Common use of Indemnification Obligations Clause in Contracts

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, subject to the terms and provisions of this Agreement, serve as a source, but not the sole source, of payment for the indemnity obligations under Article 12 of the Asset Purchase Agreement, including any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase Agreement.

Indemnification Obligations. Seller will protect, defend, indemnify and hold Buyer harmless from and against (a) any third party claims arising or accruing prior to Closing under the Ground Lease, any Assigned Contract, or other agreement affecting the Property to which Seller acknowledges and agrees that the Subject Funds may, subject to the terms and provisions of this Agreement, serve as is a sourceparty (including, but not the sole sourcelimited to, of payment for the indemnity obligations claims from any broker claiming, by, through, or under Article 12 of the Asset Purchase AgreementSeller and any claims or liens arising from any construction, including any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent design or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(bother work agreement), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. ; (b) Notwithstanding any provision third party claims for infringement of intellectual property rights related to design documents for the Property; (c) any claim that results from any breach of any representation or warranty of Seller under this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnityAgreement; provided, however, that if one (i) Buyer shall not have any right to bring any action after Closing against Seller for any said claim unless (x) the individual amount of each liability of Buyer arising under each such claim exceeds TWENTY THOUSAND AND NO/100 DOLLARS ($20,000.00), and (y) until the aggregate amount of all liability of Seller arising out of or more Escrow Adjustments are made against relating to such claim(s) exceeding the Subject Earnout Shares individual threshold in (x), above, exceeds TWO-HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00), and it is later determined that (ii) in no event shall Seller’s liability for all claims exceed, in the Earnout Milestones were not metaggregate, Parent an amount equal to FIFTY MILLION AND NO/100 DOLLARS ($50,000,000.00) (the “Seller Liability Cap”), and (iii) Seller shall have no liability with respect to any of Seller’s representations and warranties herein if, prior to Closing, Buyer has actual knowledge of any breach of such representation or warranty of Seller herein and Buyer shall have nonetheless consummates the right to obtain the Escrow Adjustment(s) transaction contemplated by this paragraph Agreement, nor to the extent such claim of Buyer constitutes or results from a breach by Buyer or a matter which is the responsibility of Buyer under this Agreement or any document executed by Buyer pursuant to this Agreement; provided, in the event Allegheny Electric Cooperative, Inc. asserts its right to participate in a Buyer nuclear reactor project on the Property by exercising its rights detailed in the Project Agreement (defined below) and the Title Policy (the “AEC Option”), the Seller Liability Cap shall be increased by THIRTY MILLION AND NO/100 DOLLARS ($30,000,000.00) solely as it relates to claims directly resulting from such assertion by Allegheny Electric Cooperative, Inc. Buyer will protect, defend, indemnify and hold Seller harmless from and against (i) any claim that results from any breach of any representation or warranty of Buyer under this Agreement, and (ii) any claim relating to the Property and first arising or accruing after the Closing, including any claim first arising or accruing after the Closing under any Permitted Exception, the Ground Lease, or Assigned Contract (except to the extent such claim constitutes or results from a breach by Seller or a matter which is the responsibility of Seller under this Agreement or any document executed by Seller pursuant to this Agreement); provided, however, that, in no event shall Buyer’s liability for all claims directly resulting from the Subject Purchase Shares and Escrow Cash or against AEC Option exceed, in the Seller or aggregate, an amount equal to TEN MILLION AND NO/100 DOLLARS ($10,000,000.00). Notwithstanding anything to the Covenantors directly as contrary set forth in this Section 12.6 12, in the event a mechanic’s lien is filed against the Property in connection with any construction, design or other work agreement to which Seller or its affiliate is a party, Seller shall use commercially reasonable efforts to cause any such lien to be removed or bonded over within sixty (60) days of Seller’s receipt of Buyer’s written demand for the Asset Purchase Agreementsame. This Section 12 will survive Closing.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, subject to the terms and provisions Notwithstanding any other provision of this Agreement, serve as a sourceeach party (an "INDEMNIFYING PARTY") shall defend, but not indemnify, save and keep harmless the sole sourceother parties, the Partnership and their respective successors and permitted assigns (collectively, the "INDEMNIFIED PARTIES") against and from any and all Damages sustained or incurred by any of payment for the indemnity obligations under Article 12 them resulting from or arising out of the Asset Purchase Agreement, including or by virtue of: (a) any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 breach of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent representation or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be warranty made by the release from escrow and Indemnifying Party in this Agreement or in any closing document delivered to the Indemnified Parties in connection with this Agreement, except, in the case of any breach of any representation or warranty made by Gannett in Article VII hereof, to the extent such breach is effectively cured by the delivery by Gannett to Parent each of the other parties hereto of one or Buyermore revisions to Section 7.3 through Section 7.25 of its Disclosure Schedule within fifteen days of the date of the Closing, so long as any such Section of Gannett's Disclosure Schedule, as so revised, does not, upon such revision, contain exceptions or limitations which will have a proportionately greater adverse financial impact upon the case may be (each such payment, an “Escrow Adjustment”), Partnership than the limitations or exceptions disclosed in either of Subject Funds equal the comparable sections of the MediaNews Parties or DR Partners Disclosure Schedules in the form delivered prior to the sum of Damages plus any Prevailing Party Award.Closing; (b) Notwithstanding any provision breach by the Indemnifying Party of, or failure by the Indemnifying Party to comply with, any of its covenants or obligations under this Agreement (including, without limitation, their obligations under this Article XI); (c) the failure to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) discharge when due any of the Asset Purchase Agreement as a result of Seller’s failure to pay Indemnifying Party's Excluded Liabilities, or any required state sales Taxes in any applicable jurisdiction. To claim against the extent there shall be an Escrow Adjustment Indemnified Parties with respect to any of the Indemnifying Party's Excluded Liabilities, or (d) any liability arising out of the Indemnifying Party's ownership or operation of such Claimparty's Newspapers or Assets which are the subject of this Agreement, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock other than those Liabilities which are reflected on the day prior to releaseFinal Working Capital Statements described in Section 4.5(b) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; providedthis Agreement. In no event, however, that if one shall: (a) the MediaNews Parties be obligated to indemnify the Partnership with respect to any breaches of any representation or more Escrow Adjustments are made against warranty under Section 11.2(a) hereof (except for breach of representations and warranties under Section 5.20 hereof) until the Subject Earnout Shares aggregate amount of all Damages sustained or incurred by the Partnership for which the MediaNews Parties would by virtue of the foregoing be responsible exceeds $550,000, and it is later determined that then the Earnout Milestones were not metMediaNews Parties' liability therefor shall be limited only to the amount of such excess; (b) DR Partners be obligated to indemnify the Partnership with respect to any breach of any representation or warranty under Section 11.2(a) hereof (except for breaches of representations under Section 6.20 hereof) until the aggregate amount of all Damages sustained or incurred by the Partnership for which DR Partners would by virtue of the foregoing be responsible exceeds $300,000, Parent and Buyer then DR Partners' liability therefor shall have only be limited to the right amount of such excess and (c) Gannett be obligated to obtain indemnify the Escrow Adjustment(sPartnership with respect to any breach of any representation or warranty under Section 11.2(a) contemplated hereof (except for breaches of representations and warranties under Section 7.20 hereof) until the aggregate amount of all Damages sustained or incurred by the Partnership for which Gannett would by virtue of the foregoing be responsible exceeds $150,000, and then Gannett's liability therefore shall be limited only to the amount of such excess. In addition, no party shall be liable to indemnify the other parties with respect to any breach of which such other party(ies) had actual knowledge prior to the Closing. Any indemnification obligation arising under this paragraph from Article XI shall be discharged by a capital contribution by the Subject Purchase Shares and Escrow Cash or against Partner owing such obligation to the Seller Partnership in the amount of the Damages relating thereto. From the date of determination of such obligation (which shall be the date agreed by the parties or the Covenantors directly date of a final binding determination by a mediator or the date of a final, non-appealable determination by a court of competent jurisdiction, as set forth applicable) to the date such capital contribution is made in Section 12.6 immediately available funds, the amount of such obligations shall accrue interest at a rate of 9 percent per annum, which interest shall be charged to the capital account of the Asset Purchase AgreementPartner owing such obligation.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, The indemnification obligations under this Agreement shall be subject to the terms and provisions following provisions: 12.12.1 The party seeking indemnification (“Indemnitee”) shall notify the other party (“Indemnitor”) of this Agreement, serve as a sourceany claim against Indemnitee within forty-five (45) days after it has notice of such claim, but not failure to notify Indemnitor shall in no case prejudice the sole sourcerights of Indemnitee under this Agreement unless Indemnitor shall be prejudiced by such failure and then only to the extent of such prejudice. Should Indemnitor fail to discharge or undertake to defend Indemnitee against such liability (with counsel reasonably approved by Indemnitee), of payment for the indemnity obligations under Article 12 within thirty (30) days after Indemnitee gives Indemnitor written notice of the Asset Purchase Agreementsame, then Indemnitee may settle such claim, and Indemnitor’s liability to Indemnitee shall be conclusively established by such settlement, the amount of such liability to include both the settlement consideration and the reasonable costs and expenses, including any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) mayfees, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made incurred by the release from escrow and delivery to Parent or Buyer, as the case may be (each Indemnitee in effecting such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdictionsettlement. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer Indemnitee shall have the right to obtain employ its own counsel in any such case, but the Escrow Adjustment(sfees and expenses of such counsel shall be at the expense of Indemnitee unless: (a) contemplated the employment of such counsel shall have been authorized in writing by Indemnitor in connection with the defense of such action, (b) Indemnitor shall not have employed counsel to direct the defense of such action, or (c) Indemnitee shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Indemnitor (in which case Indemnitor shall not have the right to direct the defense of such action or of Indemnitee), in any of which events such fees and expenses shall be borne by Indemnitor. 12.12.2 The indemnification obligations under this paragraph from Agreement shall cover the Subject Purchase Shares costs and Escrow Cash expenses of Indemnitee, including reasonable attorneys’ fees, related to any actions, suits or against the Seller or the Covenantors directly as set forth in Section 12.6 judgments incident to any of the Asset Purchase Agreementmatters covered by such indemnities. 12.12.3 The indemnification obligations under this Agreement shall also extend to cover any claim against any present or future advisor, trustee, director, officer, partner, member, manager, employee, beneficiary, shareholder, fiduciary, participant or agent of or in Indemnitee or any entity now or hereafter having a direct or indirect ownership interest in Indemnitee.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, The indemnification obligations under this Agreement shall be subject to the terms and provisions following provisions: (1)The party seeking indemnification (“Indemnitee”) shall notify the other party (“Indemnitor”) of this Agreement, serve as a source, but not the sole source, of payment for the indemnity obligations under Article 12 of the Asset Purchase Agreement, including any Claim against Indemnitee within forty five (as hereinafter defined45) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 days after it has notice of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment but failure to notify Indemnitor shall in no case prejudice the rights of Indemnitee under this Agreement unless Indemnitor shall be paid first from prejudiced by such failure and then only to the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion extent of such funds prejudice. Should Indemnitor fail to discharge or undertake to defend Indemnitee against such liability (with counsel approved by Indemnitee), within thirty (30) days after Indemnitee gives Indemnitor written notice of the same, then Indemnitee may defend and settle such Claim, and Indemnitor's liability to Indemnitee shall Subject Purchase Shares or Escrow Cash be available for conclusively established by such indemnity; providedsettlement, howeverthe amount of such liability to include both the settlement consideration and the reasonable costs and expenses, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not metincluding reasonable attorneys' fees, Parent and Buyer incurred by Indemnitee in effecting such settlement. Indemnitee shall have the right to obtain employ its own counsel in any such case, but the Escrow Adjustment(sfees and expenses of such counsel shall be at the expense of Indemnitee unless: (a) contemplated the employment of such counsel shall have been authorized in writing by this paragraph Indemnitor in connection with the defense of such action, (b) Indemnitor shall not have employed counsel to direct the defense of such action or any such counsel employed by Indemnitor shall have failed to commence or pursue such defense, or (c) Indemnitee shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Indemnitor (in which case Indemnitor shall not have the Subject Purchase Shares right to direct the defense of such action or of Indemnitee), in any of which events such fees and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase Agreementexpenses shall be borne by Indemnitor.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, The indemnification obligations under this Agreement shall be subject to the terms and provisions following provisions: (1) The party seeking indemnification (“Indemnitee”) shall notify the other party (“Indemnitor”) of this Agreement, serve as a source, but not the sole source, of payment for the indemnity obligations under Article 12 of the Asset Purchase Agreement, including any Claim against Indemnitee within forty-five (as hereinafter defined45) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 days after it has notice of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment but failure to notify Indemnitor shall in no case prejudice the rights of Indemnitee under this Agreement unless Indemnitor shall be paid first from prejudiced by such failure and then only to the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion extent of such funds prejudice. Should Indemnitor fail to discharge or undertake to defend Indemnitee against such liability (with counsel approved by Indemnitee), within thirty (30) days after Indemnitee gives Indemnitor written notice of the same, then Indemnitee may defend and settle such Claim, and Indemnitor’s liability to Indemnitee shall Subject Purchase Shares or Escrow Cash be available for conclusively established by such indemnity; providedsettlement, howeverthe amount of such liability to include both the settlement consideration and the reasonable costs and expenses, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not metincluding attorneys’ fees, Parent and Buyer incurred by Indemnitee in effecting such 40 settlement. Indemnitee shall have the right to obtain employ its own counsel in any such case, but the Escrow Adjustment(sfees and expenses of such counsel shall be at the expense of Indemnitee unless: (a) contemplated the employment of such counsel shall have been authorized in writing by this paragraph Indemnitor in connection with the defense of such action, (b) Indemnitor shall not have employed counsel to direct the defense of such action or any such counsel employed by Indemnitor shall have failed to commence or pursue such defense, or (c) Indemnitee shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Indemnitor (in which case Indemnitor shall not have the Subject Purchase Shares right to direct the defense of such action or of Indemnitee), in any of which events such fees and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase Agreementexpenses shall be borne by Indemnitor.

Indemnification Obligations. The following provisions shall apply to, and be deemed in each case to modify, each of the provisions of this instrument (except those set forth in Sections 2.12 and 6.11 hereof) and the other Security Documents (except to the extent otherwise expressly provided therein) wherein the Mortgagor is obligated to indemnify each of the Indemnified Persons: (a) Seller acknowledges Mortgagor agrees to indemnify the Agent against all legal and agrees that the Subject Funds may, subject to the terms and provisions of this Agreement, serve as administrative proceedings for which a source, but not the sole source, of payment for the indemnity obligations under Article 12 of the Asset Purchase Agreement, including any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims claim for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, may be made by the release from escrow Indemnified Person (herein, collectively, called "Indemnification Claims") made against or incurred by them or any of them as a consequence of the assertion, either before or after the payment in full of the Indebtedness, that they or any of them received Hydrocarbons herein assigned or the proceeds thereof claimed by third persons and delivery the Agent shall have the right to Parent defend against any such Indemnification Claims, employing attorneys therefor, and unless furnished with reasonable indemnity, they or Buyer, any of them shall have the right to pay or compromise and adjust all such Indemnification Claims. The Mortgagor will indemnify and pay to the Agent any and all such amounts as the case may be (each such paymentpaid in respect thereof or as may be successfully adjudged against the Agent. The obligations of the Mortgagor as hereinabove set forth in this Section 3.6 shall survive the release termination, an “Escrow Adjustment”), foreclosure or assignment of Subject Funds equal to the sum of Damages plus this instrument or any Prevailing Party Awardsale hereunder. (b) Notwithstanding The Mortgagor shall pay when due any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment judgments with respect to an Indemnification Claim against any of the Indemnified Persons and which are rendered by a final order or decree of a court of competent jurisdiction from which no further appeal may be taken or has been taken within the applicable appeal period. In the event that such payment is not made, any of the Indemnified Persons at its sole discretion may pay any such judgments, in whole or in part, and look to the Mortgagor for reimbursement pursuant to this instrument, or may proceed to file suit against the Mortgagor to compel such payment. (c) Any amount which the Mortgagor is obligated to pay to or for the benefit of an Indemnified Person with respect to an Indemnification Claim, such Escrow Adjustment but which is not paid when due, shall be paid first bear interest at the default or post maturity rate of interest provided for in the Note from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of date such funds shall Subject Purchase Shares or Escrow Cash be available for amount is due until such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it amount is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase Agreementpaid.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, subject to the terms and other provisions of this AgreementArticle VII, serve from and after the Closing, the Sellers shall jointly and severally indemnify the Purchaser and each of its Affiliates (which, following the Closing, shall include the Company and the Company Subsidiaries) and its and their respective directors, officers, employees, stockholders, partners, members, managers, agents and representatives (each, a “Purchaser Indemnified Party”) for any Losses actually incurred by such Purchaser Indemnified Party as a source, but not the sole source, of payment for the indemnity obligations under Article 12 result of the Asset Purchase Agreement, including breach of: (i) any Claim representation and warranty of the Sellers set forth in Article II which is surviving (as hereinafter definedset forth in Section 7.1) resolved pursuant on the date on which a Notice of Claim is delivered to Section 2.3. Notwithstanding the foregoing, pursuant Stockholder Representative relating thereto; or (ii) any covenant or agreement contained in this Agreement in which the Sellers agree to Section 12.6 cause the Company or any of the Asset Purchase AgreementCompany Subsidiaries to take or not take some action, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) the extent a Notice of Claim is delivered to the Stockholder Representative relating thereto prior to the expiration of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees Indemnity and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Earnout Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party AwardPeriod. (b) Notwithstanding any provision Subject to the other provisions of this Agreement to Article VII, from and after the contraryClosing, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) each Seller shall, severally and not jointly, indemnify each of the Asset Purchase Agreement Purchaser Indemnified Parties for any Losses actually incurred by such Purchaser Indemnified Party as a result of Seller’s failure to pay the breach of: (i) any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) representation and only upon exhaustion warranty of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it Seller set forth in Article III which is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly surviving (as set forth in Section 12.6 7.1) on the date on which a Notice of Claim is delivered to the Stockholder Representative relating thereto; or (ii) any covenant or agreement contained in this Agreement in which an individual Seller (or Sellers) has agreed to take or not take some action, to the extent a Notice of Claim is delivered to the Stockholder Representative relating thereto on or before (x) the expiration of the Asset Purchase AgreementIndemnity and Escrow Earnout Period, with respect to any covenant or agreement that by its terms is to be performed in full on or prior to the Closing Date and (y) the expiration of the statute of limitations applicable thereto, for each other covenant or agreement. (c) Subject to the other provisions of this Article VII, from and after the Closing, the Purchaser shall indemnify the Sellers and each of their respective Affiliates, directors, officers, employees, stockholders, partners, members, managers, agents and representatives (each, a “Seller Indemnified Party”) for any Losses actually incurred by such Seller Indemnified Party as a result of the breach of: (i) any representation and warranty of the Purchaser set forth in Article IV which is surviving (as set forth in Section 7.1) on the date on which a Notice of Claim is delivered to the Purchaser relating thereto; or (ii) any covenant or agreement of the Purchaser contained in this Agreement to the extent a Notice of Claim is delivered to the Purchaser relating thereto on or before the expiration of the statute of limitations applicable thereto, or if to be performed on or prior to the Closing Date, by the end of the Indemnity and Earnout Escrow Period.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, subject to the terms and provisions Notwithstanding any other provision of this Agreement, serve as a sourceeach party (an "Indemnifying Party") shall defend, but not indemnify, save and keep harmless the sole sourceother Partners, the Partnership and their respective successors and permitted assigns (collectively, the "Indemnified Parties") against and from any and all Damages sustained or incurred by any of payment for the indemnity obligations under Article 12 them resulting from or arising out of the Asset Purchase Agreement, including or by virtue of: (a) any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 breach of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent representation or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be warranty made by the release from escrow and delivery to Parent Indemnifying Party in this Agreement or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal in any closing document delivered to the sum of Damages plus any Prevailing Party Award.Indemnified Parties in connection with this Agreement; (b) Notwithstanding any provision breach by the Indemnifying Party of, or failure by the Indemnifying Party to comply with, any of its covenants or obligations under this Agreement (including, without limitation, their obligations under this Article XII); or, (c) any indemnification obligation of such party or any affiliate thereof arising under the provisions of Article X of the Contribution Agreement. Any indemnification obligation arising under this Article XII and/or Article X of the Contribution Agreement shall be discharged by a capital contribution by the Partner owing such obligation to the contrary, Partnership in the Subject Earnout Shares amount of the Damages relating thereto. Any payment by the Partnership of Damages to which an indemnification obligation relates shall serve solely be charged as a source distribution to the Indemnifying Partner and taken into account for payment for indemnification Claims purposes of current and future distributions made by Parent or Buyer the Partnership pursuant to Section 12.2(a)(iii5.1. In addition, no item of Partnership property shall be revalued to reflect such indemnification payment. From the date of determination of such obligation (which shall be the date agreed by the parties or the date of a final binding determination by a mediator or the date of a final, non-appealable determination by a court of competent jurisdiction, as applicable) and until such obligation (and all accrued interest, if any, with respect thereto) has been paid in full in cash or other immediately available funds, all cash distributions to which a Partner shall otherwise be entitled to receive pursuant to Section 5.1(a) hereof, shall instead be retained by the Partnership and credited to the discharge of the Asset Purchase Agreement as a result of Seller’s failure obligation to make such capital contribution and to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly accrued but unpaid interest as set forth provided in Section 12.6 of the Asset Purchase Agreement3.1(c) hereof.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, The indemnification obligations under this Agreement shall be subject to the terms and following provisions, provided, however, that to the extent any of the provisions of this Section 12J are inconsistent with the provisions of Sections 12B or 12E of this Agreement, serve the provisions of Sections 12B or 12E, as a source, but not the sole sourceapplicable, of payment for this Agreement shall govern and control: (1) Promptly after receipt by a party seeking indemnification (an "Indemnified Party") of notice of any claim, the indemnity obligations Indemnified Party will, if a claim in respect thereof is to be made against the other party (the "Indemnifying Party") under Article 12 Section 12I, notify the Indemnifying Party in writing thereof; but the omission to so notify the Indemnifying Party will not relieve such Indemnifying Party from any liability that it may have to any Indemnified Party hereunder, except to the extent that such omission resulted in a prejudice, the incurrence of additional liabilities or the loss of substantial defenses. In case any such claim is made against any Indemnified Party and it notifies the Indemnifying Party thereof, the Indemnifying Party shall jointly with any other Indemnifying Party similarly notified, assume the defense thereof, with counsel reasonably satisfactory to the Indemnified Party (who shall not, except with the consent of the Asset Purchase AgreementIndemnified Party, including be counsel to the Indemnifying Party), and after notice from the Indemnifying Party to such Indemnified Party of its assumption of the defense thereof and approval by the Indemnified Party of the counsel appointed by the Indemnifying Party, the Indemnifying Party will not be liable to such Indemnified Party under Section 12I and this Section 12J for any Claim (as hereinafter defined) resolved pursuant to Section 2.3legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoingpreceding sentence, the Indemnified Party shall have the right to employ its own counsel, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless: (a) the employment of such counsel shall have been authorized in writing by the Indemnifying Party; (b) the Indemnifying Party shall not have employed counsel to assume the defense of a claim; (c) the claim involves matters of a criminal nature; or (d) the Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such action or of the Indemnified Party) in any of which events such fees and expenses shall be borne by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any such claim effected by an Indemnified Party without the written consent of the Indemnifying Party but, if settled with the written consent of the Indemnifying Party, the Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any loss or liability by reason of such settlement; provided, however, should the Indemnifying Party fail to assume the defense of the Indemnified Party against any claim within thirty (30) days after the Indemnified Party gives the Indemnifying Party written notice, then the Indemnified Party may settle such claim and the Indemnifying Party's liability shall be conclusively established by such settlement, the amount of such liability to include both the settlement consideration and the reasonable costs and expenses, including attorneys' fees, incurred by the Indemnified Party in effecting such settlement. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any claim for which indemnity is sought pursuant to this Section 12.6 12J, unless such settlement (i) includes an unconditional release of such Indemnified Party from all liability on any claims that are the Asset Purchase subject matter of such claim and (ii) does not include a statement as to or admission of, fault, culpability or a failure to act by or on behalf of any such Indemnified Party. (2) If the indemnification provided for in subsections 12I(3), 12I(4) or 12J (but only with respect to claims made pursuant to subsections 12I(3) or 12I(4)) is unavailable or insufficient to hold harmless an Indemnified Party under those subsections, then the Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, liabilities and judgments referred to in subsection 12I(3), 12I(4), or 12J(1) above (but only with respect to claims made pursuant to subsections 12I(3) or 12I(4)) in such proportion as is appropriate to reflect the relative fault of Buyer on the one hand and the Seller on the other in connection with the statements or alleged statements or omissions or alleged omissions that resulted in such losses, claims, damages, liabilities or judgments, as well as any other relevant equitable considerations. The relative fault of Buyer and Seller shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by Buyer or Seller and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The rights provided in this section shall be continuing rights and will survive the Seller Partners' Meeting, expiration or termination of this Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyerand/or Closing, as the case may be (each such paymentbe, an “Escrow Adjustment”), until expiration of Subject Funds equal to the sum all applicable statutes of Damages plus any Prevailing Party Awardlimitation. (b3) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer and Seller agree that it would not be just and equitable if contribution pursuant to Section 12.2(a)(iii12J(2) were determined by pro rata allocation or by any other method of allocation which does not take account of the Asset Purchase Agreement equitable considerations referred to in Subsection 12J(2). The amount paid or payable by an Indemnified Party as a result of Seller’s failure the losses, claims, damages, liabilities or judgments referred to pay any required state sales Taxes in any applicable jurisdiction. To the extent there Subsection 12J(2) shall be an Escrow Adjustment deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Party in connection with respect investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933 and Section 18 of the Securities Exchange Act of 1934) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (4) The indemnification obligations under this Agreement shall cover the costs and expenses of the Indemnified Party, including reasonable attorneys' fees and expenses, related to any such Claimactions, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price causes of Parent common stock on the day prior action, suits or judgments incident to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 any of the Asset Purchase Agreementmatters covered by such indemnities. (5) The indemnification obligations under this Agreement shall also extend to cover any claim against any present or future advisor, trustee, director, officer, partner, member, manager, employee, beneficiary, shareholder, fiduciary, participant or agent of or in the Indemnified Party or any entity now or hereafter having a direct or indirect ownership interest in the Indemnified Party. (6) Except as otherwise expressly provided herein, each indemnification obligation under this Agreement shall survive the Closing for the Survival Period.

Indemnification Obligations. Provider agrees to indemnify, defend, and hold harmless the Company and its successors, subsidiaries and affiliates, and all respective stockholders, partners, members, directors, managers, officers, employees and agents related thereto (collectively, the “Indemnified Parties”) from and against any and all liabilities, claims, suits, actions, demands, settlements, losses, judgments, costs, damages, expenses (including reasonable attorneys’ fees), fines, penalties, including punitive or exemplary damages, and all reasonable costs of defense (collectively “Losses”) to the extent such Losses arise out of or result from: (a) Seller acknowledges and agrees that a negligent act, an intentional act, or an intentional omission by Provider, its employees, or agents related to or arising out of the Subject Funds maybusiness covered by this Agreement; (b) a breach by Provider of this Agreement including but not limited to any of its representations, subject to the terms and provisions of warranties, or covenants contained in this Agreement, serve as a sourceor (c) any failure of Provider, but not the sole source, of payment for the indemnity obligations under Article 12 of the Asset Purchase Agreement, including any Claim (as hereinafter defined) resolved pursuant its employees or agents to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject comply with laws applicable to the terms and provisions performance of Sections 2.1(b)services hereunder (collectively, 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow AdjustmentIndemnified Matters”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as . If a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as person asserts a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment claim with respect to any which Provider may become obligated to indemnify or defend an Indemnified Party pursuant to this Article 3, the Indemnified Party shall provide Provider with prompt written notice of such Claimclaim, including copies of all available material written evidence thereof. Provider shall proceed to defend such Escrow Adjustment claim in a diligent manner at the sole expense of Provider. The Indemnified Party may participate, at its sole cost and expense, in the defense of such claim. If Provider does not assume the defense of such claim, then the Indemnified Party may, at its election, proceed with the defense of such claim on its own, in which case all reasonable expenses relating to the defense of such claim shall be borne and paid first from exclusively by Provider. With respect to the Subject Earnout Shares defense of any claim, (valued at x) the closing price Party that is defending such claim shall (i) keep the Party that is not defending such claim informed of Parent common stock all material developments and events relating to such claim and (ii) not settle, adjust or compromise such claim without the prior written consent of the Party who is not defending such claim; which consent shall not be unreasonably withheld or delayed and (y) the Party that is not defending such claim shall make available to the Party who is defending such claim any documents and materials in its possession or control that may be necessary to the defense of such claim. Provider’s obligations under this Article 3 shall apply regardless of any negligence on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 part of the Asset Purchase AgreementIndemnified Parties.

Indemnification Obligations. 12.1. Subject to this Clause 12 and Clause 13 below, ▇▇▇▇▇▇▇▇ agrees to indemnify, defend and hold harmless ISV from and against all claims, damages, losses, liabilities and expenses (a) Seller acknowledges and agrees that the Subject Funds may, subject to the terms and provisions of this Agreement, serve as a sourceincluding, but not limited to, reasonable attorneys’ fees) arising out of any claim by a third party asserting that the sole sourceProduct or any of ISV’s use thereof, infringes upon any third party's patent, copyright or trademark, provided that (i) ISV promptly notifies Licensor in writing no later than thirty (30) days after ISV’s notice of payment for any potential claim, provided further that any failure to provide such notice shall only invalidate any obligation of indemnification to the indemnity obligations under Article 12 of extent such failure to provide timely notice materially adversely impacts Licensor’s ability to defend such claim (ii) ISV shall permit Licensor to defend, compromise or settle the Asset Purchase Agreementclaim, including any Claim (as hereinafter defined) resolved pursuant and provided further that no settlement intended to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement bind ISV shall be satisfied solely by the Subject Funds. Payment for any amount determined made without ISV’s express written consent and (iii) ISV gives Licensor all available information, reasonable assistance, and authority to be owing enable Licensor to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Awarddo so. 12.2. If a claim described in Paragraph 12.1 may or has been asserted, ISV will permit Licensor, at Licensor's option and expense, to (bi) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have procure the right to obtain continue using the Escrow Adjustment(sProduct, (ii) contemplated by this paragraph from replace or modify the Subject Purchase Shares and Escrow Cash Product to eliminate the infringement while providing functionally equivalent performance or against (iii) accept the Seller or the Covenantors directly as set forth in Section 12.6 return of the Asset Purchase AgreementProduct and refund to ISV the pro rata pre-paid amount for the remaining portion of the Initial Term or Renewal Term, as applicable. The foregoing in this Section shall be Licensor’s sole liability and ISV’s sole remedy for infringement or misappropriation of third-party intellectual property or proprietary rights. 12.3. Licensor shall have no indemnity obligation to ISV hereunder if the violation or infringement claim results from (i) a correction or modification of the Product not provided by Licensor or its authorized representative,

Indemnification Obligations. (a) Seller acknowledges and agrees that the [Intentionally omitted]. (b) Subject Funds may, subject to the terms and other provisions of this AgreementArticle VII, serve as a sourcefrom and after the Closing, but not the sole sourceSellers shall, of payment for the indemnity obligations under Article 12 severally in proportion to their respective Equity Interest Percentages, indemnify, defend and hold harmless each of the Asset Purchase AgreementPurchaser Indemnified Parties, including and pay on behalf of and reimburse each of the Purchaser Indemnified Parties in respect of, any Claim and all Losses incurred, suffered, sustained, or required to be paid by or imposed upon, any Purchaser Indemnified Party arising out of, resulting from or relating to: (i) the breach of or inaccuracy in any representation or warranty set forth in Article II; (ii) the breach of any covenant or agreement set forth in this Agreement in which the Sellers agree to cause the Company or any of the Company Subsidiaries to take or not take some action; (iii) the breach of any covenant or agreement set forth in this Agreement to be performed by the Company prior to the Closing; (iv) the breach of any covenant or agreement set forth in this Agreement or any other Transaction Document to be performed by Seller Representative in its capacity as hereinafter definedsuch; (v) resolved any Indemnified Taxes, (vi) any Closing Date Indebtedness that is not repaid in full at the Closing or accounted for in the determination of the Final Closing Statement pursuant to Section 2.31.7, (vii) any Seller Transaction Expenses that are outstanding after the Closing and not accounted for in the determination of the Final Closing Statement pursuant to Section 1.7 or (viii) the Special Indemnified Matter. Notwithstanding the foregoing, pursuant and for the avoidance of doubt, no Seller Indemnified Party will be a Purchaser Indemnified Party by reason of such Seller Indemnified Party’s position with the Target Companies or otherwise. (c) Subject to Section 12.6 the other provisions of this Article VII, from and after the Closing, each Seller shall indemnify, defend and hold harmless each of the Asset Purchase AgreementPurchaser Indemnified Parties, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) pay on behalf of and 12.2(a)(vii) reimburse each of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for Purchaser Indemnified Parties in respect of, any amount determined and all Losses incurred, suffered, sustained, or required to be owing to Parent paid by or Buyer under such indemnity obligations (“Damages”) and, without duplicationimposed upon, any award Purchaser Indemnified Party arising out of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iiiresulting from: (i) the breach of or inaccuracy in any representation or warranty of such Seller set forth in Article III; or (ii) the breach of any covenant or agreement of such Seller set forth in this Agreement (a “Prevailing Party Award”other than those referred to in Section 7.2(b)(ii)) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party AwardSeller Document. (bd) Notwithstanding any provision Subject to the other provisions of this Agreement to Article VII, from and after the contraryClosing, the Subject Earnout Shares Purchaser shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) indemnify defend and hold harmless each of the Asset Purchase Agreement as a result Seller Indemnified Parties, and pay on behalf of Seller’s failure and reimburse each of the Seller Indemnified Parties in respect of, any and all Losses incurred, suffered, sustained, or required to pay be paid by, or imposed upon, any required state sales Taxes Seller Indemnified Party arising out of or resulting from: (i) the breach of or inaccuracy in any applicable jurisdiction. To representation or warranty of the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as Purchaser set forth in Section 12.6 Article IV; or (ii) the breach of any covenant or agreement of the Asset Purchase AgreementPurchaser set forth in this Agreement or any Purchaser Document. Without limiting the generality of the foregoing, the Purchaser shall indemnify each of the Seller Indemnified Parties for any increase in Tax liability resulting from any breach of Section 5.9(i).

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, The indemnification obligations under this Agreement shall be subject to the terms and provisions following provisions: (1) The party seeking indemnification (“Indemnitee”) shall notify the other party (“Indemnitor”) of this Agreement, serve as a source, but not the sole source, of payment for the indemnity obligations under Article 12 of the Asset Purchase Agreement, including any Claim against Indemnitee within forty‑five (as hereinafter defined45) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 days after it has notice of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment but failure to notify Indemnitor shall in no case prejudice the rights of Indemnitee under this Agreement unless Indemnitor shall be paid first from prejudiced by such failure and then only to the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion extent of such funds prejudice. Should Indemnitor fail to discharge or undertake to defend Indemnitee against such liability (with counsel reasonably satisfactory to Indemnitee), within thirty (30) days after Indemnitee gives Indemnitor written notice of the same, then Indemnitee may defend and settle such Claim, and Indemnitor’s liability to Indemnitee shall Subject Purchase Shares or Escrow Cash be available for conclusively established by such indemnity; providedsettlement, howeverthe amount of such liability to include both the settlement consideration and the reasonable costs and expenses, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not metincluding attorneys’ fees, Parent and Buyer incurred by Indemnitee in effecting such settlement. Indemnitee shall have the right to obtain employ its own counsel in any such case, but the Escrow Adjustment(sfees and expenses of such counsel shall be at the expense of Indemnitee unless: (a) contemplated the employment of such counsel shall have been authorized in writing by Indemnitor in connection with the defense of such action, (b) Indemnitor shall not have employed counsel to direct the defense of such action or any such counsel employed by Indemnitor shall have failed to commence or pursue such defense, or (c) Indemnitee shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Indemnitor (in which case Indemnitor shall not have the right to direct the defense of such action or of Indemnitee), in any of which events such fees and expenses shall be borne by Indemnitor. (2) The indemnification obligations under this paragraph from Agreement shall cover the Subject Purchase Shares costs and Escrow Cash expenses of Indemnitee, including reasonable attorneys’ fees, related to any actions, suits or against the Seller or the Covenantors directly as set forth in Section 12.6 judgments incident to any of the Asset Purchase Agreementmatters covered by such indemnities. (3) The indemnification obligations of Indemnitor under this Agreement shall also benefit any present or future advisor, trustee, director, officer, partner, member, manager, employee, beneficiary, shareholder, participant and agent of or in Indemnitee or any entity now or hereafter having a direct or indirect ownership interest in Indemnitee. 2890904.5 38

Indemnification Obligations. (a) Subject to, and except as otherwise provided in this Article VII, from and after the Closing, Seller acknowledges shall indemnify and agrees hold harmless Buyer and each of its Affiliates and their respective Representatives (collectively, the “Buyer Indemnified Parties”) from and against all BRI-M▇▇▇▇ PSA Losses that the Subject Funds may, subject Buyer Indemnified Parties incur arising from or out of or related to: (i) any inaccuracy or breach of any representation or warranty of Seller in this Agreement or in any certificate delivered pursuant to the terms and provisions of this Agreement, serve as a source, but not the sole source, ; or (ii) any breach of payment for the indemnity obligations under Article 12 any covenant or agreement of the Asset Purchase Seller contained in this Agreement, including any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding Subject to, and except as otherwise provided in this Article VII, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its Affiliates and their respective Representatives (collectively, the “Seller Indemnified Parties”) from and against all BRI-M▇▇▇▇ PSA Losses that the Seller Indemnified Parties incur arising from or out of or related to: (i) the Real Property relating to periods after the Closing Date to the extent such BRI-M▇▇▇▇ PSA Losses are not subject to the provisions of Section 7.2(a) hereto; (ii) any provision inaccuracy or breach of any representation or warranty of Buyer in this Agreement or in any certificate delivered pursuant to this Agreement; or (iii) any breach of any covenant or agreement of Buyer contained in this Agreement. (c) For the contrarypurposes of calculating the amount of any BRI-M▇▇▇▇ PSA Loss for which a Buyer Indemnified Party or Seller Indemnified Party, as applicable, claims indemnification under this Agreement, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) amount of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there each BRI-M▇▇▇▇ PSA Loss shall be deemed to be an Escrow Adjustment amount (1) net of any insurance proceeds and any indemnity, contribution or other similar payment received from any insurer or other third party with respect thereto, and (2) net of any available Tax Benefits actually realized by the Indemnified Party with respect to such BRI-M▇▇▇▇ PSA Loss. Buyer and/or Seller, as applicable, shall use their respective commercially reasonable efforts to collect indemnity, contribution or other payments from any such Claimof their respective insurers or other third party (including, such Escrow Adjustment shall be paid first with respect to Buyer, using its commercially reasonable efforts to collect insurance proceeds from the Subject Earnout Shares (valued at Title Company under the closing price of Parent common stock on the day Title Policies prior to releasepursuing any claim against Seller in respect of any breach of Section 3.5). The costs and expenses (including reasonable fees and disbursements of counsel) reasonably incurred by the Indemnified Parties in pursuing any insurance proceeds or indemnity, contribution or other similar payment from any insurer or other third party shall constitute additional BRI-M▇▇▇▇ PSA Losses with respect to the matter for which indemnification may be sought hereunder, except to the extent such costs and only upon exhaustion of expenses are paid or reimbursed by such funds shall insurer or other third party. (d) Subject Purchase Shares or Escrow Cash be available for such indemnity; providedto clause (c) above, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer Parties shall have the right a duty to obtain the Escrow Adjustment(s) contemplated by use commercially reasonable efforts to mitigate any BRI-M▇▇▇▇ PSA Loss arising out of or relating to this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller Agreement or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase Agreementtransactions contemplated hereby.

Indemnification Obligations. (a) Seller acknowledges hereby agrees to indemnify and agrees hold harmless Buyer and Parent, and Buyer's and Parent's respective directors, officers, employees and Affiliates (each, a "Buyer Indemnified Party"), on an after-tax basis, against and in respect of any and all losses, damages, liabilities, claims, costs and expenses (including, without limitation, Legal Expenses) (collectively, "Losses") arising out of, based upon or resulting from (i) the breach of any representation or warranty of Seller contained in this Agreement or in any statement or certification of Seller furnished pursuant hereto, (ii) the breach by Seller of or failure of Seller to observe any of its covenants or agreements contained in this Agreement, (iii) any liability or obligation of or attributable to Seller or any of its Affiliates not expressly assumed by Buyer pursuant to Sections 2.3 or 2.4, (iv) any Contract Default, (v) any Product Liability Claim, (vi) any Employee Claim, and (vii) any Environmental Condition (regardless of whether, in the case of Third Party Actions, suits or proceedings, Seller may have a meritorious defense). Notwithstanding any other provision herein to the contrary, (x) Seller shall not be required, pursuant to this Section 11.1(a), to indemnify and hold harmless any Buyer Indemnified Party until the aggregate amount of (A) the Buyer Indemnified Parties' Losses under this Section 11.1(a) and (B) the Customer Refunds exceeds the Basket Amount, after which Seller shall be obligated for any and all Losses of the Buyer Indemnified Parties and Customer Refunds in excess of the Basket Amount (provided that the Subject Funds may, Seller's indemnity obligation under Section 11.1(a)(ii) shall not be subject to the terms and provisions of limitations in this Agreement, serve as a source, but not the sole source, of payment for the indemnity obligations under Article 12 of the Asset Purchase Agreement, including any Claim clause (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(ix)) and 12.2(a)(vii(y) the cumulative indemnification obligation of the Asset Purchase Seller under this Agreement shall be satisfied solely by in no event exceed the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party AwardCap. (b) Buyer and Parent hereby jointly and severally agree to indemnify and hold harmless Seller, on an after-tax basis, against and in respect of any and all Losses arising out of, based upon or resulting from (i) the breach of any representation or warranty of Buyer or Parent contained in this Agreement or in any statement or certification of Buyer or Parent furnished pursuant hereto, (ii) the breach by Buyer or Parent of or failure of Buyer or Parent to observe any of its covenants or agreements contained in this Agreement, (iii) any claim asserted against Seller in the complaint, as amended, filed in, or as a result of, the Assumed Litigation and (iv) the Rule 144A Offering, except in the case of this clause (iv) to the extent attributable to (x) any misstatement or omission in information relating to the Business, the Acquired Assets or Seller furnished to Buyer by or on behalf of Seller, (y) the negligence or willful misconduct of Seller or (z) the breach by Seller of any of its covenants or agreements contained in this Agreement (regardless of whether, in the case of Third Party Actions, suits or proceedings, Buyer or Parent may have a meritorious defense). Notwithstanding any other provision of this Agreement herein to the contrary, the Subject Earnout Shares (x) Buyer shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer not be required, pursuant to this Section 12.2(a)(iii) 11.1(b), to indemnify and hold harmless Seller until the aggregate amount of the Asset Purchase Losses of Seller under this Section 11.1(b) exceeds the Basket Amount, after which Buyer shall be obligated for any and all Losses of Seller in excess of the Basket Amount (provided that Buyer's indemnity obligation under Sections 11.1(b)(ii), (iii) and (iv) shall not be subject to the limitations of this clause (x)) and (y) the cumulative indemnification obligation of Buyer under this Agreement shall in no event exceed the Cap (excluding from such Cap the aggregate Losses under Section 11.1(b)(iii)). (c) For purposes of this Section 11.1, a party shall not be deemed to have made a representation or warranty as a result of Seller’s failure the Closing to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect that such party expressly disclaims such representation or warranty in the certificate delivered by such party to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at other parties pursuant to the closing price last sentence of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares Section 8.1 or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase Agreement.9.1. 11.2

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, subject to the terms and provisions Notwithstanding any other provision of this Agreement, serve as a sourceeach party (an "Indemnifying Party") shall defend, but not indemnify, save and keep harmless the sole sourceother Partners, the Partnership and their respective successors and permitted assigns (collectively, the "Indemnified Parties") against and from any and all Damages sustained or incurred by any of payment for the indemnity obligations under Article 12 them resulting from or arising out of the Asset Purchase Agreement, including or by virtue of: (a) any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 breach of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent representation or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be warranty made by the release from escrow and delivery to Parent Indemnifying Party in this Agreement or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal in any closing document delivered to the sum of Damages plus any Prevailing Party Award.Indemnified Parties in connection with this Agreement; (b) Notwithstanding any provision breach by the Indemnifying Party of, or failure by the Indemnifying Party to comply with, any of its covenants or obligations under this Agreement to (including, without limitation, their obligations under this Article XII); or, (c) any indemnification obligation of such party or any affiliate thereof arising under the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) provisions of Article XI of the Asset Purchase Agreement as a result of Seller’s failure Contribution Agreement. In no event, however, shall any party be liable to pay any required state sales Taxes in any applicable jurisdiction. To indemnify the extent there shall be an Escrow Adjustment other parties with respect to any breach of which such Claim, such Escrow Adjustment other Partner(s) had actual knowledge prior to the Closing. Any indemnification obligation arising under this Article XII and/or Article X of the Contribution Agreement shall be paid first from discharged by a capital contribution by the Subject Earnout Shares Partner owing such obligation to the Partnership in the amount of the Damages relating thereto. Any payment by the Partnership of Damages to which an indemnification obligation relates shall be charged as a distribution to the Indemnifying Partner and taken into account for purposes of current and future distributions made by the Partnership pursuant to Section 5.1. In addition, no item of Partnership property shall be revalued to reflect such indemnification payment. From the date of determination of such obligation (valued at which shall be the closing price date agreed by the parties or the date of Parent common stock on a final binding determination by a mediator or the day prior to releasedate of a final, non-appealable determination by a court of competent jurisdiction, as applicable) and only upon exhaustion until such obligation (and all accrued interest, if any, with respect thereto) has been paid in full in cash or other immediately available funds, all cash distributions to which a Partner shall otherwise be entitled to receive pursuant to Section 5.1(a) hereof, shall instead be retained by the Partnership and credited to the discharge of the obligation to make such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares capital contribution and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly pay accrued but unpaid interest as set forth provided in Section 12.6 of the Asset Purchase Agreement3.1(c) hereof.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, subject to the terms and provisions of this AgreementArticle IX, serve Seller shall indemnify and hold harmless the Buyer Indemnified Parties from and against all Losses that the Buyer Indemnified Parties have actually suffered or incurred directly as a source, but not result of: (i) the sole source, breach of payment any representation or warranty made by Seller contained in the Acquisition Documents (it being understood that such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to "materiality" (including the word "material" or "Material Adverse Effect") set forth therein except for the indemnity obligations under Article 12 use of any such terms in Section 4.6(a), 4.7(a), 4.8(a), 4.8(c), 4.10(a), 4.12(b)(i) and (ii), 4.15, 4.18(a) and 4.21(d)); (ii) the breach of any covenant or agreement by Seller contained in the Acquisition Documents; and (iii) any third party action, claim, suit or proceeding (including any inquiry or investigation by or before any Governmental Authority) to the extent arising out of or related to the ownership, operation or conduct of the Asset Purchase AgreementCapital Markets Business prior to the Closing. 57 To the extent that Seller's undertakings set forth in this Section 9.2(a) may be unenforceable, including any Claim (as hereinafter defined) resolved pursuant Seller shall contribute the maximum amount that it is permitted to Section 2.3. Notwithstanding contribute under applicable Law to the foregoing, pursuant to Section 12.6 payment and satisfaction of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely all Losses incurred by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party AwardIndemnified Parties. (b) Notwithstanding any provision of this Agreement anything to the contrary, the Subject Earnout Shares contrary contained in this Agreement: (i) Seller shall serve solely as a source not be liable for payment any claim for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii9.2(a)(i) or 9.2(a)(iii), unless and until the aggregate amount of all Losses of the Asset Buyer Indemnified Parties that are required to be indemnified by Seller pursuant to Sections 9.2(a)(i) and 9.2(a)(iii) exceed $10,000,000 (the "Deductible"), whereupon, Seller shall be liable only for the amount of such Losses in excess of the Deductible; (ii) no Losses may be claimed under Section 9.2(a)(i) or Section 9.2(a)(iii) by any Buyer Indemnified Party (and Seller shall not obligated to indemnify any Buyer Indemnified Party with respect to such Losses) or be included in calculating the aggregate Losses set forth in Section 9.2(b)(i), other than Losses in excess of $250,000 resulting from any single or aggregated claims arising out of the same facts, events or circumstances; and (iii) the maximum amount of the aggregate indemnifiable Losses that may be recovered from Seller by any and all Buyer Indemnified Parties arising out of or resulting from the causes set forth in Section 9.2(a)(i) shall be limited to $40,000,000, which indemnification shall be made as follows: (A) the first $25,000,000 of the aggregate indemnifiable Losses in excess of the Deductible shall be indemnified on a dollar-for-dollar basis; and (B) up to $30,000,000 of the aggregate indemnifiable Losses in excess of the amount set forth in the immediately preceding clause (A) shall be indemnified for 50% of every dollar of such indemnifiable Losses. (c) For the purpose of calculating the amount of any Loss for which a Buyer Indemnified Party is entitled to indemnification under this Agreement, the amount of each Loss shall be deemed to be an amount net of (i) any amounts previously paid by Seller pursuant to the adjustment to the Purchase Agreement Price under Section 2.4(d) to the extent such adjustment is in respect of such Loss, (ii) any insurance proceeds and any indemnity, contribution or other similar payment payable by any insurer or other third party with respect thereto and (iii) any Tax benefit available to the Buyer Indemnified Party or its Affiliates as a result of Seller’s failure the incurrence or payment of such Loss. Buyer shall use commercially reasonable efforts to pay commence legal or other proceedings to collect indemnity, contribution or other payments from any required state sales Taxes such insurer or other third party. The reasonable out-of-pocket costs and expenses (including reasonable fees and disbursements of counsel) actually incurred by the Buyer Indemnified Parties in pursuing any applicable jurisdiction. To insurance proceeds or indemnity, contribution or other similar payment from any insurer or other third party under Section 9.2(c)(i) shall constitute additional Losses with respect to the matter for which indemnification may be sought hereunder, except to the extent there such costs and expenses are paid or reimbursed by such insurer or other third party. (d) Subject to Section 9.2(c), the Buyer Indemnified Parties shall have a duty to use commercially reasonable efforts to mitigate any Loss for which Seller is obligated to indemnify the Buyer Indemnified Parties pursuant to this Article IX. (e) Seller shall be an Escrow Adjustment subrogated to any right of action (including any defense or claim) which any Buyer Indemnified Party may have against any other Person with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior matter giving rise to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available a claim for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase Agreementindemnification hereunder.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, subject to the terms and provisions of this Agreement, The Escrow Shares shall serve as a the first source, but not and the sole sourcesource until the Release Date (as defined in Section 3.1), of payment for the indemnity obligations of the Holder under Article 12 X of the Asset Purchase Merger Agreement; PROVIDED, HOWEVER, that each Holder shall further be severally liable for any breach by such Holder of such Holder's representation in any letter of transmittal. For the purposes of this Escrow Agreement, including any Claim (as hereinafter defined) resolved those obligations shall continue in accordance with Article X of the Merger Agreement, notwithstanding the merger of Merger Sub into HT pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Merger Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined as provided below to be owing to Parent or Buyer under such indemnity obligations under the Merger Agreement (“Damages”"DAMAGES") and, without duplication, and any award of attorneys’ ' fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii2.3(c)(iv) or 10.2 of this Agreement (a “Prevailing Party Award”"PREVAILING PARTY AWARD") may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, shall be made by the release from escrow and delivery of Escrow Shares to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”"ESCROW ADJUSTMENT"), subject to the limitations set forth in Section 10.4 of Subject Funds the Merger Agreement. The liability of any single Holder for indemnification obligations pursuant to Article X of the Merger Agreement shall be limited to such Holder's PRO RATA share of any indemnity obligations based on the number of Escrow Shares deposited in escrow on behalf of such Holder relative to the aggregate number of Escrow Shares; PROVIDED, HOWEVER, that there will be no limitation on the indemnification obligations of any person arising out of criminal activity or fraud by such person, including, without limitation, any actions in such person's capacity as an employee, officer or director in HT or its Subsidiaries, or for any Holder for breaches of any representation or warranty contained in the letter of transmittal delivered by such Holder. By the execution of this Escrow Agreement, each of the Holders agrees to be bound by the indemnification provisions set forth in Article X of the Merger Agreement and confirms that the issuance of the Escrow Percentage of the Parent Merger Shares pursuant to the Merger Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Parent shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Any Escrow Adjustments and corresponding release to Parent of Escrow Shares shall be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement. Each Escrow Adjustment to the Escrow Shares shall be made by the release to Parent of Escrow Shares having an aggregate value equal to the sum of Damages plus and any Prevailing Party Award. , with the per share value of such shares being based, for all purposes under this Escrow Agreement on the Parent Average Closing Price (badjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) Notwithstanding notwithstanding any provision changes in market value of this Agreement Parent Common Shares. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an nearest whole Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase AgreementShare.

Indemnification Obligations. (a) Seller acknowledges Sellers acknowledge and agrees that the Subject Funds mayagree that, subject to the terms and provisions of this Agreement, the Escrow Funds shall serve as a source, but not the sole source, source of payment for the any indemnity obligations arising under Article 12 Section 11.2(a) (other than subsection (ii) thereto) of the Asset Stock Purchase Agreement, including any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 the aggregate amount of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification indemnity obligations arising pursuant to Sections 12.2(a)(i11.2(a)(i), (ii), (iii), (iv), (v), (vi), (vii) and 12.2(a)(vii(viii) of the Asset Stock Purchase Agreement for which Escrow Funds shall serve as a source of payment shall not exceed $3,435,500. Escrow Funds in excess of such amount shall be satisfied used solely by to satisfy any indemnification obligations arising under Section 11.2(a)(v) of the Subject Funds. Stock Purchase Agreement. (b) Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b)2.1, 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Escrow Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision , which amount shall, in the case of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer obligations arising pursuant to Section 12.2(a)(iiiSections 11.2(a)(i), (ii), (iii), (iv), (vi), (vii) and (viii) of the Asset Stock Purchase Agreement as a result Agreement, be comprised of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an equal amounts of Escrow Adjustment with respect to any such Claim, such Cash and Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release), and in the case of obligations arising pursuant to Section 11.2(a)(v) and only upon exhaustion of such funds shall Subject the Stock Purchase Shares or Agreement, be comprised solely of Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and until all Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase Agreementis exhausted and then from Escrow Shares.

Indemnification Obligations. (a) Seller acknowledges The Company and agrees that Ernst shall jointly and severally indemnify Buyer and hold Buyer harmless from and against any and all Adverse Consequences arising out of or resulting from any misrepresentation or breach of any representation, warranty, covenant or agreement made by the Subject Funds mayCompany or Ernst in this Agreement or in any statement, subject certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by the terms and provisions of Company or Ernst to Buyer in connection with the transactions contemplated by this Agreement, serve as a source, but not the sole source, of payment for the indemnity obligations under Article 12 of the Asset Purchase Agreement, including any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing: (i) Buyer shall not be entitled to indemnification under this Section (other than with respect to a breach of any covenant or agreement contained herein) unless the aggregate monetary amount of all Adverse Consequences for which Buyer would, pursuant to Section 12.6 of in the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) absence of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3sentence, be made by entitled to receive indemnification under this Section exceeds an amount equal to $10,000 (the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow AdjustmentThreshold”), and then Buyer shall be entitled to indemnification for only such amounts that, in the aggregate, exceed the Threshold; and (ii) the aggregate indemnification obligations of Subject Funds equal the Company and Ernst collectively under this Article 7 (other than with respect to the sum a breach of Damages plus any Prevailing Party Awardcovenant or agreement contained herein) shall not exceed $1,000,000. (b) Notwithstanding Except as otherwise provided in Section 4.4, Buyer shall indemnify the Company and hold the Company harmless from and against any provision and all Adverse Consequences arising out of or resulting from any misrepresentation or breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by Buyer to the contrary, Company or Ernst in connection with the Subject Earnout Shares transactions contemplated by this Agreement. Notwithstanding the foregoing: (i) the Company shall serve solely as a source for payment for not be entitled to indemnification Claims made by Parent or Buyer pursuant to under this Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment (other than with respect to a breach of any such Claimcovenant or agreement contained herein) unless the aggregate monetary amount of all Adverse Consequences for which the Company would, such Escrow Adjustment in the absence of this sentence, be entitled to receive indemnification under this Section exceeds the Threshold, and then the Company shall be paid first from entitled to indemnification for only such amounts that, in the Subject Earnout Shares aggregate, exceed the Threshold; and (valued at ii) the closing price aggregate indemnification obligations of Parent common stock on the day prior Buyer under this Article 7 (other than with respect to releasea breach of any covenant or agreement contained herein) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase Agreementexceed $1,000,000.

Indemnification Obligations. (a) The Company and the Sellers shall jointly and severally indemnify Buyer and hold Buyer harmless from and against any and all Adverse Consequences arising out of or resulting from (A) any misrepresentation or breach of any representation, warranty, covenant or agreement made by the Company or any Sellers in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by the Company or any Seller acknowledges and agrees that to Buyer in connection with the Subject Funds may, subject to the terms and provisions of transactions contemplated by this Agreement, serve as and (B) any failure by the Company, any Subsidiary or PipeFire Management LLC to maintain workers compensation insurance in accordance with applicable law. Notwithstanding the foregoing: (i) Buyer shall not be entitled to indemnification under this Section (other than with respect to a sourcebreach of Section 4.4) unless the aggregate monetary amount of all Adverse Consequences for which Buyer would, but in the absence of this sentence, be entitled to receive indemnification under this Section exceeds an amount equal to $10,000 (the "Threshold"), and then Buyer shall be entitled to indemnification for only such amounts that, in the aggregate, exceed the Threshold; and (ii) the aggregate indemnification obligations of Sellers collectively under this Article 5 (other than with respect to a breach of Section 4.4) shall not the sole source, of payment for the indemnity obligations under Article 12 exceed one-hundred percent (100%) of the Asset Purchase Price. (b) Buyer shall indemnify the Company and each Seller and hold the Company and each Seller harmless from and against any and all Adverse Consequences arising out of or resulting from any misrepresentation or breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by Buyer to the Company or any Seller in connection with the EXECUTION COPY transactions contemplated by this Agreement, including any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant except with respect to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes Subsequent Payment Amount: (i) the Company and Sellers shall not be entitled to indemnification under this Section unless the aggregate monetary amount of all Adverse Consequences for which the Company and Sellers would, in any applicable jurisdiction. To the extent there absence of this sentence, be entitled to receive indemnification under this Section exceeds the Threshold, and then the Company and Sellers shall be an Escrow Adjustment with respect entitled to any indemnification for only such Claimamounts that, such Escrow Adjustment in the aggregate, exceed the Threshold; and (ii) the aggregate indemnification obligations of Buyer under this Article 5 shall be paid first from the Subject Earnout Shares not exceed one-hundred percent (valued at the closing price of Parent common stock on the day prior to release100%) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase AgreementPrice.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, The indemnification obligations under this Agreement shall be subject to the terms and provisions following provisions: (1) The party seeking indemnification (“Indemnitee”) shall notify the other party (“Indemnitor”) of this Agreement, serve as a source, but not the sole source, of payment for the indemnity obligations under Article 12 of the Asset Purchase Agreement, including any Claim against Indemnitee within forty five (as hereinafter defined45) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 days after it has notice of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment but failure to notify Indemnitor shall in no case prejudice the rights of Indemnitee under this Agreement unless Indemnitor shall be paid first from prejudiced by such failure and then only to the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion extent of such funds prejudice. Should Indemnitor fail to discharge or undertake to defend Indemnitee against such liability (with counsel approved by Indemnitee), within thirty (30) days after Indemnitee gives Indemnitor written notice of the same, then Indemnitee may defend and settle such Claim, and Indemnitor's liability to Indemnitee shall Subject Purchase Shares or Escrow Cash be available for conclusively established by such indemnity; providedsettlement, howeverthe amount of such liability to include both the settlement consideration and the reasonable costs and expenses, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not metincluding reasonable attorneys' fees, Parent and Buyer incurred by Indemnitee in effecting such settlement. Indemnitee shall have the right to obtain employ its own counsel in any such case, but the Escrow Adjustment(sfees and expenses of such counsel shall be at the expense of Indemnitee unless: (a) contemplated the employment of such counsel shall have been authorized in writing by Indemnitor in connection with the defense of such action, (b) Indemnitor shall not have employed counsel to direct the defense of such action or any such counsel employed by Indemnitor shall have failed to commence or pursue such defense, or (c) Indemnitee shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Indemnitor (in which case Indemnitor shall not have the right to direct the defense of such action or of Indemnitee), in any of which events such fees and expenses shall be borne by Indemnitor. (2) The indemnification obligations under this paragraph from Agreement shall cover the Subject Purchase Shares costs and Escrow Cash expenses of Indemnitee, including reasonable attorneys' fees, related to any actions, suits or against the Seller or the Covenantors directly as set forth in Section 12.6 judgments incident to any of the Asset Purchase Agreementmatters covered by such indemnities. (3) The indemnification obligations of Indemnitor under this Agreement shall also benefit any present or future advisor, trustee, director, officer, partner, member, manager, employee, beneficiary, shareholder, participant and agent of or in Indemnitee or any entity now or hereafter having a direct or indirect ownership interest in Indemnitee.

Indemnification Obligations. (a) Seller acknowledges From and agrees that after the Subject Funds may, Effective Time and subject to the terms and other provisions of this Agreement and the Merger Agreement, serve as a source, but not the sole source, of payment for the indemnity obligations under pursuant to and in accordance with Section 3.3 and Article 12 IX of the Asset Purchase AgreementMerger Agreement if Buyer becomes entitled upon the occurrence of certain adjustment events set forth in Section 3.3 that result in a value reduction to Buyer in accordance with Section 3.3 (the "Damages"), including any Claim (as hereinafter defined) resolved to an adjustment pursuant to Section 2.3. Notwithstanding the foregoing3.3, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement it shall be satisfied solely by the Subject Funds. Payment for any amount determined entitled to be owing to Parent or Buyer under receive Escrow Holdback Shares from each Original Holder based upon such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnityOriginal Holder's Pro Rata Portion; provided, however, that if one or more such return of the Escrow Adjustments are Holdback Shares shall be made against only to the Subject Earnout Shares extent provided in Section 3.3 of the Merger Agreement; and it is later determined provided, further, that the Earnout Milestones were foregoing deduction shall not metapply to Damages with respect to which Buyer failed to notify the Indemnification Representative within 120 days after the Closing Date (the "Cut-off Date"). (b) The obligations of the Original Holders under this Section 2.1 with respect to Damages under the Merger Agreement shall not continue beyond the Cut-off Date unless, Parent and prior to such date, Buyer shall have given to the right Indemnification Representative, with a copy to obtain the Escrow Adjustment(sHoldback Agent, a notice of its claim (a "Notice of Claim") contemplated by for indemnification hereunder, which Notice of Claim shall be in writing, shall specify in reasonable detail the basis for such claim, shall be based upon Buyer's good faith belief and shall specify the amount of Damages (the "Claimed Amount"). (c) Notwithstanding the foregoing, if the Closing occurs, Buyer's sole remedy with respect to any Damages shall be to make claims against the Escrow Holdback Shares under this paragraph Agreement, except that any failure of any Significant Stockholder to perform any covenant on or prior to the date hereof contained in Sections 6.16, 6.18 and 6.20 of the Merger Agreement shall entitle the party or parties to whom such covenant runs to seek damages from the Subject Purchase Shares breaching party thereto. (d) For all purposes of this Agreement, the deemed value per Escrow Holdback Share for purposes of determining the amount of any compensation payable hereunder shall be the Transaction Price. (e) The amount of any Damages incurred by Buyer shall be reduced by the net amount that Buyer, the Company or any of their affiliates actually recovers in respect of insurance recoveries and Escrow Cash insurance proceeds (exclusive of self insurance), and shall be adjusted to reflect the present economic value of any tax benefits recognized by Buyer, the Company or against the Seller or the Covenantors directly any of their controlled affiliates as set forth in Section 12.6 a result of the Asset Purchase Agreementsuch Damages.

Indemnification Obligations. (a) Cephalon and the Seller acknowledges (each, an "indemnifying party") shall jointly and agrees severally indemnify and hold harmless the Purchaser, and the Purchaser (another "indemnifying party") shall indemnify and hold harmless the Seller, from, against and in respect of any and all damages, losses, deficiencies, liabilities, costs and expenses (including attorneys' fees) resulting from, relating to or arising out of any (i) representation or warranty which was not true, complete and correct when made by or on behalf of the indemnifying party in this Agreement or in any certificate delivered by one party to the other pursuant hereto, or (ii) breach of any agreement or covenant on the part of such indemnifying party or parties hereunder. Claims relating to the representations contained in the first sentence of Section 3.1(m) shall be limited to latent defects or defects that are not reasonably detectable upon inspection. Cephalon and the Subject Funds maySeller shall not be liable under Section 7.1(a)(i) above for any misrepresentation or breach of warranty as to which the Puchaser had actual knowledge on the date such representation or warranty was made. For purposes of the foregoing sentence, "knowledge" of the Purchaser shall be deemed to mean the actual knowledge of the persons listed on Schedule 7.1(b) hereto. (b) An indemnified party shall make no claim against an indemnifying party for indemnification under SECTION 7.1(A) with respect to a misrepresentation or breach of warranty unless and until the aggregate amount of all such claims against an indemnifying party exceeds [*] [*] Confidential information has been omitted and filed separately with the Commission. (c) Cephalon and the Seller shall further indemnify and hold harmless the Purchaser from any and all damages, costs and expenses resulting from, relating to or arising out of liabilities of the Seller that are not Assumed Liabilities. Such indemnification under this clause (c) shall not be subject to the limits of clause (b) as to aggregate amount of claims or the time limitation for making such claims. (d) Each indemnifying party or parties hereto will indemnify and hold harmless the indemnified party or parties hereto from, against and in respect of any and all actions, suits, proceedings, demands, assessments, judgments, costs (including attorneys' fees) and legal and other expenses incident to the enforcement of this ARTICLE 7. (e) Other than the rights of the parties to obtain specific performance and injunctive relief relating to SECTIONS 1.3(E), 2.3, 2.4, 6.3 and 8.5 hereof, the remedy provided by this ARTICLE 7, subject to the terms and provisions of this Agreement, serve as a source, but not limitations set forth herein shall be the sole source, of payment parties' exclusive remedy for the indemnity obligations under Article 12 recovery of any damages, losses, deficiencies, liabilities, costs and expenses resulting from, relating to or arising out of any (i) misrepresentation or breach of warranty made by or on behalf of the Asset Purchase Agreementindemnifying party in this Agreement or in any certificate delivered by one party to the other pursuant hereto, including or (ii) breach of any Claim (as hereinafter defined) resolved pursuant to Section 2.3agreement or covenant on the part of such indemnifying party or parties hereunder. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase nothing in this Agreement shall be satisfied solely by restrict the Subject Funds. Payment Purchaser's rights or remedies for any amount determined to be owing to Parent fraud or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of intentional misrepresentation in this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer shall have the right to obtain the Escrow Adjustment(s) contemplated by this paragraph from the Subject Purchase Shares and Escrow Cash or against the Seller or the Covenantors directly as set forth in Section 12.6 of the Asset Purchase AgreementCephalon.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, The indemnification obligations under this Agreement shall be subject to the terms and provisions following provisions: (1) ______The party seeking indemnification ("Indemnitee") shall notify the other party ("Indemnitor") of this Agreement, serve as a source, but not the sole source, of payment for the indemnity obligations under Article 12 of the Asset Purchase Agreement, including any Claim against Indemnitee within forty-five (as hereinafter defined45) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 days after it has notice of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) may, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made by the release from escrow and delivery to Parent or Buyer, as the case may be (each such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdiction. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment but failure to notify Indemnitor shall in no case prejudice the rights of Indemnitee under this Agreement unless Indemnitor shall be paid first from prejudiced by such failure and then only to the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion extent of such funds prejudice. Should Indemnitor fail to discharge or undertake to defend Indemnitee against such liability (with counsel approved by Indemnitee), within thirty (30) days after Indemnitee gives Indemnitor written notice of the same, then Indemnitee may settle such Claim, and Indemnitor's liability to Indemnitee shall Subject Purchase Shares or Escrow Cash be available for conclusively established by such indemnity; providedsettlement, howeverthe amount of such liability to include both the settlement consideration and the reasonable costs and expenses, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not metincluding attorneys' fees, Parent and Buyer incurred by Indemnitee in effecting such settlement. Indemnitee shall have the right to obtain employ its own counsel in any such case, but the Escrow Adjustment(sfees and expenses of such counsel shall be at the expense of Indemnitee unless: (a) contemplated the employment of such counsel shall have been authorized in writing by Indemnitor in connection with the defense of such action, (b) Indemnitor shall not have employed counsel to direct the defense of such action, or (c) Indemnitee shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Indemnitor (in which case Indemnitor shall not have the right to direct the defense of such action or of Indemnitee), in any of which events such fees and expenses shall be borne by Indemnitor. (2) ______The indemnification obligations under this paragraph from Agreement shall cover the Subject Purchase Shares costs and Escrow Cash expenses of Indemnitee, including reasonable attorneys' fees, related to any actions, suits or against the Seller or the Covenantors directly as set forth in Section 12.6 judgments incident to any of the Asset Purchase Agreementmatters covered by such indemnities. (3) ______The indemnification obligations under this Agreement shall also extend to any present or future advisor, trustee, director, officer, partner, member, manager, employee, beneficiary, shareholder, participant or agent of or in Indemnitee or any entity now or hereafter having a direct or indirect ownership interest in Indemnitee.

Indemnification Obligations. (a) Seller acknowledges and agrees that the Subject Funds may, The indemnification obligations under this Agreement shall be subject to the terms and provisions following provisions: 13.12.1 The party seeking indemnification (“Indemnitee”) shall notify the other party (“Indemnitor”) of this Agreement, serve as a sourceany claim against Indemnitee within forty-five (45) days after it has notice of such claim, but not failure to notify Indemnitor shall in no case prejudice the sole sourcerights of Indemnitee under this Agreement unless Indemnitor shall be prejudiced by such failure and then only to the extent of such prejudice. Should Indemnitor fail to discharge or undertake to defend Indemnitee against such liability (with counsel reasonably approved by Indemnitee), of payment for the indemnity obligations under Article 12 within thirty (30) days after Indemnitee gives Indemnitor written notice of the Asset Purchase Agreementsame, then Indemnitee may settle such claim, and Indemnitor’s liability to Indemnitee shall be conclusively established by such settlement, the amount of such liability to include both the settlement consideration and the reasonable costs and expenses, including any Claim (as hereinafter defined) resolved pursuant to Section 2.3. Notwithstanding the foregoing, pursuant to Section 12.6 of the Asset Purchase Agreement, Parent’s and Buyer’s claims for indemnification pursuant to Sections 12.2(a)(i) and 12.2(a)(vii) of the Asset Purchase Agreement shall be satisfied solely by the Subject Funds. Payment for any amount determined to be owing to Parent or Buyer under such indemnity obligations (“Damages”) and, without duplication, any award of attorneys’ fees and charges owing to Parent or Buyer pursuant to Section 2.3(c)(iii) of this Agreement (a “Prevailing Party Award”) mayfees, subject to the terms and provisions of Sections 2.1(b), 2.2 and 2.3, be made incurred by the release from escrow and delivery to Parent or Buyer, as the case may be (each Indemnitee in effecting such payment, an “Escrow Adjustment”), of Subject Funds equal to the sum of Damages plus any Prevailing Party Award. (b) Notwithstanding any provision of this Agreement to the contrary, the Subject Earnout Shares shall serve solely as a source for payment for indemnification Claims made by Parent or Buyer pursuant to Section 12.2(a)(iii) of the Asset Purchase Agreement as a result of Seller’s failure to pay any required state sales Taxes in any applicable jurisdictionsettlement. To the extent there shall be an Escrow Adjustment with respect to any such Claim, such Escrow Adjustment shall be paid first from the Subject Earnout Shares (valued at the closing price of Parent common stock on the day prior to release) and only upon exhaustion of such funds shall Subject Purchase Shares or Escrow Cash be available for such indemnity; provided, however, that if one or more Escrow Adjustments are made against the Subject Earnout Shares and it is later determined that the Earnout Milestones were not met, Parent and Buyer Indemnitee shall have the right to obtain employ its own counsel in any such case, but the Escrow Adjustment(sfees and expenses of such counsel shall be at the expense of Indemnitee unless: (a) contemplated the employment of such counsel shall have been authorized in writing by Indemnitor in connection with the defense of such action, (b) Indemnitor shall not have employed counsel to direct the defense of such action, or (c) Indemnitee shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Indemnitor (in which case Indemnitor shall not have the right to direct the defense of such action or of Indemnitee), in any of which events such fees and expenses shall be borne by Indemnitor. 13.12.2 The indemnification obligations under this paragraph from Agreement shall cover the Subject Purchase Shares costs and Escrow Cash expenses of Indemnitee, including reasonable attorneys’ fees, related to any actions, suits or against the Seller or the Covenantors directly as set forth in Section 12.6 judgments incident to any of the Asset Purchase Agreementmatters covered by such indemnities. 13.12.3 The indemnification obligations under this Agreement shall also extend to cover any claim against any present or future advisor, trustee, director, officer, partner, member, manager, employee, beneficiary, shareholder, fiduciary, participant or agent of or in Indemnitee or any entity now or hereafter having a direct or indirect ownership interest in Indemnitee.