. Within 30 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. Any Party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered "Damages" for purposes of this Agreement; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) per jurisdiction for all indemnified partiesIndemnified Parties. In no event Any Party controlling such defense shall keep the other Parties advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Parties with respect thereto. The Indemnified Party shall not agree to any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shallaction, suit, proceeding or claim without the prior written consent of the indemnified person, effect Indemnifying Party. The Indemnifying Party shall not agree to any settlement of any pending such action, suit, proceeding or threatened proceeding in respect of which any indemnified person is or could have been claim that does not include a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional complete release of such indemnified person the Indemnified Party or Parties from all liability with respect thereto or that imposes any liability or obligation on claims that are the subject matter Indemnified Party or Parties without the prior written consent of such proceedingthe Indemnified Party or Parties.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of If a claim or the beginning of any action in respect of which indemnity for Damages (a "CLAIM") is to be sought made by a party entitled to indemnification hereunder against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing party, the party claiming such indemnification shall give written notice (a "CLAIM NOTICE") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of such claim any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Article 15. Such Claim Notice shall specify the nature and amount of the commencement Claim asserted, if actually known to the party entitled to indemnification hereunder. If any lawsuit or enforcement action is filed against any party entitled to the benefit of such actionindemnity hereunder, but the omission written notice thereof shall be given to so notify the indemnifying person will not relieve it from party as promptly as practicable (and in any liability which it may have to event within 15 calendar days after the service of the citation or summons). The failure of any indemnified person under this Section 8 (party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend party demonstrates actual damage caused by such action) or from any liability otherwise than under this Section 8failure. Subject to the provisions hereinafter statedAfter such notice, in case any such action shall be brought against an indemnified person, if the indemnifying person party shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered acknowledge in writing to the indemnified person promptly after receiving party that the aforesaid notice from indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the indemnifying party shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified personparty that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such Claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. If the indemnifying party fails to assume the defense thereof, with counsel reasonably satisfactory to of such indemnified person. After notice from Claim within 15 calendar days after receipt of the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereofClaim Notice, the indemnified person shall be entitled party against which such Claim has been asserted will (upon delivering notice to retain its own counsel such effect to the indemnifying party) have the right to undertake, at the expense indemnifying party's cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying personparty; provided, however, that no indemnifying person such Claim shall not be responsible for compromised or settled without the fees and expenses written consent of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such party, which consent shall not be unreasonably withheld. No indemnifying person shall, without In the prior written consent event the indemnified party assumes the defense of the Claim, the indemnified personparty will keep the indemnifying party reasonably informed of the progress of any such defense, effect compromise or settlement. The indemnifying party shall be liable for any settlement of any pending or threatened proceeding action effected pursuant to and in respect accordance with this Article 15 and for any final judgment (subject to any right of which appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any indemnified person is or could have been a party and indemnification could have been sought hereunder Damages by such indemnified person, unless reason of such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingor judgment.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of a claim or A Person entitled to indemnification under this Article 10 (an “Indemnified Party”) shall give prompt written notification to the beginning of any action in respect of which indemnity Person from whom indemnification is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify (the indemnifying person in writing of such claim or “Indemnifying Party”) of the commencement of such any action, but suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the omission assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to so notify the indemnifying person will give notice of a Third Party claim as provided in this Section 10.3 shall not relieve it from any liability which it may have to any indemnified person the Indemnifying Party of its indemnification obligation under this Section 8 (Agreement except and only to the extent that such omission materially and adversely affects Indemnifying Party is actually damaged as a result of such failure to give notice). Within fourteen (14) days after delivery of such notification, the indemnifying person’s ability Indemnifying Party may, upon written notice thereof to defend the Indemnified Party, assume control of the defense of such action) , suit, proceeding or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such indemnified person. After notice defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party’s indemnification obligations, the Indemnifying Party shall reimburse the Indemnified Party for all reasonable costs, including attorney fees, incurred by the Indemnified Party in defending itself within thirty (30) days after receipt of any invoice therefore from the indemnifying person Indemnified Party. The Party not controlling such defense may participate therein at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such indemnified person of its election to assume the defense thereofaction, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereofsuit, provided, however, that if there exists proceeding or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereofclaim, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person Indemnifying Party shall be responsible for the reasonable fees and expenses of more than one separate counsel (together to the Indemnified Party in connection therewith. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with appropriate local counsel) for all indemnified partiesrespect thereto. In no event The Indemnified Party shall not agree to any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shallaction, suit, proceeding or claim without the prior written consent of the indemnified personIndemnifying Party, effect which shall not be unreasonably withheld, delayed or conditioned. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim or consent to any pending or threatened proceeding judgment in respect of which any indemnified person is or could have been thereof that does not include a party complete and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person the Indemnified Party from all liability with respect thereto, that imposes any liability or obligation on claims the Indemnified Party or that are acknowledges fault by the subject matter Indemnified Party without the prior written consent of such proceedingthe Indemnified Party, which consent shall not be unreasonably withheld.

Claims for Indemnification. Promptly after receipt by any indemnified person a Purchaser Indemnified Party under this Section 10 of a notice of the threat or commencement of any Action, such Purchaser Indemnified Party shall, if a claim or the beginning of any action in respect of which indemnity thereof is to be sought made against an indemnifying person pursuant to the Company under this Section 810, such indemnified person shall promptly notify the indemnifying person Company in writing of such claim or of the commencement of such actionthereof, but the omission to so notify the indemnifying person Company will not relieve it the Company from any liability which that it may have to any indemnified person Purchaser Indemnified Party for contribution or otherwise under the indemnity agreement contained in this Section 8 (except 10 to the extent that the Company is not prejudiced as a result of such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8failure. Subject to the provisions hereinafter stated, in In case any such action shall be Action is brought against an indemnified personany Purchaser Indemnified Party and such Purchaser Indemnified Party seeks or intends to seek indemnity from the Company, the indemnifying person Company shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled in and to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified personPurchaser Indemnified Party; provided, however, if the defendants in any such action include both the Purchaser Indemnified Party and the Company, and the Purchaser Indemnified Party shall have reasonably concluded, based on an opinion of counsel reasonably satisfactory to the Company, that there may be a conflict of interest between the positions of the Company and the Purchaser Indemnified Party in conducting the defense of any such Action or that there may be legal defenses available to it that are different from or additional to those available to the Company, the Purchaser Indemnified Party shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such Action. After Upon receipt of notice from the indemnifying person Company to such indemnified person Purchaser Indemnified Party of its election to assume the defense thereofof such Action and approval by the Purchaser Indemnified Party of the counsel, such indemnifying person the Company shall not be liable to such indemnified person Purchaser Indemnified Party under this Section 10 for any legal or other expenses subsequently incurred by such indemnified person Purchaser Indemnified Party in connection with the defense thereof, providedthereof unless (i) the Purchaser Indemnified Party shall have employed such counsel in connection with the assumption of legal defenses in accordance with the proviso to the preceding sentence (it being understood, however, that if there exists or the Company shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, not be liable for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel, reasonably satisfactory to the Company, representing all of the Purchaser Indemnified Parties who are parties to such Action) or (ii) the Company shall not have employed counsel (together with appropriate local counsel) for all indemnified partiesreasonably satisfactory to the Purchaser Indemnified Party to represent the Purchaser Indemnified Party within a reasonable time after notice of commencement of Action, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the Company. In no event shall any indemnifying person the Company be liable in respect of any amounts paid in settlement of any action Action unless the indemnifying person Company shall have approved in writing the terms of such settlement; provided that such consent shall not be unreasonably withheldwithheld or delayed. No indemnifying person shallThe Company shall not, without the prior written consent of the indemnified personPurchaser Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person Purchaser Indemnified Party is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person Purchaser Indemnified Party from all liability on claims that are the subject matter of such proceeding.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of a claim (a) All claims for indemnification made under this Section 8 resulting from, related to or the beginning arising out of any action claim against Purchaser shall be made in respect accordance with the following procedures. The Purchaser, if seeking to assert rights to indemnification under this Section 8 shall give prompt written notification to the Company of the commencement of any action, suit or proceeding relating to third-party claim for which indemnity is indemnification pursuant to this Section may be sought sought. Within fifteen (15) days after delivery of the notification, the Company may, upon written notice thereof to the Purchaser, assume control of the defense of the action, suit or proceeding with counsel reasonably satisfactory to the Purchaser; provided, however that (i) the Company may only assume control of the defense if it acknowledges in writing to the Purchaser that any damages, fines, costs or other liabilities that may be assessed against an indemnifying person the Purchaser in connection with the action, suit or proceeding constitute Damages for which the Purchaser shall be entitled to indemnification pursuant to this Section 8, such indemnified person shall notify (ii) the indemnifying person in writing of such claim or Company conducts the defense of the commencement of such action, but suit, proceeding or claim in good faith and in commercially reasonable manner, and (iii) the omission to so notify Company may not assume control of the indemnifying person will not relieve it from any liability defense of a suit or proceeding in which it may have to any indemnified person under this Section 8 equitable relief is sought against the Purchaser; or (except to iv) the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person Purchaser shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain maintain its own counsel defense at the expense of such indemnifying personthe Company if both the Company and the Purchaser are parties to the same action. If the Company does not assume control of the defense, the Purchaser shall control the defense. The party or parties not controlling the defense may participate therein at its or their own expense; provided, howeverhowever that if the Company assumes control of the defense and the Purchaser reasonably concludes that the Company and the Purchaser have conflicting interests or different defenses available with respect to the action, that no indemnifying person shall be responsible for suit or proceeding, the reasonable fees and expenses of more than one separate counsel to the Purchaser shall be considered Damages for purposes of this Agreement. The party or parties controlling the defense shall keep the other party or parties advised of the status of the action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party or parties with respect thereto. The non-controlling party or parties shall furnish the controlling party or parties with the information as it may have with respect to the action, suit or proceeding (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect including copies of any amounts paid summons, complaint or other pleading which may have been served on the 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 or parties in the defense of the action, suit or proceeding. The Purchaser shall not agree to any settlement of, or the entry of any action unless judgment arising from, the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shallaction, suit or proceeding without the prior written consent of the indemnified personCompany, effect which shall not be unreasonably withheld or delayed. The Company shall not agree to any settlement of or the entry of any pending judgment arising from the action, suit or threatened proceeding in respect without the prior written consent of the Purchaser, which any indemnified person is shall not be unreasonably withheld or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingdelayed.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of If a claim or the beginning of any action in respect of which indemnity for Damages (a “Claim”) is to be sought made by a party entitled to indemnification hereunder against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing party, the party claiming such indemnification shall give written notice (a “Claim Notice”) to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of such claim any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Article 19. Such Claim Notice shall specify the nature and amount of the commencement of such actionClaim asserted, but if actually known to the omission party entitled to so notify indemnification hereunder. If any lawsuit or enforcement action is filed against any party entitled to the benefit or indemnity hereunder, written notice thereof shall be given to the indemnifying person will not relieve it from party as promptly as practicable (and in any liability which it may have to event with 15 calendar days after the service of the citation or summons). The failure of any indemnified person under this Section 8 (party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend party demonstrates actual damage caused by such action) or from any liability otherwise than under this Section 8failure. Subject to the provisions hereinafter statedAfter such notice, in case any such action shall be brought against an indemnified person, if the indemnifying person party shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered acknowledge in writing to the indemnified person promptly after receiving party that the aforesaid notice indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action and it is not reasonably foreseeable that the limitations set forth in this Article 19 as to the amount or scope of indemnification will result in the indemnified party being exposed to the risk of any significant unindemnified liability arising from the matters covered by such lawsuit or action, then the indemnifying party shall be entitled, if its so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified personparty that are different from or additional to those available to the indemnifying party, in which event the indemnifying party shall be entitled entitled, at the indemnifying party’s cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such Claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld or delayed. If the indemnifying party fails to assume the defense thereof, with counsel reasonably satisfactory to of such indemnified person. After notice from Claim within 15 calendar days after receipt of the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereofClaim Notice, the indemnified person shall be entitled party against such Claim has been asserted will (upon delivering notice to retain its own counsel such effect to the indemnifying party) have the right to undertake, at the expense indemnifying party’s cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying personparty; provided, however, that no indemnifying person such Claim shall not be responsible for compromised or settled without the fees and expenses written consent of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such party, which consent shall not be unreasonably withheldwithheld or delayed. No indemnifying person shall, without In the prior written consent event the indemnified party assumes the defense of the Claim, the indemnified personparty will keep the indemnifying party reasonably informed of the progress of any such defense, effect compromise or settlement. The indemnifying party shall be liable for any settlement of any pending or threatened proceeding action effected pursuant to and in respect accordance with this Article 19 and for any final judgment (subject to any right of which appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any indemnified person is or could have been a party and indemnification could have been sought hereunder Damages by such indemnified person, unless reason of such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingor judgment.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of a claim (a) All claims for indemnification made under this Section 8 resulting from, related to or the beginning arising out of any action claim against a Purchaser shall be made in respect accordance with the following procedures. A Purchaser, if seeking to assert rights to indemnification under this Section 8 shall give prompt written notification to the Company of the commencement of any action, suit or proceeding relating to third-party claim for which indemnity is indemnification pursuant to this Section may be sought sought. Within fifteen (15) days after delivery of the notification, the Company may, upon written notice thereof to such Purchaser, assume control of the defense of the action, suit or proceeding with counsel reasonably satisfactory to such Purchaser; provided, however that (i) the Company may only assume control of the defense if it acknowledges in writing to such Purchaser that any damages, fines, costs or other liabilities that may be assessed against an indemnifying person such Purchaser in connection with the action, suit or proceeding constitute Damages for which such Purchaser shall be entitled to indemnification pursuant to this Section 8, such indemnified person shall notify and (ii) the indemnifying person in writing of such claim or Company conducts the defense of the commencement of such action, but suit, proceeding or claim in good faith and in commercially reasonable manner. The Company may not assume control of the omission to so notify the indemnifying person will not relieve it from any liability defense of a suit or proceeding in which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially equitable relief is sought against a Purchaser; and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person a Purchaser shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain maintain its own counsel defense at the expense of the Company if both the Company and the Purchaser are parties to the same action. If the Company does not assume control of the defense, such indemnifying personPurchaser shall control the defense. The party or parties not controlling the defense may participate therein at its or their own expense; provided, howeverhowever that if the Company assumes control of the defense and the Purchaser reasonably concludes that the Company and the Purchaser have conflicting interests or different defenses available with respect to the action, that no indemnifying person shall be responsible for suit or proceeding, the reasonable fees and expenses of more than one separate counsel to such Purchaser shall be considered Damages for purposes of this Agreement. The party or parties controlling the defense shall keep the other party or parties advised of the status of the action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party or parties with respect thereto. The non-controlling party or parties shall furnish the controlling party or parties with the information as it may have with respect to the action, suit or proceeding (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect including copies of any amounts paid summons, complaint or other pleading which may have been served on the 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 or parties in the defense of the action, suit or proceeding. If the Company assumes control of the defense pursuant hereto, the relevant Purchaser shall not agree to any settlement of, or the entry of any action unless judgment arising from, the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shallaction, suit or proceeding without the prior written consent of the indemnified personCompany, effect which shall not be unreasonably withheld or delayed. The Company shall not agree to any settlement of or the entry of any pending judgment arising from the action, suit or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release without the prior written consent of such indemnified person from all liability on claims that are the subject matter of such proceedingPurchaser, which shall not be unreasonably withheld or delayed.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of (a) If an Indemnitee desires to make a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to for indemnification under this Section 8Article VIII, such indemnified person shall notify Indemnitee will deliver to Stockholders’ Representative prior to the indemnifying person in writing of such claim Escrow End Date, or with respect to claims arising out of the commencement Extended Representations prior to the end of the survival period for such actionExtended Representation, but one or more written notices of Losses (each a “Claim”), with a copy to the omission to so notify Escrow Agent (during the indemnifying person term of the Escrow Agreement). Any Claim will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except state in reasonable detail the basis for the Damages to the extent then known by Indemnitee and the nature of the Damage for which indemnification is sought, and may state the amount of the Damage claimed. If such Claim (or an amended Claim) states the amount of the Damage claimed and Stockholders’ Representative notifies Indemnitee that Stockholders’ 52 Representative does not dispute the claim described in such omission materially and adversely affects notice or fails to notify Indemnitee within 30 days after delivery of such notice by Indemnitee whether Indemnifying Parties disputes the indemnifying person’s ability to defend claim described in such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified personnotice, the indemnifying person shall Damage in the amount specified in Indemnitee’s notice will be entitled admitted or deemed admitted by Indemnifying Parties, and Indemnifying Parties will pay the amount of such Damage to participate thereinIndemnitee, andfirst from the Escrow Account if amounts are remaining in such account and second, by refunding amounts previously received from the Escrow Account but solely to the extent that it shall elect by written provided in Section 8.2(b)(x). If Stockholders’ Representative has timely disputed the liability of Indemnifying Parties with respect to a Claim (or an amended Claim), Stockholders’ Representative and the Indemnitee will proceed in good faith to negotiate a resolution of such dispute. If a claim for indemnification has not been resolved within 30 days after delivery of notice delivered to Stockholders’ Representative, Indemnitee may seek judicial recourse. If a Claim does not state the indemnified person promptly after receiving amount of the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereofDamage claimed, such indemnifying person shall omission will not preclude Indemnitee from recovering from Indemnifying Parties the amount of the Damage described in such Claim if any such amount is subsequently provided in an amended Claim. In order to assert its right to indemnification under this Article VIII, Indemnitee will not be liable required to provide any notice except as provided in this Section 8.3, but such indemnified person for any legal expenses subsequently incurred by such indemnified person notice must be provided in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, timely fashion as specified in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingthis Article VIII.

Claims for Indemnification. Promptly after receipt by At any indemnified person of time that an Indemnified Person desires to claim Losses (a “Liability Claim”) that it believes is or may be indemnifiable under Section 8.3, such Indemnified Person will deliver a notice of such Liability Claim (a claim “Claims Notice”) to Parent and Buyer. With respect to a Liability Claim under Section 8.3(a) with respect to which Buyer seeks recovery from the Escrow Fund, at the same time Buyer delivers a Claims Notice to the Parent, Buyer will deliver a Claims Notice to the Escrow Agent. A Claims Notice will (a) be signed by an officer of Parent or Buyer, as applicable, (b) describe the beginning of any action Liability Claim in respect of which indemnity is reasonable detail and (c) indicate the amount (estimated, if necessary and to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing of such claim or extent feasible) of the commencement Loss that has been or may be paid, suffered, sustained or accrued by the Indemnified Persons. To the extent that the amount of such actiona Loss is not determinable as of the date of delivery of a Claims Notice, but Parent or Buyer, as applicable, may deliver a Claims Notice stating the omission to so notify the indemnifying person maximum amount of Loss that Parent or Buyer in good faith estimates or anticipates that an Indemnified Person may pay or suffer, except that Parent’s or Buyer’s provision of an estimated or anticipated amount of Loss will not relieve it limit the Loss recoverable or recovered by an Indemnified Person. No delay in or failure to give a Claims Notice by Buyer to Parent (or in the case of a Liability Claim seeking recovery from any liability which it may have to any indemnified person the Escrow Fund, the Escrow Agent) under this Section 8 (8.6 will adversely affect any of the other rights or remedies that an Indemnified Person has under this Agreement or alter or relieve an Indemnifying Person of their obligations to indemnify the Indemnified Persons under this Article 8, except and to the extent that such omission delay or failure has materially and adversely affects prejudiced the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense recipient of such indemnifying personClaim Notice; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall this sentence does not be unreasonably withheld. No indemnifying person shall, without the prior written consent relieve Buyer of the indemnified person, effect any settlement obligation to make a Liability Claim for recovery under this Article 8 prior to the expiration of any pending or threatened proceeding the applicable representations and warranty period described in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingSection 8.1).

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of a claim or (a) A Party entitled to indemnification under this Article VI (an "Indemnified Party") shall give prompt written notification to the beginning of any action in respect of party from which indemnity indemnification is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify (the indemnifying person in writing of such claim or "Indemnifying Party") of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Within 15 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) suit or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, proceeding with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person Indemnified Party, provided the Indemnifying Party acknowledges in writing to such indemnified person of its election to assume the defense thereofIndemnified Party that any damages, such indemnifying person shall not fines, costs or other liabilities that may be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person assessed against the Indemnified Party in connection with such action, suit or proceeding constitute Damages for which the Indemnified Party shall be entitled to indemnification pursuant to this Article VI. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The party not controlling such defense thereof, provided, however, may participate therein at its own expense; provided that if there exists the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or shall exist a conflict of interest that would make it inappropriatedifferent defenses available with respect to such action, in suit or proceeding, the opinion reasonable fees and expenses of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person Indemnified Party shall be entitled to retain its own counsel at considered "Damages" for purposes of this Agreement. The party controlling such defense shall keep the expense other party advised of the status of such indemnifying person; providedaction, however, that no indemnifying person suit or proceeding and the defense thereof and shall be responsible for consider in good faith recommendations made by the fees and expenses of more than one separate counsel (together other party with appropriate local counsel) for all indemnified partiesrespect thereto. In no event The Indemnified Party shall not agree to any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shallaction, suit or proceeding without the prior written consent of the indemnified personIndemnifying Party, effect which shall not be unreasonably withheld. The Indemnifying Party shall not agree to any settlement of any pending such action, suit or threatened proceeding in respect without the prior written consent of the Indemnified Party, which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingshall not be unreasonably withheld.

Claims for Indemnification. Promptly after Upon receipt by any indemnified person a party of a written notice of any action, suit, proceedings, claim, demand or assessment against it which might give rise to a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8for Damages, such indemnified person party (the "Indemnitee") shall notify give written notice thereof to the indemnifying person in writing other party (the "Indemnitor") indicating the nature of such claim or of and the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying personbasis therefor; provided, however, that no indemnifying person failure to give such notice shall be responsible for not affect the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless Indemnitee's rights provided hereunder except to the indemnifying person extent the Indemnitor shall have approved the terms been actually prejudiced as a result of such settlementfailure. The Indemnitor shall have the right, at its option, exercisable within 10 days after receipt of such notice to assume the defense of, at its own expense and by its own counsel, any such matter involving the asserted liability of the Indemnitee as to which the Indemnitor shall have acknowledged the right of the Indemnitee to payment by the Indemnitor, subject to the next sentence. If the Indemnitor shall undertake to compromise or defend any such asserted liability, it shall promptly notify the Indemnitee of its intention to do so, and the Indemnitee agrees to cooperate fully with the Indemnitor and its counsel in the compromise of, or defense against, any such asserted liability; provided provided, however, that such consent the Indemnitor shall not be unreasonably withheld. No indemnifying person shall, settle any such asserted liability without the prior written consent of the indemnified personIndemnitee. Notwithstanding an election to assume the defense of such action or proceeding, effect any settlement the Indemnitee shall have the right to employ separate counsel and to participate in the defense of such action or proceeding, and the reasonable fees, costs and expenses of such separate counsel shall be payable by the Indemnitor, if (A) the Indemnitor shall not have employed counsel reasonably satisfactory to the Indemnitee to represent the Indemnitor within 20 days after notice of the institution of such action or proceeding or (B) the Indemnitor shall have authorized the Indemnitee to employ separate counsel at the Indemnitor's expense and the Indemnitor shall promptly assume and hold the Indemnitee harmless from and against the full amount of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified personDamage resulting therefrom. Notwithstanding anything herein to the contrary, unless such settlement includes an unconditional release the Indemnitor shall not be entitled to assume control of such indemnified person from all liability defense but shall pay for the reasonable fees, costs and expenses of Indemnitee's legal counsel if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor, on claims that are the subject matter one hand, and Indemnitee on the other; (iii) the Indemnitor failed or is failing to vigorously prosecute or defend such claim; (iv) the claim seeks an injunction or equitable relief against Indemnitee; or (v) Indemnitee reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the reputation or future business prospects of Indemnitee. In any event, the Indemnitee and its counsel shall cooperate with the Indemnitor and its counsel. The Indemnitee shall have the right at its own expense to participate in the defense of such proceedingasserted liability.

Claims for Indemnification. Promptly after receipt by If any indemnified person of a notice of a claim Investor Indemnitee or the beginning of any action in respect of which indemnity Issuer Indemnitee (an "Indemnitee") shall believe that such Indemnitee is entitled to be sought against an indemnifying person indemnification pursuant to this Section 87 in respect of any Damages, such indemnified person Indemnitee shall notify give the indemnifying person appropriate Indemnifying Party (which for purposes hereof, in writing the case of an Investor Indemnitee, means the Issuer, and in the case of a Issuer Indemnitee, means the Investor) prompt written notice thereof. Any such notice shall set forth in reasonable detail and to the extent then known the basis for such claim for indemnification. The failure of such Indemnitee to give notice of any claim or of the commencement of for indemnification promptly shall not adversely affect such action, but the omission Indemnitee's right to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (indemnity hereunder except to the extent that such omission materially and failure adversely affects the indemnifying person’s ability right of the Indemnifying Party to defend assert any reasonable defense to such actionclaim. Each such claim for indemnity shall expressly state that the Indemnifying Party shall have only the twenty (20) business day period referred to in the next sentence to dispute or from any liability otherwise than under this Section 8deny such claim. Subject The Indemnifying Party shall have twenty (20) business days following its receipt of such notice either (a) to acquiesce in such claim by giving such Indemnitee written notice of such acquiescence or (b) to object to the provisions hereinafter statedclaim by giving such Indemnitee written notice of the objection. If the Indemnifying party does not object thereto within such twenty (20) business day period, in case any such action shall be brought against an indemnified person, the indemnifying person Indemnitee shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the be indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel for all Damages reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently and proximately incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable Indemnitee in respect of any amounts paid such claim. If the Indemnifying Party objects to such claim in settlement a timely manner, the senior management of any action unless the indemnifying person Issuer and the Investor shall have approved meet to attempt to resolve such dispute. If the terms of such settlement; provided that such consent shall dispute cannot be unreasonably withheld. No indemnifying person shallresolved by the senior management, without either party may make a written demand for formal dispute resolution and specify therein the prior written consent scope of the indemnified persondispute. Within thirty (30) days after such written notification, effect any settlement the parties agree to meet for one (1) day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of any pending or threatened proceeding dispute resolution is not agreed upon within thirty days after the one day mediation, either party may begin litigation proceedings. Nothing in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingthis section shall be deemed to require arbitration.

Claims for Indemnification. Promptly after receipt by Whenever any indemnified person of a notice of a claim or shall arise for indemnification hereunder, the beginning of any action in respect of which indemnity is party entitled to be sought against an indemnifying person pursuant to this Section 8, such indemnified person indemnification (the “Indemnified Party”) shall promptly notify the indemnifying person party obligated to provide indemnification (the “Indemnifying Party”) in writing of such the claim or of the commencement of such actionand, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified personwhen known, the indemnifying person shall be entitled to participate therein, and, to facts constituting the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from basis for such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying personclaim; provided, however, that no indemnifying person the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligation hereunder to the extent such failure does not materially prejudice the Indemnifying Party (it being agreed that the inability to defend a claim which gives rise to any obligation to pay any monetary amount of any kind shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified partiesconsidered to prejudice such Indemnifying Party). In no the event shall any indemnifying person be liable in respect of any amounts paid in settlement claim or demand asserted against the Indemnified Party by a third party upon which the Indemnified Party may claim indemnification, the Indemnifying Party shall give written notice to the Indemnified Party within 15 days after receipt of any action unless notice of such indemnification claim from the indemnifying person Indemnified Party indicating whether the Indemnifying Party intends to assume the defense of such claim or demand. Notwithstanding such assumption, the Indemnified Party shall have approved the terms right to participate in such defense, by written notice given to the Indemnifying Party within 15 days from the date of such settlement; the Indemnifying Party’s notice, provided that such participation shall be at the expense of the Indemnified Party unless there is a conflict of interest between the Indemnified Party and the Indemnifying Party or different defenses are available to the Indemnified Party, in which case the cost of such participation (including attorneys fees for counsel selected by the Indemnified Party) shall be reimbursed by the Indemnifying Party. If the Indemnifying Party assumes the defense and the Indemnified Party does not participate, the Indemnifying Party shall have the right fully to control and to settle the proceeding. If the Indemnified Party elects to participate in such defense, the parties shall cooperate in the defense of the proceeding, and shall not settle the same without the consent of each, which consent shall not be unreasonably withheld. No indemnifying person shallIf the Indemnifying Party elects not to assume the defense, the Indemnified Party shall have the right to do so (at the expense of the Indemnifying Party), and may settle the same without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingIndemnifying Party.

Claims for Indemnification. Promptly after receipt by If any indemnified person Purchaser Indemnitee or Company Indemnitee (each, an "Indemnitee") shall believe that such Indemnitee is entitled to indemnification pursuant to this Section 8 in respect of any Damages, such Indemnitee shall give the appropriate indemnifying party (for which purposes hereof, in the case of a Purchaser Indemnitee, means the Company, and in the case of a Company Indemnitee, means the Purchaser) prompt written notice thereof. Any such notice shall set forth in reasonable detail and to the extent then known the basis for such claim for indemnification. The failure of such Indemnitee to give notice of a claim or the beginning of any action in respect of which for indemnification promptly shall not adversely affect such Indemnitee's right to indemnity is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (hereunder except to the extent that such omission materially and failure adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, right of the indemnifying person party to assert any reasonable defense to such claim. Each such claim for indemnity shall expressly state that the indemnifying party shall have only the 20 business day period referred to in the next sentence to dispute or deny such claim. The indemnifying party shall have 20 business days following the receipt of such notice either (a) to acquiesce in such claim by giving such Indemnitee written notice of such acquiescence or (b) to object to such claim by giving such Indemnitee written notice of such objection. If the indemnifying party does not object thereto within such 20 business day period, such Indemnitee shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the be indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel for all Damages reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently and proximately incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable Indemnitee in respect of any amounts paid in settlement of any action unless such claim. If the indemnifying person party objects to such claim in a timely manner, the senior management of the Company and the Purchaser shall have approved meet to attempt to resolve such dispute. If the terms of such settlement; provided that such consent shall dispute cannot be unreasonably withheld. No indemnifying person shallresolved by the senior management, without either party may make a written demand for formal dispute resolution and specify therein the prior written consent scope of the indemnified persondispute. Within 30 days after such written notification, effect any settlement the parties agree to meet for one day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of any pending or threatened proceeding dispute resolution is not agreed upon by the parties within 30 days after the one-day mediation, either party may begin litigation proceedings. Nothing in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingthis Section 8.4 shall be deemed to require arbitration.

Claims for Indemnification. Promptly after Any party hereto (individually -------------------------- or with others, collectively, the "Indemnitee") shall give the Principal Stockholder or Tetra Tech, as the case may be (the "Indemnitor"), written notice (the "Claim Notice") of any claim (including the receipt by of any indemnified person of a notice of a claim demand) or the beginning commencement of any action in with respect of to which indemnity is to may be sought against an indemnifying person pursuant to this Section 8by the Indemnitee (individually, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such actiona "Claim" and collectively, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, "Claims"); provided, -------- however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel Indemnitee fails to give such Claim Notice prior to the indemnified person------- expiration of the General Liability Period or the Tax Liability Period, as applicable, all rights of the Indemnitee to assert any such Claims for a Tetra Tech Purchase Agreement Breach or Stockholder Purchase Agreement Breach, as the same counsel case may be, shall terminate and be forever waived. The Claim Notice shall state (i) the aggregate amount of Tetra Tech's Recoverable Losses or the Stockholders' Recoverable Losses (in either case, "Recoverable Losses") as to represent both which indemnification is being sought (which amount may be estimated and updated from time to time); (ii) the indemnified person components of the amount of Recoverable Losses for which indemnification is being sought (which components may be estimated and such indemnifying person or any affiliate or associate thereofupdated from time to time); and (iii) the specific grounds upon which the Claim for indemnification is being made. The right of the Indemnitee to indemnification for a Claim shall be deemed to be accepted by the Indemnitor unless, within 30 days after the Indemnitor's receipt of the Claim Notice, the indemnified person Indemnitor shall be entitled notify the Indemnitee in writing that it objects to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent right of the indemnified person, effect any settlement of any pending or threatened proceeding in Indemnitee to indemnification with respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are to the subject matter of such proceedingClaim.

Claims for Indemnification. Promptly after Any party hereto (individually or with others, collectively, the "Indemnitee") shall give the Shareholder Representatives or Maxwxxx, xx the case may be (the "Indemnitor"), written notice (the "Claim Notice") of any claim (including the receipt by of any indemnified person of a notice of a claim demand) or the beginning commencement of any action in with respect of to which indemnity is to may be sought against an indemnifying person pursuant to this Section 8by the Indemnitee (individually, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially a "Claim" and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified personcollectively, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person"Claims"); provided, however, that no indemnifying person the failure to give a Claim Notice shall not constitute a waiver of any rights of the Indemnitee with respect to indemnification by the Indemnitor, but shall relieve the Indemnitor of its indemnity obligation to the extent that such obligation is increased as a result of the Indemnitee's failure to give timely notice; provided, further, however, that if the Indemnitee fails to give such Claim Notice prior to the expiration of the General Liability Period or the Tax Liability Period, as applicable, all rights of the Indemnitee to assert any such Claims shall terminate and be forever waived. The Claim Notice shall state (i) the aggregate amount of the Maxwxxx Xxxoverable Losses or the Shareholders Recoverable Losses (in either case, "Recoverable Losses") as to which indemnification is being sought (which amount may be estimated and updated from time to time); (ii) the components of the amount of Recoverable Losses for which indemnification is being sought (which components may be estimated and updated from time to time); and (iii) the specific grounds upon which the Claim for indemnification is being made. The right of the Indemnitee to indemnification for a Claim shall be responsible for deemed to be accepted by the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless Indemnitor unless, within 30 days after the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent Indemnitor's receipt of the indemnified personClaim Notice, effect any settlement the Indemnitor shall notify the Indemnitee in writing that it objects to the right of any pending or threatened proceeding in the Indemnitee to indemnification with respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are to the subject matter of such proceedingClaim.

Claims for Indemnification. Promptly after receipt by Whenever any indemnified person of a notice of a claim or shall arise for indemnification hereunder, the beginning of any action in respect of which indemnity is party entitled to be sought against an indemnifying person pursuant to this Section 8, such indemnified person indemnification (the “Indemnified Party”) shall promptly notify the indemnifying person party obligated to provide indemnification (the “Indemnifying Party”) in writing of such the claim or of the commencement of such actionand, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified personwhen known, the indemnifying person shall be entitled to participate therein, and, to facts constituting the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from basis for such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereofclaim, provided, however, that if the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligation hereunder to the extent such failure does not prejudice the Indemnifying Party (it being agreed that the inability to defend a claim which gives rise to any obligation to pay any monetary amount of any kind shall be considered to prejudice such Indemnifying Party). In the event of any claim or demand asserted against the Indemnified Party by a third party upon which the Indemnified Party may claim indemnification, the Indemnifying Party shall give written notice to the Indemnified Party within thirty (30) days after receipt of notice of such indemnification claim from the Indemnified Party indicating whether the Indemnifying Party intends to assume the defense of such claim or demand. Notwithstanding such assumption, the Indemnified Party shall have the right to participate in such defense, by written notice given to the Indemnifying Party within thirty (30) days from the date of the Indemnifying Party’s notice, provided that such participation shall be at the expense of the Indemnified Party unless there exists or shall exist is a conflict of interest that would make it inappropriatebetween the Indemnified Party and the Indemnifying Party or different defenses are available to the Indemnified Party, in which case the opinion cost of such participation (including attorneys fees for counsel selected by the Indemnified Party) shall be reimbursed by the Indemnifying Party. If the Indemnifying Party assumes the defense and the Indemnified Party does not participate, the Indemnifying Party shall have the right fully to control and to settle the indemnified personAction. If the Indemnified Party elects to participate in such defense, for the parties shall cooperate in the defense of the Action, and shall not settle the same counsel to represent both without the indemnified person and such indemnifying person or any affiliate or associate thereofconsent of each, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such which consent shall not be unreasonably withheld. No indemnifying person shallIf the Indemnifying Party elects not to assume the defense, the Indemnified Party shall have the right to do so (at the expense of the Indemnifying Party), and may settle the same without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingIndemnifying Party.

Claims for Indemnification. Promptly after receipt by Whenever any indemnified person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to Buyer's Claim shall arise for indemnification under this Section 8Article X, such indemnified person I-FLOW shall notify the indemnifying person VMI Shareholders and the INFUSYSTEM Shareholders of the Buyer's Claim and, when known, the facts constituting the basis for such Claim. In the event of any Claim for indemnification hereunder resulting from or in connection with any legal proceedings by a third party, such notice shall also specify, if known, the amount or an estimate of the amount of the liability arising therefrom. I-FLOW and I-FLOWSUB shall give the VMI Shareholders and the INFUSYSTEM Shareholders a reasonable opportunity to defend any such Buyer's Claim at their own expense and with counsel of their own selection and reasonably acceptable to I-FLOW, provided that I-FLOW and I-FLOWSUB shall at all times also have the right to fully participate in the defense at their own expense. If the VMI Shareholders and the INFUSYSTEM Shareholders shall, within a reasonable time after notice, fail to defend, I-FLOW and I-FLOWSUB shall have the right to undertake the defense of, and to compromise or settle (exercising reasonable business judgment) the Buyer's Claim on behalf, for the account, and at the risk of, the VMI Shareholders and the INFUSYSTEM Shareholders. I-FLOW shall notify the VMI Shareholders and the INFUSYSTEM Shareholders in writing of such claim or the existence of any Buyer's Claim to which the commencement of such actionVMI Shareholders and the INFUSYSTEM Shareholders' indemnification would apply, but the omission failure to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to VMI Shareholders and the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceeding.INFUSYSTEM

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of If a claim for the indemnification under this Article IV is not paid in full by the corporation within thirty (30) days after a written claim pursuant to Section 4.2 has been received by the corporation, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the beginning of any action in respect of which indemnity is claimant shall be entitled to be sought against paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an indemnifying person action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the corporation) that the claimant has not met the standard of conduct that makes it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, Independent Counsel or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its board of directors, Independent Counsel or stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. If a determination shall have been made pursuant to this Section 84.3 that the claimant is entitled to indemnification, the corporation shall be bound by such indemnified person determination in any judicial proceeding commenced pursuant to Section 4.3. The corporation shall notify be precluded from asserting in any judicial proceeding commenced pursuant to Section 4.3 that the indemnifying person procedures and presumptions of this Article IV are not valid, binding and enforceable and shall stipulate in writing of such claim or of proceeding that the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to corporation is bound by all the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingthis Article IV.

Claims for Indemnification. Promptly after receipt by any indemnified person (a) All claims for indemnification made under this Article VIII resulting from, related to or arising out of a notice of a third-party claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant Indemnified Party (as defined below) shall be made in accordance with the following procedures. A Party entitled, or seeking to assert rights, to indemnification under this Section 8, such indemnified person Article VIII (an AIndemnified Party@) shall notify give prompt written notification to the indemnifying person in writing of such claim or Party from whom indemnification is sought (the “Indemnifying Party”) of the commencement of any action, suit or proceeding relating to a third-party claim for which indemnification pursuant to this Article VIII may be sought. Within 15 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) suit or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, proceeding with counsel reasonably satisfactory to the Indemnified Party, provided that (i) the Indemnifying Party may only assume control of such indemnified person. After notice from defense if it acknowledges in writing to the indemnifying person to such indemnified person of its election to assume Indemnified Party that any damages, fines, costs or other liabilities that may be assessed against the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person Indemnified Party in connection with such action, suit or proceeding constitute Damages for which the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person Indemnified Party shall be entitled to retain its own counsel at indemnification pursuant to this Article VIII, (ii) the expense Indemnifying Party conducts the defense of the action, suit, proceeding or claim in good faith and in a commercially reasonable manner, (iii) the Indemnifying Party may not assume control of the defense of a suit or proceeding in which equitable relief is sought against the Indemnified Party and (iv) the Indemnifying Party may not assume control of the defense of a suit or proceeding in which the amount of Damages sought exceeds the maximum amount recoverable by the Indemnified Party from the Indemnifying Party pursuant to the limitations contained in Section 9.1. If the Indemnifying Party does not assume control of such indemnifying persondefense, the Indemnified Party shall control such defense. The Party or Parties not controlling such defense may participate therein at its or their own expense; providedprovided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such action, howeversuit or proceeding, that no indemnifying person shall be responsible for the reasonable fees and expenses of more than one separate counsel to the Indemnified Party in each jurisdiction shall be considered Damages for purposes of this Agreement. The Party or Parties controlling such defense shall keep the other Party or Parties advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other Party or Parties with respect thereto. The non-controlling Party or Parties shall furnish the controlling Party or Parties with such information as it may have with respect to such action, suit or proceeding (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect including copies of any amounts paid 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 or Parties in the defense of such action, suit or proceeding. The Indemnified Party shall not agree to any settlement of, or the entry of any action unless the indemnifying person shall have approved the terms of judgment arising from, such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shallaction, suit or proceeding without the prior written consent of the indemnified personIndemnifying Party, effect which shall not be unreasonably withheld or delayed. The Indemnifying Party shall not agree to any settlement of, or the entry of any pending judgment arising from such action, suit or threatened proceeding in respect without the prior written consent of the Indemnified Party, which any indemnified person is shall not be unreasonably withheld or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingdelayed.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s 's ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceeding.

Claims for Indemnification. Promptly after receipt by In order to seek indemnification under Section 7.2 hereof, Parent shall deliver an Officer’s Certificate to the Shareholder Representative and the Escrow Agent at any indemnified person of a notice of a claim time on or before the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing of such claim or last day of the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying personEscrow Period; provided, however, that no indemnifying person subject to the provisions of Sections 7.2(c), 7.4(c) and 7.4(d), Parent may seek and shall be responsible entitled to indemnification outside of the Escrow Fund directly from the Principal Shareholders for (i) fraud, or (ii) a breach of the fees Limited Section 2.2 Representations following the expiration of the Escrow Period by delivering an Officer’s Certificate to the Shareholder Representative on or before the expiration of the applicable statute of limitations. Unless the Shareholder Representative shall have delivered an Objection Notice pursuant to Section 7.4(c) hereof, the Escrow Agent shall promptly, and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In in no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless later than the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent thirtieth (30th) day after its receipt of the indemnified personOfficer’s Certificate, effect any settlement of any pending or threatened proceeding deliver to the Indemnified Party from the Escrow Fund an amount equal to the Loss set forth in respect of which any indemnified person is or could such Officer’s Certificate. Any payment from the Escrow Fund to Indemnified Parties shall be made in Parent Common Stock, and cash, if applicable, in the same proportions as then contained in the Escrow Fund, and shall be deemed to have been made pro rata amongst the Principal Shareholders based on the aggregate amounts deposited into the Escrow Fund on each such Principal Shareholder’s behalf. For the purposes hereof, “Officer’s Certificate” shall mean a party certificate signed by any officer of Parent: (i) stating that an Indemnified Party has paid, sustained, incurred, or properly accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, and indemnification could have been sought hereunder by (ii) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such indemnified personitem was paid, unless sustained, incurred, or properly accrued, or the basis for such settlement includes an unconditional release anticipated liability, and the nature of the misrepresentation, breach of warranty or covenant to which such indemnified person from all liability on claims that are the subject matter of such proceedingitem is related.

Claims for Indemnification. Promptly after Within the indemnification limitations set forth in Section 9.02 above, upon receipt by any indemnified person Purchaser of a written notice of any action, suit, proceedings, claim, demand or assessment against it which might give rise to a claim or for Damages, Purchaser shall give written notice thereof to the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify Seller indicating the indemnifying person in writing nature of such claim or of and the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying personbasis therefor; provided, however, that no indemnifying person failure to give such notice shall be responsible for not affect the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless Purchaser's rights provided hereunder except to the indemnifying person extent that the Seller's rights shall have approved the terms been actually and materially prejudiced as a result of such settlementfailure. Seller shall have the right, at its option, exercisable within 10 days after receipt of such notice to assume the defense of, at its own expense and by its own counsel, any such matter involving the asserted liability of the Purchaser as to which the Seller shall have acknowledged the right of the Purchaser to payment by the Seller, subject to the next sentence. If the Seller shall undertake to compromise, settle or defend any such asserted liability, it shall promptly notify the Purchaser of its intention to do so, and the Purchaser agrees to cooperate fully with the Seller and its counsel in the compromise or settlement of, or defense against, any such asserted liability; provided provided, however, that the Seller shall not settle any such asserted liability without the written consent of the Purchaser, which such consent shall not be unreasonably withheld. No indemnifying person shallNotwithstanding an election to assume the defense of such action or proceeding, the Purchaser shall have the right to employ separate counsel and to participate in the defense of such action or proceeding, and the reasonable fees, costs and expenses of such separate counsel shall be payable by the Seller, if (A) the Seller shall not have employed counsel reasonably satisfactory to the Purchaser to represent the Seller within 20 days after notice to the Seller of the institution of such action or proceeding or (B) the Seller shall have authorized the Purchaser to employ separate counsel at the Seller's expense and the Seller shall promptly assume and hold the Purchaser harmless from and against the full amount of any Damage resulting therefrom. Notwithstanding anything herein to the contrary, the Seller shall not be entitled to assume control of such defense but shall pay for the reasonable fees, costs and expenses of Purchaser's legal counsel if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) Purchaser has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Seller, on the one hand, and Purchaser on the other; (iii) the Seller failed or is failing to vigorously prosecute or defend such claim; (iv) the claim seeks an injunction or equitable relief against Purchaser; or (v) Purchaser reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the reputation or future business prospects of Purchaser. If the Purchaser shall undertake to compromise, settle or defend any asserted liability in accordance with the immediately preceding sentence, it shall promptly notify the Seller of its intention to do so, and the Seller agrees to cooperate fully with the Purchaser and its counsel in the compromise or settlement of, or defense against, any such asserted liability; provided, however, that the Purchaser shall not settle any such asserted liability without the prior written consent of the indemnified personSeller, effect which such consent shall not be unreasonably withheld. In any settlement of any pending or threatened proceeding event, the Purchaser and its counsel shall cooperate with the Seller and its counsel. The Purchaser shall have the right at its own expense to participate in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release the defense of such indemnified person from all liability on claims that are the subject matter of such proceedingasserted liability.

Claims for Indemnification. Promptly after receipt by any indemnified A person of a notice of a claim or entitled to indemnification under this Article X (an “Indemnified Party”) shall give prompt written notification to the beginning of any action in respect of which indemnity person from whom indemnification is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify (the indemnifying person in writing of such claim or “Indemnifying Party”) of the commencement of such any action, but suit or proceeding relating to a Third Party claim for which indemnification may be sought (in the omission case of any HHMI Indemnitee, notice shall be given reasonably promptly following actual receipt of written notice thereof by an officer or attorney of HHMI) or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to so notify the indemnifying person will give notice of a third-party claim as provided in this Section 10.3 shall not relieve it from any liability which it may have to any indemnified person the Indemnifying Party of its indemnification obligation under this Section 8 (Agreement except and only to the extent that such omission materially and adversely affects Indemnifying Party is actually damaged as a result of such failure to give notice). Within thirty (30) days after delivery of such notification, the indemnifying person’s ability Indemnifying Party may, upon written notice thereof to defend the Indemnified Party, assume control of the defense of such action) , suit, proceeding or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such indemnified persondefense, the Indemnified Party shall control such defense. After notice from The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the indemnifying person to other Party advised of the status of such indemnified person of its election to assume action, suit, proceeding or claim and the defense thereof, such indemnifying person thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not be liable agree to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense settlement of such indemnifying person; providedaction, howeversuit, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, proceeding or claim without the prior written consent of the indemnified personIndemnifying Party, effect which shall not be unreasonably withheld. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim or consent to any pending or threatened proceeding judgment in respect of which any indemnified person is or could have been thereof that does not include a party complete and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person the Indemnified Party from all liability with respect thereto or that imposes any liability, restriction, or obligation on claims that are the subject matter Indemnified Party, or would include the admission of such proceedingliability on the part of the Indemnified Party without the prior written consent of the Indemnified Party.

Claims for Indemnification. Promptly after receipt by any indemnified person of (a) A party seeking indemnification hereunder (the "Indemnitee") shall give to the party from which indemnification is sought (the "Indemnitor") written notice (a notice of a claim or the beginning "Claim Notice") of any action claim which is subject to the indemnity obligations set forth in this Agreement, with sufficient promptness so as not to prejudice the Indemnitor's interests in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing of such claim or and any obligation of indemnity arising therefrom. The Claim Notice shall set forth, to the best of the commencement Indemnitee's knowledge, all facts and other information with respect to the claim, including without limitation the anticipated amount of such actionLosses or reasonable estimate thereof. The failure to give prompt notice shall not affect the rights of the Indemnitee to indemnity hereunder, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission failure either shall have materially and adversely affects prejudiced the indemnifying person’s ability Indemnitor in the defense of such claim or shall have materially increased the amount of the obligation of the Indemnitor. The Indemnitor receiving a Claim Notice may object to defend such actionClaim Notice by delivering written notice of such objection to the Indemnitee within ten (10) or from any liability otherwise than under days after receipt of the applicable Claim Notice. If the Indemnitor does not timely object to a Claim Notice in accordance with paragraph (b) of this Section 8. Subject to 7.4, the provisions hereinafter statedIndemnitor shall, within fifteen (15) days after receipt of the Claim Notice, either (i) pay the amount of the claim set forth in the Claim Notice, if a monetary amount is involved, in case any such action shall be brought against an indemnified personaccordance with this Section 7, or (ii) if a claim of a third party is involved, have the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled right to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying personclaim; provided, however, that no indemnifying person that, if the amount of the claim exceeds the amount of the Indemnitor's obligation to indemnify the Indemnitee hereunder, the Indemnitee may elect to control the defense of such claim. Subject to the preceding sentence, the Indemnitor shall be responsible for have the fees exclusive right to conduct and expenses control, through counsel of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect its own choosing, the defense of any amounts paid such claim or any action arising therefrom; provided, that in settlement conducting the defense of any action unless such claim or action, the indemnifying person Indemnitor shall, and shall cause its counsel to, consult with the Indemnitee and counsel, if any, selected by it, and shall keep such counsel, if any, and the Indemnitee fully advised of the progress thereof and, provided further, that if the Indemnitee shall have approved the terms elected to retain control of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person defense, the Indemnitee shall, and shall cause its counsel to, consult with the Indemnitor and counsel, if any, selected by it, and shall keep such counsel, if any and the Indemnitor fully advised of the progress thereof. If the Indemnitor fails or refuses to assume the defense and control of the defense of any such claim or action, then the Indemnitee shall conduct and control such defense. So long as the Indemnitor is conducting the defense of any third party claim in accordance with this Section 7.4(a), (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of the third party claim, (ii) the Indemnitee will not consent to the entry of any judgment or enter into any settlement with respect to the third party claim without the prior written consent of the indemnified person, effect Indemnitor (such consent not to be withheld unreasonably) and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the third party claim without the prior written consent of the Indemnitee (such consent not to be withheld unreasonably and such consent not to be withheld at all if the judgment or settlement contains a full release reasonably satisfactory to the Indemnitee). If the Indemnitee has elected to conduct the defense of a third party claim because the claim is for more than the Indemnitor's obligation hereunder, (i) the indemnitor may retain separate co-counsel at its sole cost and expense and participate in the defense of the third party claim and (ii) neither the Indemnitor nor the Indemnitee will consent to the entry of any pending judgment or threatened proceeding in enter into any settlement with respect to the third party claim without the prior written consent of which any indemnified person is or could have been a the other party and indemnification could have been sought hereunder by (such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceeding.consent not to be withheld unreasonably); and

Claims for Indemnification. Promptly after receipt If Kintera or the Merger Sub becomes aware of any Losses for which Kintera or the Merger Sub will seek indemnification, Kintera or the Merger Sub shall deliver to the Escrow Agent, with a copy to the Securityholders' Agent, on or before the Termination Date, a certificate signed by any indemnified person officer of Kintera or the Merger Sub (an "Officer's Certificate") stating that with respect to the indemnification obligations set forth in Section 8.2, Losses exist and specifying in reasonable detail the individual items of such Losses included in the amount so stated, the date each such item was paid, properly accrued or arose, the nature of the misrepresentation, breach of warranty, covenant or claim to which such item is related and an estimate of attorney's fees and expenses necessary to conclude the matter. If the Securityholders' Agent does not object to such claims within twenty (20) days of the delivery of the Officer's Certificate to the Securityholders' Agent, Kintera shall be entitled to receive from the Escrow Agent shares of Escrow Securities, and shall be entitled to cancel Substituted Options for Shares, each on a pro rata basis as among all holders of Shares and Substituted Options, with all such Shares to be received from Escrow or subject to canceled Substituted Options having an aggregate Stated Price equal to the Reimbursable Losses, and in such event the Escrow Agent shall deliver to Kintera the foregoing number of Escrow Securities. If the Securityholders' Agent has not objected to such claims, and the Reimbursable Losses exceed the aggregate Stated Price of the remaining Escrow Securities, then Kintera shall be entitled, upon delivery of a written notice of cancellation (the "Cancellation Notice") to the Securityholders' Agent, to (i) (a) receive from the Escrow Agent all remaining shares of Escrow Securities and (b) cancel Substituted Options to purchase Shares in the same proportion for all holders of Shares and Substituted Options as the remaining Escrow Securities bears to all Shares, including Shares subject to Substituted Options (as adjusted for stock splits, dividends, recombinations and the like), then (ii) cancel remaining Shares and Substituted Options to purchase Shares on a claim pro rata basis among all holders of Shares or the beginning of any action in respect of which indemnity is Substituted Options, with all such Shares to be sought against received from Escrow, subject to canceled Substituted Options and canceled Shares pursuant to (i) and (ii) above having an indemnifying person aggregate Stated Price equal to the Reimbursable Losses, and in such event the Escrow Agent shall deliver to Kintera the remaining Escrow Securities. Kintera shall notify each of the Indemnifying Parties of the number of Shares that are subject to cancellation, the number of Shares subject to return to Kintera and the number of Shares subject to canceled Substituted Options. At such time, the stockholders and holders of Substituted Options shall promptly surrender any stock certificate(s) evidencing Shares cancelled pursuant to this Section 88 and any agreements representing cancelled Substituted Options, such indemnified person shall notify the indemnifying person in writing provided that surrender of such claim or of the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such actioncertificate(s) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person agreements representing Substituted Options shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel condition to the indemnified person, for the same counsel to represent both the indemnified person cancellation of such Shares or Substituted Options and such indemnifying person or any affiliate or associate thereof, the indemnified person Shares and Substituted Options shall be entitled deemed cancelled when the Cancellation Notice is given by Kintera pursuant to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingthis Section 8.6.

Claims for Indemnification. Promptly after receipt by Whenever any indemnified person of a notice of a claim or for indemnification shall arise under this Article VIII, the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8, party asserting such indemnified person claim (the "Indemnified Party") shall notify the indemnifying person other party (the "Indemnifying Party") of the claim and, when known, the facts constituting the basis for such claim. In the event of any claim for indemnification hereunder resulting from or in connection with legal proceedings by a third party, such notice shall also specify, if known, the amount or an estimate of the amount of the liability arising therefrom. If any lawsuit is filed or instituted against the Indemnified Party asserting any claim for which the Indemnifying Party may be responsible hereunder, written notice thereof shall be given to the Indemnifying Party as promptly as practicable; and if the Indemnifying Party shall acknowledge in writing that the Indemnifying Party shall be responsible and liable for payment of all costs, losses, liabilities, claims and expenses in connection with such claim or of lawsuit, then the commencement of such actionIndemnifying Party shall be entitled, but if the omission Indemnifying Party so elects (subject to so notify the indemnifying person will not relieve it from any liability Indemnified Party's written consent which it may have to any indemnified person under this Section 8 (except be withheld by the Indemnified Party to the extent that the Indemnified Party's rights under any other contested matter or any aspect of the Indemnified Party's ongoing business operations may be prejudiced materially by the Indemnified Party's lack of control over such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, andlawsuit), to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume take control of the defense thereofand investigation of such lawsuit and to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party's cost, risk and expense; and 37 44 the Indemnified Party shall cooperate in all reasonable respects, at the Indemnifying Party's cost, risk and expense, with counsel reasonably satisfactory to the Indemnifying Party and such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, attorneys in the opinion of counsel to the indemnified personinvestigation, for the same counsel to represent both the indemnified person trial and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense defense of such indemnifying personlawsuit and any appeal arising therefrom; provided, however, that no indemnifying person shall be responsible for the fees Indemnified Party may, at its own cost, participate in any such investigation, trial and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect defense of any amounts paid such lawsuit and any appeal arising therefrom. Unless authorized in the Indemnified Party's consent, the Indemnifying Party shall not consent to a settlement of, or the entry of any action unless the indemnifying person shall have approved the terms of judgment arising from, any such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shallclaim or legal proceeding, without the prior written consent of the indemnified personIndemnified Party, effect any settlement which shall not be unreasonably withheld. If the Indemnifying Party does not assume the defense of any pending such claim or threatened proceeding litigation resulting therefrom in respect accordance with the terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, without limitation, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. If the Indemnifying Party seeks to question the manner in which the Indemnified Party defended such claim or litigation or the amount of or other nature of any indemnified person is or could such settlement, the Indemnifying Party shall have been the burden to prove by a party and indemnification could have been sought hereunder by preponderance of the evidence that the Indemnified Party did not defend such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingclaim in a reasonably prudent manner.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of a claim or A Person entitled to indemnification under this Article VI (an "Indemnified Party") shall give prompt written notification to the beginning of any action in respect of which indemnity Person from whom indemnification is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify (the indemnifying person in writing of such claim or "Indemnifying Party") of the commencement of such any action, but suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the omission assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to so notify the indemnifying person will give notice of a Third-Party claim as provided in this Section 6.3 shall not relieve it from any liability which it may have to any indemnified person the Indemnifying Party of its indemnification obligation under this Section 8 (Agreement except and only to the extent that such omission materially and adversely affects Indemnifying Party is actually damaged as a result of such failure to give notice). Within fourteen (14) days after delivery of such notification, the indemnifying person’s ability Indemnifying Party may, upon written notice thereof to defend the Indemnified Party, assume control of the defense of such action) , suit, proceeding or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such indemnified person. After notice defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party's indemnification obligations, the Indemnifying Party shall reimburse the Indemnified Party for all reasonable and verifiable costs, including attorney fees, incurred by the Indemnified Party in defending itself within thirty (30) days after receipt of any invoice therefor from the indemnifying person Indemnified Party. The Party not controlling such defense may participate therein at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such indemnified person of its election to assume the defense thereofaction, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereofsuit, provided, however, that if there exists proceeding or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereofclaim, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person Indemnifying Party shall be responsible for the reasonable and verifiable fees and expenses of more than one separate counsel (together to the Indemnified Party in connection therewith. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with appropriate local counsel) for all indemnified partiesrespect thereto. In no event The Indemnified Party shall not agree to any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shallaction, suit, proceeding or claim without the prior written consent of the indemnified personIndemnifying Party, effect which shall not be unreasonably withheld, delayed or conditioned. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim or consent to any pending or threatened proceeding judgment in respect of which any indemnified person is or could have been thereof that does not include a party complete and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person the Indemnified Party from all liability with respect thereto, that imposes any liability or obligation on claims the Indemnified Party or that are acknowledges fault by the subject matter Indemnified Party without the prior written consent of such proceedingthe Indemnified Party.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of If a claim or the beginning of any action in respect of which indemnity for Damages (a "CLAIM") is to be sought made by a party entitled to indemnification hereunder against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing party, the party claiming such indemnification shall give written notice (a "CLAIM NOTICE") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of such claim any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Article 18. Such Claim Notice shall specify the nature and amount of the commencement of such actionClaim asserted, but if actually known to the omission party entitled to so notify indemnification hereunder. If any lawsuit or enforcement action is filed against any party entitled to the benefit or indemnity hereunder, written notice thereof shall be given to the indemnifying person will not relieve it from party as promptly as practicable (and in any liability which it may have to event with 15 calendar days after the service of the citation or summons). The failure of any indemnified person under this Section 8 (party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend party demonstrates actual damage caused by such action) or from any liability otherwise than under this Section 8failure. Subject to the provisions hereinafter statedAfter such notice, in case any such action shall be brought against an indemnified person, if the indemnifying person party shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered acknowledge in writing to the indemnified person promptly after receiving party that the aforesaid notice indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action and it is not reasonably foreseeable that the limitations set forth in this Article 18 as to the amount or scope of indemnification will result in the indemnified party being exposed to the risk of any significant unindemnified liability arising from the matters covered by such lawsuit or action, then the indemnifying party shall be entitled, if its so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified personparty that are different from or additional to those available to the indemnifying party, in which event the indemnifying party shall be entitled entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such Claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. If the indemnifying party fails to assume the defense thereof, with counsel reasonably satisfactory to of such indemnified person. After notice from Claim within 15 calendar days after receipt of the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereofClaim Notice, the indemnified person shall be entitled party against such Claim has been asserted will (upon delivering notice to retain its own counsel such effect to the indemnifying party) have the right to undertake, at the expense indemnifying party's cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying personparty; provided, however, that no indemnifying person such Claim shall not be responsible for compromised or settled without the fees and expenses written consent of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such party, which consent shall not be unreasonably withheld. No indemnifying person shall, without In the prior written consent event the indemnified party assumes the defense of the Claim, the indemnified personparty will keep the indemnifying party reasonably informed of the progress of any such defense, effect compromise or settlement. The indemnifying party shall be liable for any settlement of any pending or threatened proceeding action effected pursuant to and in respect accordance with this Article 18 and for any final judgment (subject to any right of which appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any indemnified person is or could have been a party and indemnification could have been sought hereunder Damages by such indemnified person, unless reason of such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingor judgment.

Claims for Indemnification. Promptly after receipt With respect to any claims or demands by any indemnified person of -------------------------- third parties, other than claims or demands covered by Section 7.3, whenever Expedia shall have received a written notice of that such a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person demand has been asserted or threatened, or whenever Expedia shall seek indemnification pursuant to this Section 8Article VII, such indemnified person Expedia shall notify the indemnifying person "Holders' Representative" (as designated in writing the Escrow Agreement) of such claim or demand and of the commencement of facts within Expedia's knowledge that relate thereto within a reasonable time after receiving such actionwritten notice. The Holders' Representative shall then have the right to contest, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) negotiate or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case settle any such action shall be brought against an indemnified personclaim or demand through counsel of his own selection, satisfactory to Expedia and solely at the Holders' own cost, risk, and expense. Notwithstanding the preceding sentence, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person Holders shall not be liable settle, compromise, or offer to settle or compromise any such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with claim or demand without the defense thereofprior written consent of Expedia, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such which consent shall not be unreasonably withheld. No indemnifying person shall, without By way of illustration and not limitation it is understood that Expedia 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 prior written consent Business Condition of Expedia or any of its Subsidiaries. Expedia shall not have the right to object to a settlement which consists solely of the indemnified personpayment of a monetary damage amount and which is subject to full indemnification under this Agreement. If the Holders' Representative fails to give written notice to Expedia of his intention to contest or settle any such claim or demand within twenty (20) calendar days after Expedia has notified the Holders' Representative that any such claim or demand has been made in writing and received by Expedia, effect or if any settlement such notice is given but any such claim or demand is not promptly contested by the Holders' Representative, Expedia shall have the right to satisfy and discharge the same by payment, compromise, or otherwise, in accordance with the procedures set forth in the Escrow Agreement. Expedia may also, if it so elects and entirely within its own discretion, defend any such claim or demand if the Holders' Representative fails to give notice of his intention to contest or settle any pending such claim or threatened proceeding demand, in respect which event Expedia and its affiliates shall be entitled to indemnification to the full extent of which the Total Escrow (as defined in the Escrow Agreement ) for any indemnified person is and all costs, losses, liabilities, and expenses whatsoever, including without limitation reasonable attorneys' and other professional fees, that Expedia may sustain, suffer, incur, or could have been become subject to as a party and indemnification could have been sought hereunder by result of Expedia's decision to defend any such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingclaim or demand.

Claims for Indemnification. Promptly after receipt by any indemnified person of (a) A party seeking indemnification hereunder (the "Indemnitee") shall give to the party from which indemnification is sought (the "Indemnitor") written notice (a notice of a claim or the beginning "Claim Notice") of any action claim which is subject to the indemnity obligations set forth in this Agreement, with sufficient promptness so as not to prejudice the Indemnitor's interests in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing of such claim or and any obligation of indemnity arising therefrom. The Claim Notice shall set forth, to the best of the commencement Indemnitee's knowledge, all facts and other information with respect to the claim, including without limitation the anticipated amount of such actionLosses or reasonable estimate thereof. The failure to give prompt notice shall not affect the rights of the Indemnitee to indemnity hereunder, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (except to the extent that such omission failure either shall have materially and adversely affects prejudiced the indemnifying person’s ability Indemnitor in the defense of such claim or shall have materially increased the amount of the obligation of the Indemnitor. The Indemnitor receiving a Claim Notice may object to defend such actionClaim Notice by delivering written notice of such objection to the Indemnitee within fifteen (15) or from any liability otherwise than under days after receipt of the applicable Claim Notice. If the Indemnitor does not timely object to a Claim Notice in accordance with paragraph (b) of this Section 8. Subject to 9.4, the provisions hereinafter statedIndemnitor shall, within thirty (30) days after receipt of the Claim Notice, either (i) pay the amount of the claim set forth in the Claim Notice, if a monetary amount is involved, in case any such action shall be brought against an indemnified personaccordance with this Section 9, or (ii) if a claim of a third party is involved, have the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled right to assume the defense thereofof such claim. The Indemnitor shall have the exclusive right to conduct and control, with through counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election own choosing, the defense of any such claim or any action arising therefrom; provided, that in conducting the defense of any such claim or action, the Indemnitor shall, and shall cause its counsel to, consult with the Indemnitee and counsel, if any, selected by it, and shall keep such counsel, if any, and the Indemnitee fully advised of the progress thereof. If the Indemnitor fails or refuses to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with and control of the defense thereofof any such claim or action, provided, however, that if there exists or then the Indemnitee shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person conduct and control such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying persondefense; provided, however, that no indemnifying person shall be responsible for in conducting the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect defense of any amounts paid in settlement such claim or action, the Indemnitee shall, and shall cause its counsel to, consult with the Indemnitor and counsel, if any, selected by it, and shall keep such counsel, if any, and the Indemnitor fully advised of the progress thereof. So long as the Indemnitor is conducting the defense of any action unless third party claim in accordance with this Section 9.4(a), (i) the indemnifying person shall have approved Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the terms defense of such settlement; provided that such the third party claim, (ii) the Indemnitee will not consent shall not be unreasonably withheld. No indemnifying person shall, to the entry of any judgment or enter into any settlement with respect to the third party claim without the prior written consent of the indemnified person, effect Indemnitor (such consent not to be withheld unreasonably) and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the third party claim without the prior written consent of any pending the Indemnitee (such consent not to be withheld unreasonably and such consent not to be withheld at all if the judgment or threatened proceeding in respect of which any indemnified person is or could have been settlement contains a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional full release of such indemnified person from all liability on claims that are reasonably satisfactory to the subject matter of such proceedingIndemnitee.)

Claims for Indemnification. Promptly after receipt by Whenever any indemnified person Seller's Claim shall arise for indemnification of a notice under this Article X, the VMI Shareholders and the INFUSYSTEM Shareholders shall notify I-FLOW and I-FLOWSUB of a claim or the beginning Seller's Claim and, when known, the facts constituting the basis for such Seller's Claim. In the event of any action Seller's Claim for indemnification hereunder resulting from or in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8connection with any Seller's Claim or legal proceedings by a third party, such indemnified person notice shall also specify, if known, the amount or an estimate of the amount of the liability arising therefrom. The VMI Shareholders and the INFUSYSTEM Shareholders shall give I-FLOW and I-FLOWSUB a reasonable opportunity to defend any such Seller's Claim at its own expense and with counsel of their own selection and reasonably acceptable to the VMI Shareholders and the INFUSYSTEM Shareholders, provided that the VMI Shareholders and the INFUSYSTEM Shareholders shall at all times also have the right to fully participate in the defense at their own expense. If I-FLOW and I-FLOWSUB shall, within a reasonable time after notice, fail to defend, the VMI Shareholders and the INFUSYSTEM Shareholders shall have the right to undertake the defense of, and to compromise or settle (exercising reasonable business judgment) the Seller's Claim on behalf, for the account, and at the risk of, I-FLOW and I-FLOWSUB. The VMI Shareholders and the INFUSYSTEM Shareholders shall notify the indemnifying person I-FLOW and I-FLOWSUB in writing of such claim or the existence of the commencement of such actionany Seller's Claim to which I-FLOW and I-FLOWSUB's indemnification would apply, but the omission failure to so notify the indemnifying person will I-FLOW and I-FLOWSUB shall not relieve it from I-FLOW and I-FLOWSUB of any liability which it may have to any indemnified person under this Section 8 (except hereunder unless and to the extent that such omission materially failure causes I-FLOW and adversely affects I-FLOWSUB to lose the indemnifying person’s ability right to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the assert a reasonable defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingSeller's Claim.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of Any Indemnitee making a claim under this Article IX shall give COMARCO and the Company or the beginning Buyer, as the case may be (the "Indemnifying Party"), written notice (the "Indemnification Notice") of any claim (including the receipt of any demand) or the commencement of any action in with respect of to which indemnity is to may be sought against an indemnifying person pursuant to this Section 8by the Indemnitee (individually, such indemnified person shall notify a "Claim" and collectively, the indemnifying person "Claims") as soon as reasonably practicable but in writing no event more than 30 days after the Indemnitee has received notice or obtained actual knowledge of such claim or of Claim (provided that failure to give such notice shall not limit the commencement of such action, but the omission to so notify the indemnifying person will not relieve it from any liability which it may have to any indemnified person under this Section 8 (Indemnifying Party's indemnification obligation hereunder except to the extent that such omission materially and the delay in giving, or failure to give, the notice adversely affects the indemnifying person’s Indemnifying Party's ability to defend such actionagainst the Claim). To the extent reasonably practicable, the Indemnification Notice shall state the nature, basis and amount of the indemnification claim and include any relevant supporting documentation. The right of the Indemnitee to indemnification for a Claim shall be deemed to be accepted by the Indemnifying Party (the "Permitted Indemnification Claim") or from any liability otherwise than under this Section 8. Subject unless, within 30 days after the Indemnifying Party's receipt of the Indemnification Notice, the Indemnifying Party shall notify the Indemnitee in writing that it objects to the provisions hereinafter stated, in case right of the Indemnitee to indemnification with respect to the Claim (the "Indemnification Objection Notice"). If the Indemnifying Party contests the propriety of any such action claim described in the Indemnification Notice and/or the amount of Damages associated with such claim, then the Indemnifying Party shall deliver to the Indemnitee a written notice detailing with reasonable specificity all objections the Indemnitee has with respect to the claims contained in the Indemnification Notice ("Indemnification Objection Notice"). If the Indemnifying Party and the Indemnitee are unable to resolve the disputed matters described in the Indemnification Objection Notice within 15 days after the date the Indemnitee received the Indemnification Objection Notice, the disputed matters will be subject to the dispute resolution procedures set forth in Section 10.15 hereof. Any undisputed claims contained in the Indemnification Notice shall be brought against deemed to be final and binding upon the Indemnifying Party(ies) and shall constitute an indemnified personApproved Claim and a Permitted Indemnification Claim. If the arbitrator's determination of any disputed claims results in all or any portion of such claim properly being subject to set-off or indemnification pursuant to this Article IX, the indemnifying person such claim or portion thereof shall be entitled to participate therein, and, to final and binding upon the extent that it Indemnifying Party(ies) and shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist constitute an Approved Claim and/or a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent of the indemnified person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingPermitted Indemnification Claim.

Claims for Indemnification. Promptly after receipt by any indemnified person of a notice of If a claim or the beginning of any action in respect of which indemnity for Damages -------------------------- (a "CLAIM") is to be sought made by a party entitled to indemnification hereunder against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing party, the party claiming such indemnification shall give written notice (a "CLAIM NOTICE") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of such claim any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Article 8. Such Claim Notice shall --------- specify the nature and amount of the commencement Claim asserted, if actually known to the party entitled to indemnification hereunder. If any lawsuit or enforcement action is filed against any party entitled to the benefit of such actionindemnity hereunder, but the omission written notice thereof shall be given to so notify the indemnifying person will not relieve it from party as promptly as practicable (and in any liability which it may have to event within 15 calendar days after the service of the citation or summons). The failure of any indemnified person under this Section 8 (party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend party demonstrates actual damage caused by such action) or from any liability otherwise than under this Section 8failure. Subject to the provisions hereinafter statedAfter such notice, in case any such action shall be brought against an indemnified person, if the indemnifying person party shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered acknowledge in writing to the indemnified person promptly after receiving party that the aforesaid notice from indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the indemnifying party shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified personparty that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such Claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. If the indemnifying party fails to assume the defense thereof, with counsel reasonably satisfactory to of such indemnified person. After notice from Claim within 15 calendar days after receipt of the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereofClaim Notice, the indemnified person shall be entitled party against which such Claim has been asserted will (upon delivering notice to retain its own counsel such effect to the indemnifying party) have the right to undertake, at the expense indemnifying party's cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying personparty; provided, however, that no indemnifying person such Claim shall not be responsible for compromised or settled without -------- ------- the fees and expenses written consent of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such party, which consent shall not be unreasonably withheld. No indemnifying person shall, without In the prior written consent event the indemnified party assumes the defense of the Claim, the indemnified personparty will keep the indemnifying party reasonably informed of the progress of any such defense, effect compromise or settlement. The indemnifying party shall be liable for any settlement of any pending or threatened proceeding action effected pursuant to and in respect accordance with this Article 8 and for any final judgment (subject to any right of which appeal), --------- and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any indemnified person is or could have been a party and indemnification could have been sought hereunder Damages by such indemnified person, unless reason of such settlement includes an unconditional release of such indemnified person from all liability on claims that are the subject matter of such proceedingor judgment.

Claims for Indemnification. Promptly after receipt Notwithstanding the provisions of Section 7.2(b), if Acquiror or the Merger Sub becomes aware of any Losses for which any member of the Purchaser Group will seek indemnification, Acquiror or the Merger Sub shall deliver to the Escrow Agent, with a copy to the Stockholders' Agent, on or before the Termination Date, a certificate signed by any indemnified person officer of Acquiror or the Merger Sub (an "Officer's Certificate") stating that with respect to the indemnification obligations set forth in Section 7.2, Losses exist and specifying in reasonable detail the individual items of such Losses included in the amount so stated, the date each such item was paid, properly accrued or arose, the nature of the misrepresentation, breach of warranty, covenant or claim to which such item is related and an estimate of attorney's fees and expenses necessary to conclude the matter. If the Stockholders' Agent does not object to such claims within thirty (30) calendar days of the delivery of the Officer's Certificate to the Stockholders' Agent, then after delivery of a written notice of a claim or cancellation (the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 8, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such action, but the omission to so notify the indemnifying person will not relieve it "Cancellation Notice") from any liability which it may have to any indemnified person under this Section 8 (except Acquiror to the extent that such omission materially and adversely affects the indemnifying person’s ability to defend such action) or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter statedStockholders' Agent, in case any such action shall be brought against an indemnified person, the indemnifying person Acquiror shall be entitled to participate thereinreceive from the Escrow Agent Shares out of the Escrow Fund on a pro rata basis as among all holders of Shares based on the percentages in Schedule 1.5, and, with all such Shares to be received from Escrow having an aggregate Stated Price equal to the extent that it Losses, and in such event the Escrow Agent shall elect by written notice delivered deliver to Acquiror the foregoing number of Shares from the Escrow Fund. If the Stockholders' Agent objects to such claims within such thirty (30) day period, Acquiror shall not receive from the Escrow Agent Shares out of the Escrow Fund and shall not notify the Escrow Agent to release to Acquiror Shares out of the Escrow Fund until such objection is resolved to the indemnified person promptly after receiving the aforesaid notice from such indemnified personmutual satisfaction of Stockholders' Agent and Acquiror or pursuant to a final, non-appealable court order. Acquiror shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shall, without the prior written consent notify each of the indemnified person, effect any settlement Indemnifying Parties of any pending or threatened proceeding in respect the number of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person from all liability on claims Shares that are the subject matter of such proceedingto cancellation.

Claims for Indemnification. Promptly after receipt by any indemnified A person of a notice of a claim or the beginning of any action in respect of which indemnity is entitled to be sought against an indemnifying person pursuant to indemnification under this Section 8, such indemnified 7.1 (an “Indemnified Party”) shall give prompt written notification to the person shall notify from whom indemnification is sought (the indemnifying person in writing of such claim or “Indemnifying Party”) of the commencement of such any action, but suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the omission assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to so notify the indemnifying person will give notice of a third-party claim as provided in this Section 7.1(c) shall not relieve it from any liability which it may have to any indemnified person the Indemnifying Party of its indemnification obligation under this Section 8 (Agreement except and only to the extent that such omission materially and adversely affects Indemnifying Party is actually damaged as a result of such failure to give notice). Within thirty (30) days after delivery of such notification, the indemnifying person’s ability Indemnifying Party may, upon written notice thereof to defend the Indemnified Party, assume control of the defense of such action) , suit, proceeding or from any liability otherwise than under this Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person, the indemnifying person shall be entitled to participate therein, and, to the extent that it shall elect by written notice delivered to the indemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume the defense thereof, claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such indemnified persondefense, the Indemnified Party shall control such defense. After notice The Party not controlling such defense may participate therein at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the indemnifying person Indemnifying Party and the Indemnified Party *CONFINDENTIAL TREATMENT REQUESTED have conflicting interests with respect to such indemnified person of its election to assume action, suit, proceeding or claim, the defense thereof, such indemnifying person Indemnifying Party shall not be liable to such indemnified person responsible for any legal the reasonable fees and expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying personIndemnified Party solely in connection therewith; provided, however, that in no indemnifying person event shall the Indemnifying Party be responsible for the fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified partiesIndemnified Parties. In no event The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall have approved the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying person shallaction, suit, proceeding or claim without the prior written consent of the indemnified personIndemnifying Party, effect which shall not be unreasonably withheld, delayed or conditioned. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim or consent to any pending or threatened proceeding judgment in respect of which any indemnified person is or could have been thereof that does not include a party complete and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of such indemnified person the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on claims that are the subject matter Indemnified Party without the prior written consent of such proceedingthe Indemnified Party.