Common use of Notice of Indemnification Clause in Contracts

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VIIVIII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIVIII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII VIII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII VIII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VIIVIII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “"Indemnitee”") of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “"Indemnifying Party”") pursuant to this Article VIIVIII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIVIII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII VIII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s 's own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII VIII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s 's failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VIIVIII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee”"INDEMNITEE") of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”"INDEMNIFYING PARTY") pursuant to this Article VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s 's own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s 's failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the receipt by any indemnified party Party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party Party (the “Indemnifying Party”) pursuant to this Article VIIVI, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIVI, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII VI or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII VI to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VIIVI, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after In the receipt event any proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of which payment may be sought by the Parent or any indemnified party Parent Representative or by the Company or any Company Representative, against the other, as the case may be (the each an “Indemnitee”) ), under the provisions of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VIIVIII (an “Indemnity Claim”), give such Indemnifying Party the Indemnitee shall promptly cause written notice of the commencement assertion of any such action Claim of which it has knowledge which is covered by this indemnity to be forwarded to the Parent Representative, who shall be Xxxx Xxxxx, or proceeding and give such Indemnifying Party a copy the Company. Any notice of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party an Indemnity Claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the Claim, and solely the amount of the liability asserted against the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the receipt of such written notice, the Parent Representative or the Company, as the case may be, shall notify the Indemnitee in writing of its intent to contest the indemnification obligation (a “Contest”) or to accept liability hereunder. If the Parent Representative or the Company, as the case may be, does not respond within ten (10) days of the request of such written notice to such written notice, the Parent Representative or the Company, as the case may be, will be deemed to accept liability as it relates to the extent thatMerger Consideration. In such event, such failure actually the Indemnitee will deliver a Notice to the Parent that there is a determination of liability to this Section 8.03 and materially prejudices the rights Parent shall be instructed to adjust the Merger Consideration. In the event of such Indemnifying Partya Contest, within ten (10) days of the receipt of the written notice thereof, the parties will select arbitrators and submit the dispute to binding arbitration before the American Arbitration Association at a venue to be located in New York City. The arbitrators shall be selected by the mutual agreement of the parties. If the parties can not agree on the arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator can not be agreed upon, the American Arbitration Association in New York shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, matter is submitted to arbitration. If the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines arbitration is ruled favorably for Parent so that there is a reasonable probability that determination of a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyLoss, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as will deliver a Notice to the Parent that there is a determination of liability of such Indemnifying Party pursuant to this Section 8.03 and the IndemniteeParent shall adjust the Merger Consideration Deposit accordingly. In any event, the Indemnitee, such Indemnifying Party ARTICLE IX: Intentionally left blank and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemniteereserved.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VII7, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII7, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII 7 or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII 7 to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII7, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VIIV, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIV, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII V or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII V to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VIIV, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VII8, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII8, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII 8 or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII 8 to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII8, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after In the receipt event any legal proceeding (an ------------------------- "Indemnity Claim") shall be threatened or instituted or any claim or demand shall be asserted by any indemnified person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article X, the party seeking indemnification (the “"Indemnitee”") of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VII, give such Indemnifying Party shall promptly cause written notice of the commencement assertion of such action or proceeding and give such Indemnifying Party a copy of any such claim and/or process and all legal pleadings in connection therewithof which it has knowledge which is covered by this indemnity to be forwarded to the other party (the "Indemnitor"). The failure to give such Any notice shall not relieve any Indemnifying Party of a claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the claim, and solely to the extent that, such failure actually and materially prejudices amount of the rights liability asserted against the Indemnitor by reason of the Indemnity Claim. Within thirty (30) days of the receipt of such Indemnifying Partywritten notice, the Indemnitor shall notify the Indemnitee in writing of its intent to contest its obligation to indemnify or reimburse under this Agreement (a "Contest") or to accept liability hereunder. Such Indemnifying Party shall have, upon request If the Indemnitor does not respond within thirty (30) days after receipt of to such written notice, but not in any event after the settlement or compromise of such claim, the right Indemnitor will be deemed to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted accept liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume of a Contest, within ten (10) business days of the defense receipt of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemniteethe written notice thereof, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding parties will submit the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure dispute further to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeSection 11.5 herein.

Notice of Indemnification. Promptly after In the receipt by event any indemnified party (the “Indemnitee”) proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or which payment may be made sought by the Parent or any Parent Representative or by the LLC or any Company Representative, against any indemnifying party the other, as the case may be (each an "Indemnitee"), under the “Indemnifying Party”) pursuant to provisions of this Article VIIXI (an "Indemnity Claim"), give such Indemnifying Party the Indemnitee shall promptly cause written notice of the commencement assertion of any such action Claim of which it has knowledge which is covered by this indemnity to be forwarded to the Parent Representative, who shall be Xxxx XxXxxxxxx, or proceeding the LLC Representative, who shall be Xxxx Xxxxxx, as the case may be, and give such Indemnifying Party a copy the Escrow Agent. Any notice of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party an Indemnity Claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the Claim, and solely the amount of the liability asserted against the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the receipt of such written notice, the Parent Representative or the LLC, as the case may be, shall notify the Indemnitee in writing of its intent to contest the indemnification obligation (a "Contest") or to accept liability hereunder. If the Parent Representative or the LLC, as the case may be, accepts liability, the Parent Representative, or the LLC, as the case may be, will deliver a Notice to Escrow Agent that there is a determination of liability under Section 10.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the extent thatEscrow Agreement. If the Parent Representative or the LLC, such failure actually and materially prejudices as the rights case may be, does not respond within ten (10) days of the request of such Indemnifying Partywritten notice to such written notice, the Parent Representative or the LLC, as the case may be, will be deemed to accept liability as it relates to the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be. In such event, the Indemnitee will deliver a Notice to the Escrow Agent that there is a determination of liability to this Section 10.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the Escrow Agreement. In the event of a Contest, within ten (10) days of the receipt of the written notice thereof, the parties will select arbitrators and submit the dispute to binding arbitration in Nevada. The arbitrators shall be selected by the mutual agreement of the parties. If the parties cannot agree on the arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator cannot be agreed upon, the Federal District Court for Nevada shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, matter is submitted to arbitration. If the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines arbitration is ruled favorably for Parent so that there is a reasonable probability that determination of a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyLoss, the Indemnitee will deliver a Notice to Escrow Agent that there is a determination of liability pursuant to this Section 10.03 and the Escrow Agent shall have be instructed to adjust the right to defendParent Escrow Deposit or the Merger Consideration Escrow Deposit, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or case may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely further to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeEscrow Agreement.

Notice of Indemnification. Promptly after the receipt by Subject to Section 12.4, any party to be indemnified party (the an “IndemniteeIndemnified Party”) of shall give timely notice of (a “Claim Notice”) to the commencement of any action or proceeding against party from whom such Indemnitee, such Indemnitee shall, if a claim with respect thereto indemnification is or may be made against any indemnifying party sought (the an “Indemnifying Party”) pursuant after the Indemnified Party has Actual Knowledge of any claim as to this which indemnification may be sought for any Article VII12 Damages (a “Claim”) and the amount thereof, give if known, and supply any other information in the possession of the Indemnified Party regarding such Claim, and will permit the Indemnifying Party written notice (at its expense) to assume the defense of any third party Claim and any litigation resulting therefrom, provided that counsel for the commencement Indemnifying Party who shall conduct the defense of such action Claim or proceeding litigation shall be reasonably satisfactory to the Indemnified Party, and provided further that the failure by the Indemnified Party to give such notice as provided herein will not relieve the Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII, hereunder except where, and solely to the extent that, such failure actually and materially prejudices that the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely damaged as a result of money payments required the failure to be reimbursed in full by such give notice. The Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or may settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, any third party Claim or litigation only with the consent of the Indemnified Party which shall consent may not be unreasonably withheld, be conclusive as to delayed or conditioned. Notwithstanding the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where fact that the Indemnifying Party shall have has assumed the defensedefense of any third party Claim, the Indemnitee Indemnified Party shall have the right at all times to participate in the defense of defense, settlement, negotiation or litigation relating to such asserted liability Claim at the Indemnitee’s its own expense. In the event that such the Indemnifying Party shall decline to participate in or does not assume the defense of such actionany matter which is the proper subject of indemnification as above provided, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, then the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Indemnified Party shall have the right to defend any such third party Claim or demand, and will be entitled to settle any such Claim or demand in its discretion, all at the claim only with the consent expense of the IndemniteeIndemnifying Party. In any event, the Indemnified Party will cooperate in the defense of any such action at the expense of the Indemnifying Party and the records of each Party shall be available to the other with respect to such defense. If the Indemnifying Party fails to give a notice disputing the validity or amount of a Claim within twenty (20) business days following receipt of a Claim Notice, then the Claim shall be deemed to be accepted and the Indemnified Party may pursue whatever legal remedies may be available to recover the Article 12 Damages as to which the Indemnified Party is seeking indemnification.

Notice of Indemnification. Promptly after In the receipt by event any indemnified party (the “Indemnitee”) proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or which payment may be made sought by the Parent or any Parent Representative or by the Company or any Company Representative, against any indemnifying party the other, as the case may be (each an "Indemnitee"), under the “Indemnifying Party”) pursuant to provisions of this Article VIIVIII (an "Indemnity Claim"), give such Indemnifying Party the Indemnitee shall promptly cause written notice of the commencement assertion of any such action Claim of which it has knowledge which is covered by this indemnity to be forwarded to the Parent Representative, who shall be Xxxxxx Xxxxx, or proceeding the Company Representative, who shall be Xxxxx X. Xxxxxxxx, as the case may be, and give such Indemnifying Party a copy the Escrow Agent. Any notice of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party an Indemnity Claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the Claim, and solely the amount of the liability asserted against the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the receipt of such written notice, the Parent Representative or the Company, as the case may be, shall notify the Indemnitee in writing of its intent to contest the indemnification obligation (a "Contest") or to accept liability hereunder. If the Parent Representative or the Company, as the case may be, accepts liability, the Parent Representative, or the Company, as the case may be, will deliver a Notice to Escrow Agent that there is a determination of liability under Section 8.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the extent thatEscrow Agreement. If the Parent Representative or the Company, such failure actually and materially prejudices as the rights case may be, does not respond within ten (10) days of the request of such Indemnifying Partywritten notice to such written notice, the Parent Representative or the Company, as the case may be, will be deemed to accept liability as it relates to the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be. In such event, the Indemnitee will deliver a Notice to the Escrow Agent that there is a determination of liability to this Section 8.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the Escrow Agreement. In the event of a Contest, within ten (10) days of the receipt of the written notice thereof, the parties will select arbitrators and submit the dispute to binding arbitration in California. The arbitrators shall be selected by the mutual agreement of the parties. If the parties can not agree on the arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator can not be agreed upon, the Federal District Court for the Southern District of California shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, matter is submitted to arbitration. If the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines arbitration is ruled favorably for Parent so that there is a reasonable probability that determination of a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyLoss, the Indemnitee will deliver a Notice to Escrow Agent that there is a determination of liability pursuant to this Section 8.03 and the Escrow Agent shall have be instructed to adjust the right to defendParent Escrow Deposit or the Merger Consideration Escrow Deposit, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or case may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely further to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeEscrow Agreement.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “"Indemnitee”") of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “"Indemnifying Party”") pursuant to this Article VIIVI, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIVI, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII VI or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s 's own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII VI to indemnify an Indemnitee, the Indemnitee lndemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s 's failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VIIVI, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after In the receipt by event any indemnified party (the “Indemnitee”) proceeding shall be threatened ------------------------------ or instituted or any claim or demand shall be asserted in respect of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or which payment may be made sought by the Parent or any Parent Representative or by the Company or any Company Representative, against any indemnifying party the other, as the case may be (each an "Indemnitee"), under the “Indemnifying Party”) pursuant to provisions of this Article VIIVIII (an "Indemnity Claim"), give such Indemnifying Party the Indemnitee shall promptly cause written notice of the commencement assertion of any such action Claim of which it has knowledge which is covered by this indemnity to be forwarded to the Parent Representative, who shall be Xxxxx Xxxxxxxx, or proceeding and give such Indemnifying Party a copy the Company. Any notice of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party an Indemnity Claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the Claim, and solely the amount of the liability asserted against the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the receipt of such written notice, the Parent Representative or the Company, as the case may be, shall notify the Indemnitee in writing of its intent to contest the indemnification obligation (a "Contest") or to accept liability hereunder. If the Parent Representative or the Company, as the case may be, does not respond within ten (10) days of the request of such written notice to such written notice, the Parent Representative or the Company, as the case may be, will be deemed to accept liability as it relates to the extent thatMerger Consideration. In such event, such failure actually the Indemnitee will deliver a Notice to the Parent that there is a determination of liability to this Section 8.03 and materially prejudices the rights Parent shall be instructed to adjust the Merger Consideration. In the event of such Indemnifying Partya Contest, within ten (10) days of the receipt of the written notice thereof, the parties will select arbitrators and submit the dispute to binding arbitration before the American Arbitration Association at a venue to be located in New York City. The arbitrators shall be selected by the mutual agreement of the parties. If the parties can not agree on the arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator can not be agreed upon, the American Arbitration Association in New York shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, matter is submitted to arbitration. If the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines arbitration is ruled favorably for Parent so that there is a reasonable probability that determination of a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyLoss, the Indemnitee will deliver a Notice to Parent that there is a determination of liability pursuant to this Section 8.03 and the Parent shall have adjust the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeMerger Consideration Deposit accordingly.

Notice of Indemnification. Promptly after Any Person entitled to indemnification hereunder shall (a) give prompt written notice to the receipt by any indemnified indemnifying party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or to which it seeks indemnification and (b) unless in such indemnified party's reasonable judgment a conflict of interest may be made against any exist between such indemnified and indemnifying parties with respect to such claim, permit such indemnifying party (to assume the “Indemnifying Party”) pursuant to this Article VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy defense of such claim and/or process and all legal pleadings in connection therewithwith counsel reasonably satisfactory to the indemnified party. Whether or not such defense is assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). The failure of an indemnified party to give such notice pursuant to clause (a) above shall not relieve any Indemnifying Party of any indemnifying party of its indemnification obligations contained in this Article VII, hereunder except where, and solely to the extent thatsuch indemnifying party shall have been prejudiced thereby. An indemnifying party who does not assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim. Notwithstanding the foregoing, if in the reasonable judgment of any indemnified party, a conflict of interest may exist between such failure actually indemnified party and materially prejudices the rights any other of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of indemnified parties with respect to such claim, the right indemnifying party shall be obligated to defend, at its own expense pay the fees and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability expenses of such Indemnifying Party to the Indemniteeadditional counsel or counsels. In any event, the Indemnitee, such Indemnifying Party and its counsel The indemnified party shall cooperate in any defense assumed by the defense against, or compromise of, any such asserted liability, indemnifying party and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to may participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VIIIX, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIIX, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII IX or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII IX to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VIIIX, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee“ Indemnitee ”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the ““ Indemnifying PartyParty ”) pursuant to this Article VIIIX, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIIX, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII IX or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII IX to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VIIIX, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after In conjunction with Seller’s and Buyer’s respective indemnification obligations under this Agreement, if any claim is made, or suit is brought, against an indemnitee, the receipt by any indemnified party (indemnitee, within such period of time as shall not prejudice the “Indemnitee”) of notice ability of the commencement of any action indemnitor to defend such claim or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (suit shall notify in writing the “Indemnifying Party”) pursuant to this Article VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy indemnitor of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee suit and the Indemnifying Party, the Indemnitee indemnitor shall have the right option to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such actionsuit or claim at its sole expense with counsel reasonably satisfactory to indemnitee (such defense to be conducted, if the indemnitee so elects, in association with such other counsel as the indemnitee may select, the fees and expenses of such other counsel to be paid for by the indemnitee). The indemnitor shall have the obligation to conduct said defense diligently and shall provide the indemnitee with copies of all documents, correspondence, opinions and pleadings relating thereto. The indemnitee shall not make settlement or give any consent or waiver affecting the indemnitor without its prior written consent, unless the indemnitor theretofore failed to paying accept such defense within ten (10) days after being so notified of such claim or settling any claim against which suit or the indemnitor shall have theretofore failed to maintain such Indemnifying Party isdefense after such acceptance, or unless the matter in question shall have theretofore been finally determined adversely to the indemnitor, as the case may be, obligated under this Article VII to indemnify an Indemniteeby a court or governmental instrumentality having jurisdiction thereof, Seller and Buyer will cooperate in a reasonable manner with the Indemnitee shall first supply such Indemnifying other Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms in providing information and conditions of the settlement or compromise of making records available that may be needed in contesting any such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after Each party hereto agrees that, upon the service of a summons or other initial legal process upon it in any action or suit instituted against it, or upon receipt by any indemnified party (the “Indemnitee”) of notice written notification of the commencement of any action investigation or inquiry of, or proceeding against such Indemniteeagainst, such Indemnitee shall, if a claim with it in respect thereto is or of which indemnity may be made against any indemnifying party sought hereunder, it will promptly give written notice (the “Indemnifying Party”"Notice") pursuant of such service or notification to this Article VII, the party or parties from whom indemnification may be sought hereunder. No indemnification otherwise provided for hereunder shall be available to any party who shall fail so to give the Notice if the party to whom such Indemnifying Party written notice Notice was not given was unaware of the commencement of such action action, suit, investigation, inquiry or proceeding to which the Notice would have related and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The was prejudiced by the failure to give the Notice, but the omission so to notify such notice indemnifying party or parties of any such service or notification shall not relieve such indemnifying party or parties from any liability which it or they may have to the indemnified party for contribution or otherwise than on account of such indemnity agreement. Defense by Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party Any indemnifying party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, be entitled at its own expense and to participate in the defense of any action, suit or proceeding against, or investigation or inquiry of, an indemnified party. Any indemnifying party shall be entitled, if it so elects by its own counsel reasonably acceptable giving written notice (the "Notice of Defense") to the Indemnitee, any such matter involving the asserted liability indemnified party within a reasonable time after receipt of the IndemniteeNotice, to assume (alone or in conjunction with any other indemnifying party or parties) the entire defense of such action, suit, investigation, inquiry or proceeding, in which event such defense shall be conducted, at the expense of the indemnifying party or parties, by counsel chosen by such indemnifying party or parties and reasonably satisfactory to the indemnified party or parties; provided, however, that (i) if the Indemnitee determines indemnified party or parties reasonably determine that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict between the positions of interest exists between Indemnitee the indemnifying party or parties and of the Indemnifying Party, the Indemnitee shall have the right to defend, compromise indemnified party or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to parties in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume conducting the defense of such action, prior to paying suit, investigation, inquiry or settling any claim against which such Indemnifying Party is, proceeding or that there may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise be legal defenses available to such Indemnifying Party indemnified party or parties different from or in addition to those available to the indemnifying party or parties, then counsel for the indemnified party or parties shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely be entitled to conduct the defense to the extent thatreasonably determined by such counsel to be necessary to protect the interests of the indemnified party or parties, and (ii) in any event, the indemnified party or parties shall be entitled to have counsel chosen by such failure actually indemnified party or parties participate in, but not conduct, the defense. If, within a reasonable time after receipt of the Notice, an indemnifying party gives a Notice of Defense, and materially prejudices counsel chosen by the rights indemnifying party or parties is reasonably satisfactory to the indemnified party or parties, the indemnifying party or parties will not be liable for any legal or other expenses subsequently incurred by the indemnified party or parties in connection with the defense of the action, suit, investigation, inquiry or proceeding, except that (x) the indemnifying party or parties shall bear the legal and other expenses incurred in connection with the conduct of the defense as referred to in clause (i) of the proviso to the preceding paragraph, and (y) the indemnifying party or parties shall bear such other expenses as it or they have authorized to be incurred by the indemnified party or parties. If, within a reasonable time after the receipt of the Notice, no Notice of Defense has been given, the indemnifying party or parties shall be responsible for any legal or other expenses incurred by the indemnified party or parties in connection with the defense of the action, suit, investigation, inquiry or proceeding. The indemnifying party shall not be liable for settlement of any such action effected without its written consent, but if settled with its written consent, or if there be a final judgment for the plaintiff in any such action, the indemnifying party shall indemnify with respect to such settlement or judgment. Contribution if Indemnification Not Available If for any reason the foregoing indemnity is unavailable to the indemnified party or insufficient to hold the indemnified party harmless, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Indemnifying Partyclaims, liabilities, losses, damages or expenses, in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party, on the one hand, and the indemnified party, on the other hand, but also the relative fault of the indemnifying party and the indemnified party, as well as any relevant equitable considerations. If Notwithstanding any contrary provisions in this agreement, the Indemnifying Party aggregate contribution of Emerging to all claims, liabilities, losses, damages, and expenses shall not exceed the amount of fees actually received by Emerging pursuant to its engagement by the Company. It is defending hereby further agreed that the claim relative benefits to the Company, on the one hand, and Placement Agent, on the other hand, with respect to the transaction contemplated in the Agreement shall be deemed to be in the same proportion as (i) the net proceeds actually received by the Company resulting from the sale of the Securities bears to (ii) the fees paid to Placement Agent with respect to such sale. The indemnifying party agrees that its indemnification commitments herein set forth aboveshall apply whether or not the indemnified party is a formal party to any such actions or other proceedings, that such commitments shall be in addition to any liability that the Indemnifying Party indemnifying party may have to the indemnified party at common law or otherwise, and that such commitments shall have the right to settle the claim only with the consent survive any termination of the IndemniteeAgreement.

Notice of Indemnification. Promptly after In the receipt by event that any indemnified party Person entitled to indemnification (the an “Indemnitee”) of notice of the commencement of any action under Sections 14.2 or proceeding against 14.3 is seeking such Indemniteeindemnification, such Indemnitee shall, if a shall inform the indemnifying Party of the claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VII, give as soon as reasonably practicable after such Indemnifying Party written Indemnitee receives notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The claim; provided that failure to give such notice notification shall not relieve any Indemnifying Party of any of its affect the indemnification obligations contained in provided under this Article VIIAgreement, except where, and solely to the extent that, the indemnifying Party shall actually have been prejudiced by such failure actually and materially prejudices the rights of such Indemnifying Partyin a material manner. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyThereafter, the Indemnitee shall deliver to the indemnifying Party, promptly after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the claim. The indemnifying Party shall have the right to defend, compromise or assume the direction and control of the defense of the claim (including the sole right to settle such claim or suitit at the sole discretion of the indemnifying Party; and, provided, further, provided that such settlement does not impose any obligation on, or compromise otherwise adversely affect, the Indemnitee) and shall not, unless consented to cooperate as requested (at the expense of the indemnifying Party) in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability defense of such Indemnifying Party to the Indemniteeclaim. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in proceeding the defense against, or compromise of, any such asserted liability, and in cases where of which the Indemnifying indemnifying Party shall have assumed the defenseso assumed, the Indemnitee shall have the right to participate in therein and retain its own counsel (without otherwise affecting the defense rights of such asserted liability the Parties under this Section 14.6) at its own expense unless (i) the Indemnitee’s own expense. In Indemnitee and the event that such Indemnifying indemnifying Party shall decline to participate in or assume have mutually agreed on the defense retention of such actioncounsel, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, (ii) the Indemnitee shall first supply such Indemnifying have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying Party, or (iii) the named Parties (including the impleaded Parties) include both the indemnifying Party with a copy and the Indemnitee, and representation of a final court judgment or decree holding all Parties by the Indemnitee liable on such claim or, failing such judgment or decree, same counsel would be inappropriate in the terms and conditions opinion of the settlement indemnifying Party’s counsel due to actual or compromise potential differing interests between them; in any such case, one firm of such claim. An Indemniteeattorneys separate from the indemnifying Party’s failure counsel may be retained to supply such final court judgment or decree or represent Indemnitee at the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee’s expense.

Notice of Indemnification. Promptly after In the receipt by event any indemnified party (the “Indemnitee”) proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or which payment may be made sought by Xxxxx Xxxxxxx, Accend or any Accend Representative or by Cloud Star or any Cloud Star Representative, against any indemnifying party the other, as the case may be (each an "Indemnitee"), under the “Indemnifying Party”) pursuant to provisions of this Article VIIVIII (an "Indemnity Claim"), give such Indemnifying Party the Indemnitee shall promptly cause written notice of the commencement assertion of any such action Claim of which it has knowledge which is covered by this indemnity to be forwarded to the Accend Representative, who shall be Xxxxx Xxxxxxx, or proceeding the Cloud Star Representative, who shall be Xxxx Xxxxxxxxxx, as the case may be, and give such Indemnifying Party a copy the Escrow Agent. Any notice of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party an Indemnity Claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the Claim, and solely the amount of the liability asserted against the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the receipt of such written notice, Xxxxx Xxxxxxx, Accend Representative or Cloud Star, as the case may be, shall notify the Indemnitee in writing of its intent to contest the indemnification obligation (a "Contest") or to accept liability hereunder. If Xxxxx Xxxxxxx, the Accend Representative or Cloud Star, as the case may be, accepts liability, the Accend Representative, or Cloud Star, as the case may be, will deliver a Notice to Escrow Agent that there is a determination of liability under Section 8.03 and the Escrow Agent shall be instructed to adjust the Xxxxx Xxxxxxx Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the extent thatEscrow Agreement. If Xxxxx Xxxxxxx, such failure actually and materially prejudices the rights Accend Representative or Cloud Star, as the case may be, does not respond within ten (10) days of the request of such Indemnifying Partywritten notice to such written notice, Xxxxx Xxxxxxx, the Accend Representative or Cloud Star, as the case may be, will be deemed to accept liability as it relates to the Xxxxx Xxxxxxx’x Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be. In such event, the Indemnitee will deliver a Notice to the Escrow Agent that there is a determination of liability to this Section 8.03 and the Escrow Agent shall be instructed to adjust the Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the Escrow Agreement. In the event of a Contest, within ten (10) days of the receipt of the written notice thereof, the parties will select arbitrators and submit the dispute to binding arbitration in Nevada. The arbitrators shall be selected by the mutual agreement of the parties. If the parties cannot agree on the arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator cannot be agreed upon, the Federal District Court for the Southern District of Nevada shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, matter is submitted to arbitration. If the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines arbitration is ruled favorably for Xxxxx Xxxxxxx Escrow deposit so that there is a reasonable probability that determination of a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyLoss, the Indemnitee will deliver a Notice to Escrow Agent that there is a determination of liability pursuant to this Section 8.03 and the Escrow Agent shall have be instructed to adjust the right to defendXxxxx Xxxxxxx Escrow Deposit or the Merger Consideration Escrow Deposit, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or case may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely further to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeEscrow Agreement.

Notice of Indemnification. Promptly after In the receipt by event any indemnified party (the “Indemnitee”) proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or which payment may be made sought by the Parent or any Parent Representative or by the Company or any Company Representative, against any indemnifying party the other, as the case may be (each an "Indemnitee"), under the “Indemnifying Party”) pursuant to provisions of this Article VIIVIII (an "Indemnity Claim"), give such Indemnifying Party the Indemnitee shall promptly cause written notice of the commencement assertion of any such action Claim of which it has knowledge which is covered by this indemnity to be forwarded to the Parent Representative, who shall be Xxxx Xxxxxxxx, or proceeding the Company, as the case may be, and give such Indemnifying Party a copy the Escrow Agent. Any notice of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party an Indemnity Claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the Claim, and solely the amount of the liability asserted against the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the receipt of such written notice, the Parent Representative or the Company, as the case may be, shall notify the Indemnitee in writing of its intent to contest the indemnification obligation (a "Contest") or to accept liability hereunder. If the Parent Representative or the Company, as the case may be, accepts liability, the Parent Representative, or the Company, as the case may be, will deliver a Notice to Escrow Agent that there is a determination of liability under Section 8.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the extent thatEscrow Agreement. If the Parent Representative or the Company, such failure actually and materially prejudices as the rights case may be, does not respond within ten (10) days of the request of such Indemnifying Partywritten notice to such written notice, the Parent Representative or the Company, as the case may be, will be deemed to accept liability as it relates to the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be. In such event, the Indemnitee will deliver a Notice to the Escrow Agent that there is a determination of liability to this Section 8.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the Escrow Agreement. In the event of a Contest, within ten (10) days of the receipt of the written notice thereof, the parties will select arbitrators and submit the dispute to binding arbitration in California. The arbitrators shall be selected by the mutual agreement of the parties. If the parties can not agree on the arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator can not be agreed upon, the Federal District Court for the Southern District of California shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, matter is submitted to arbitration. If the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines arbitration is ruled favorably for Parent so that there is a reasonable probability that determination of a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyLoss, the Indemnitee will deliver a Notice to Escrow Agent that there is a determination of liability pursuant to this Section 8.03 and the Escrow Agent shall have be instructed to adjust the right to defendParent Escrow Deposit or the Merger Consideration Escrow Deposit, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or case may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely further to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeEscrow Agreement.

Notice of Indemnification. Promptly after In the receipt by event that any indemnified party Person entitled to indemnification (the “Indemnitee”) of notice of the commencement of any action under Sections 10.2 or proceeding against 10.3 is seeking such Indemniteeindemnification, such Indemnitee shall, if a claim with respect thereto is or may be made against any shall inform the indemnifying party (Party of the “Indemnifying Party”) pursuant to this Article VII, give Claim as soon as reasonably practicable after such Indemnifying Party written Indemnitee receives notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The Claim; provided that failure to give such notice notification shall not relieve any Indemnifying Party of any of its affect the indemnification obligations contained in provided under this Article VIIAgreement, except where, and solely to the extent that, the indemnifying Party shall actually have been prejudiced by such failure actually and materially prejudices the rights of such Indemnifying Partyin a material manner. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyThereafter, the Indemnitee shall deliver to the indemnifying Party, promptly after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Claim. The indemnifying Party shall have the right to defend, compromise or assume the direction and control of the defense of the Claim (including the sole right to settle such claim or suitit at the sole discretion of the indemnifying Party; and, provided, further, provided that such settlement does not impose any obligation on, or compromise otherwise adversely affect, the Indemnitee) and shall not, unless consented to cooperate as requested (at the expense of the indemnifying Party) in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability defense of such Indemnifying Party to the IndemniteeClaim. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in proceeding the defense againstof which the indemnifying Party [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, or compromise ofMARKED BY BRACKETS, any such asserted liability, and in cases where the Indemnifying Party HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM IF PUBLICLY DISCLOSED. Page 29 of 50 shall have assumed the defenseso assumed, the Indemnitee shall have the right to participate in therein and retain its own counsel (without otherwise affecting the defense rights of such asserted liability the Parties under this Section 10.6) at its own expense unless (i) the Indemnitee’s own expense. In Indemnitee and the event that such Indemnifying indemnifying Party shall decline to participate in or assume have mutually agreed on the defense retention of such actioncounsel, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, (ii) the Indemnitee shall first supply such Indemnifying have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying Party, or (iii) the named Parties (including the impleaded Parties) include both the indemnifying Party with a copy and the Indemnitee, and representation of a final court judgment or decree holding both Parties by the Indemnitee liable on such claim or, failing such judgment or decree, same counsel would be inappropriate in the terms and conditions opinion of the settlement indemnifying Party’s counsel due to actual or compromise potential differing interests between them; in any such case, one firm of such claim. An Indemniteeattorneys separate from the indemnifying Party’s failure counsel may be retained to supply such final court judgment or decree or represent Indemnitee at the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee’s expense.

Notice of Indemnification. Promptly after In the receipt by event that any indemnified party Person entitled to indemnification (the an “Indemnitee”) of notice of the commencement of any action under Sections 11.2 or proceeding against 11.3 is seeking such Indemniteeindemnification, such Indemnitee shall, if a claim with respect thereto is or may be made against any shall inform the indemnifying party Party (the “Indemnifying Party”) pursuant to this Article VII, give of the claim as soon as reasonably practicable after such Indemnifying Party written Indemnitee receives notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The claim; however, failure to give such notice notification shall not relieve any Indemnifying Party of any of its affect the indemnification obligations contained in provided under this Article VIIAgreement, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full actually have been prejudiced by such Indemnifying Party under this Article VII or if failure in a conflict of interest exists between Indemnitee and the Indemnifying Partymaterial manner. Thereafter, the Indemnitee shall deliver to the indemnifying Party, promptly after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the claim. The indemnifying Party shall have the right to defend, compromise or assume the direction and control of the defense of the claim (including the sole right to settle such claim or suit; andit at the sole discretion of the indemnifying Party, provided, furtherthat, that such settlement does not impose any obligation on, or compromise otherwise adversely affect, the Indemnitee) and shall not, unless consented to in writing by such cooperate as requested (at the expense of the Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to ) in the liability defense of such Indemnifying Party to the Indemniteeclaim. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in proceeding the defense against, or compromise of, any such asserted liability, and in cases where of which the Indemnifying Party shall have assumed the defenseso assumed, the Indemnitee shall have the right to participate in therein and retain its own counsel (without otherwise affecting the defense rights of such asserted liability the Parties under this Section 11.4) at its own expense unless (i) the Indemnitee’s own expense. In Indemnitee and the event that such Indemnifying indemnifying Party shall decline to participate in or assume have mutually agreed on the defense retention of such actioncounsel, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, (ii) the Indemnitee shall first supply such Indemnifying have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying Party, or (iii) the named Parties (including the impleaded Parties) include both the Certain information indicated with [***] in this document has been omitted from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential. indemnifying Party with a copy and the Indemnitee, and representation of a final court judgment or decree holding all Parties by the Indemnitee liable on such claim or, failing such judgment or decree, same counsel would be inappropriate in the terms and conditions opinion of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If ’s counsel due to actual or potential differing interests between them; in any such case, one firm of attorneys separate from the Indemnifying Party is defending the claim as set forth above, Party’s counsel may be retained to represent Indemnitee at the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeParty’s expense.

Notice of Indemnification. Promptly after In the receipt event any legal proceeding (an "INDEMNITY CLAIM") shall be threatened or instituted or any claim or demand shall be asserted by any indemnified person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Section 9, the party seeking indemnification (the “Indemnitee”"INDEMNITEE") of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VII, give such Indemnifying Party shall promptly cause written notice of the commencement assertion of such action or proceeding and give such Indemnifying Party a copy of any such claim and/or process and all legal pleadings in connection therewithof which it has knowledge which is covered by this indemnity to be forwarded to the other party (the "INDEMNITOR") on or prior to the fourth anniversary of the Closing. The failure to give such Any notice shall not relieve any Indemnifying Party of a claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the claim, and solely to the extent that, such failure actually and materially prejudices amount of the rights liability asserted against the Indemnitor by reason of the Indemnity Claim. Within fifteen (15) days of the receipt of such Indemnifying Partywritten notice, the Indemnitor shall notify the Indemnitee in writing of its intent to contest its obligation to indemnify or reimburse under this Agreement (a "CONTEST") or to accept liability hereunder. If the Indemnitor does not respond within fifteen (15) days to such written notice, the Indemnitor will be deemed to accept liability. In the event of a Contest, within ten (10) business days of the receipt of the written notice thereof, the parties will select an arbitrator and submit the dispute to binding arbitration in California. The arbitrator shall be selected by the mutual agreement of the parties. If the parties can not agree on an arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator can not be agreed upon, the Federal District Court for the Southern District of California shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right matter is submitted to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemniteearbitration.

Notice of Indemnification. Promptly after the receipt by any indemnified Each party entitled to indemnification under this Section 6 (the “Indemnitee”"Indemnified Party") of shall give notice of to the commencement party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or as to which indemnity may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII, except wheresought, and solely to shall permit the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such actionclaim or any litigation resulting therefrom, prior to paying or settling any claim against which such provided that counsel for the Indemnifying Party isParty, or may be, obligated under this Article VII to indemnify an Indemnitee, who shall conduct the Indemnitee shall first supply such Indemnifying Party with a copy defense of a final court judgment or decree holding the Indemnitee liable on such claim oror any litigation resulting therefrom, failing shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such judgment or decreedefense at such party's expense, and provided further that the terms and conditions failure of the settlement or compromise of such claim. An Indemnitee’s failure any Indemnified Party to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party give notice as provided herein shall not relieve such the Indemnifying Party of any of its indemnification obligations contained in under this Article VII, except where, and solely MOU to the extent that, such failure actually and materially prejudices the rights of such is not prejudicial. No Indemnifying Party. If , in the Indemnifying Party is defending the defense of any such claim as set forth aboveor litigation, the Indemnifying Party shall have the right to settle the claim only shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the Indemniteegiving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with defense of such claim and litigation resulting therefrom.

Notice of Indemnification. Promptly after In the receipt by event any indemnified party (the “Indemnitee”) proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or which payment may be made sought by the Parent or any Parent Representative or by the Company or any Company Representative, against any indemnifying party the other, as the case may be (each an "Indemnitee"), under the “Indemnifying Party”) pursuant to provisions of this Article VIIVIII (an "Indemnity Claim"), give such Indemnifying Party the Indemnitee shall promptly cause written notice of the commencement assertion of any such action Claim of which it has knowledge which is covered by this indemnity to be forwarded to the Parent Representative, who shall be Xxxxxx X. Xxxxxxxxx, III, or proceeding the Company Representative, who shall be Xxx Xxxxxx, as the case may be, and give such Indemnifying Party a copy the Escrow Agent. Any notice of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party an Indemnity Claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the Claim, and solely the amount of the liability asserted against the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the receipt of such written notice, the Parent Representative or the Company, as the case may be, shall notify the Indemnitee in writing of its intent to contest the indemnification obligation (a "Contest") or to accept liability hereunder. If the Parent Representative or the Company, as the case may be, accepts liability, the Parent Representative, or the Company, as the case may be, will deliver a Notice to Escrow Agent that there is a determination of liability under Section 8.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the extent thatEscrow Agreement. If the Parent Representative or the Company, such failure actually and materially prejudices as the rights case may be, does not respond within ten (10) days of the request of such Indemnifying Partywritten notice to such written notice, the Parent Representative or the Company, as the case may be, will be deemed to accept liability as it relates to the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be. In such event, the Indemnitee will deliver a Notice to the Escrow Agent that there is a determination of liability to this Section 8.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the Escrow Agreement. In the event of a Contest, within ten (10) days of the receipt of the written notice thereof, the parties will select arbitrators and submit the dispute to binding arbitration in Nevada. The arbitrators shall be selected by the mutual agreement of the parties. If the parties can not agree on the arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator can not be agreed upon, the Federal District Court for Nevada shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, matter is submitted to arbitration. If the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines arbitration is ruled favorably for Parent so that there is a reasonable probability that determination of a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyLoss, the Indemnitee will deliver a Notice to Escrow Agent that there is a determination of liability pursuant to this Section 8.03 and the Escrow Agent shall have be instructed to adjust the right to defendParent Escrow Deposit or the Merger Consideration Escrow Deposit, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or case may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely further to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeEscrow Agreement.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VIIVIII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIVIII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII VIII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII VIII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VIIVIII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.. GENERAL PROVISIONS

Notice of Indemnification. Promptly after In the receipt by event any indemnified party (the “Indemnitee”) proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or which payment may be made sought by the Parent or any Parent Representative or by the Company or any Company Representative, against any indemnifying party the other, as the case may be (each an "Indemnitee"), under the “Indemnifying Party”) pursuant to provisions of this Article VIIVIII (an "Indemnity Claim"), give such Indemnifying Party the Indemnitee shall promptly cause written notice of the commencement assertion of any such action Claim of which it has knowledge which is covered by this indemnity to be forwarded to the Parent Representative, who shall be Xxxxxx X. Xxxxxxxxx, or proceeding and give such Indemnifying Party a copy the Company. Any notice of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party an Indemnity Claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the Claim, and solely the amount of the liability asserted against the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the receipt of such written notice, the Parent Representative or the Company, as the case may be, shall notify the Indemnitee in writing of its intent to contest the indemnification obligation (a "Contest") or to accept liability hereunder. If the Parent Representative or the Company, as the case may be, does not respond within ten (10) days of the request of such written notice to such written notice, the Parent Representative or the Company, as the case may be, will be deemed to accept liability as it relates to the extent thatMerger Consideration. In such event, such failure actually the Indemnitee will deliver a Notice to the Parent that there is a determination of liability to this Section 8.03 and materially prejudices the rights Parent shall be instructed to adjust the Merger Consideration. In the event of such Indemnifying Partya Contest, within ten (10) days of the receipt of the written notice thereof, the parties will select arbitrators and submit the dispute to binding arbitration in California. The arbitrators shall be selected by the mutual agreement of the parties. If the parties can not agree on the arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator can not be agreed upon, the Federal District Court for the Southern District of California shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, matter is submitted to arbitration. If the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines arbitration is ruled favorably for Parent so that there is a reasonable probability that determination of a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyLoss, the Indemnitee will deliver a Notice to Parent that there is a determination of liability pursuant to this Section 8.03 and the Parent shall have adjust the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeMerger Consideration Deposit accordingly.

Notice of Indemnification. Promptly after the receipt by any an indemnified party (the “Indemnitee”) hereunder of notice of the commencement of any action or proceeding against such Indemniteeaction, such Indemnitee Indemnified Party shall, if a claim with in respect thereto thereof is or may to be made against any the indemnifying party (hereunder, notify the “Indemnifying Party”) pursuant indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any Indemnified Party other than under this Article VII, give Section 7. In case any such Indemnifying action shall be brought against any Indemnified Party written notice and it shall notify the indemnifying party of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings thereof, the indemnifying party shall be entitled to participate in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIand, except where, and solely to the extent thatit shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such failure actually Indemnified Party and, after notice from the indemnifying party to such Indemnified Party of its election so to assume and materially prejudices undertake the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claimdefense thereof, the right indemnifying party shall not be liable to defend, at its own expense such Indemnified Party under this Section 7 for any legal expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and by its own of liaison with counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemniteeso selected; provided, however, that that, (i) if the Indemnitee determines indemnifying party has failed to assume the defense and employ counsel or (ii) if the defendants in any such action include both the Indemnified Party and the indemnifying party and counsel to the Indemnified Party shall have concluded that there is a may be reasonable probability defenses available to the Indemnified Party that a claim may materially and adversely affect it, other than solely as a result of money payments required are different from or additional to be reimbursed in full by such Indemnifying Party under this Article VII those available to the indemnifying party or if a the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of interest exists between Indemnitee and the Indemnifying Partyindemnifying party, then the Indemnitee Indemnified Party shall have the right to defend, compromise or settle select a separate counsel and to assume such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party legal defense and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right otherwise to participate in the defense of such asserted liability at action, with the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense expenses and fees of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms separate counsel and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise other expenses related to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely participation to be reimbursed by the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim indemnifying party as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemniteeincurred.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “"Indemnitee”") of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “"Indemnifying Party”") pursuant to this Article VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII VII, or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s 's own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s 's failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the receipt by any indemnified party Party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party Party (the “Indemnifying Party”) pursuant to this Article VIIVI, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIVI, except where, and solely to the extent 25 of 34 that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII VI or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII VI to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VIIVI, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the Upon receipt by any indemnified party Person entitled to indemnification under Sections 10.1 or 10.2 (the an “IndemniteeIndemnified Party”) of notice of the commencement assertion by any third party of any action claim, demand, or proceeding against such Indemniteenotice (a “Third Party Claim”), such Indemnitee shallIndemnified Party, if a claim with respect thereto Third Party Claim is or may to be made by it against any indemnifying party Person from whom such indemnification could be sought (the “Indemnifying Party”) pursuant to under this Article VIISection 10, give such shall promptly notify in writing the Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Third Party a copy of such claim and/or process and all legal pleadings in connection therewithClaim. The failure to give provide such notice notice, however, shall not release the Indemnifying Party from any of its obligations under Section 10.1 or 10.2, as applicable, except to the extent that the Indemnifying Party is prejudiced by such failure and shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall from any other obligation or liability that it may have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent thatIndemnified Party or otherwise pursuant to Section 10.1 or 10.2, such failure actually and materially prejudices the rights of such Indemnifying Partyas applicable. If the Indemnifying Party acknowledges, in writing, its obligation to indemnify the Indemnified Party against any Section 10 Damages that may result from a Third Party Claim pursuant to the terms of this Agreement and the Third Party Claim together with any other Third Party Claims being defended by the Indemnifying Party is defending less than the claim as set forth aboveremaining amount of the Cap (defined in Section 10.4), the Indemnifying Party shall have the right, upon written notice (the “Defense Notice”) to the Indemnified Party within 30 days after receipt by the Indemnifying Parties of notice of the Third Party Claim (or sooner if such claim so requires) to participate in the defense and, to the extent that it may wish, jointly with any other Indemnifying Party similarly notified, assume the defense of the action, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that the Indemnifying Party shall jointly with the Indemnified Party conduct the defense in the event that the Third Party Claim requests equitable relief. The Defense Notice shall specify the counsel the Indemnifying Party shall appoint to defend such Third Party Claim (the “Defense Counsel”) and the Indemnified Party shall have the right to settle approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed. In the event the Indemnified Party and the Indemnifying Party cannot agree on such counsel within ten (10) days after the Defense Notice is Given, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party’s approval, which shall not be unreasonably withheld or delayed. Any indemnified Party shall have the right to employ separate counsel in any such Third Party Claim and/or to participate in the defense thereof, but the fees and expenses of such counsel shall not be included as part of any Section 10 Damages incurred by the Indemnified Party unless (i) the Indemnifying Party shall have failed to give the Defense Notice within the prescribed period, (ii) such Indemnified Party shall have received an opinion of counsel, reasonably acceptable to the Indemnifying Party, to the effect that the interest of the Indemnified Party and the Indemnifying Party with respect to the Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules, or (iii) the employment of such counsel at the expense of the Indemnifying Party has been specifically authorized by the Indemnifying Party. Any such Indemnifying Party shall not be liable to any such Indemnified Party on account of any settlement of any claim only with or action effected without the consent of such Indemnifying Party unless the Indemnitee.Indemnifying Party had determined not to assume the defense of the action. If the Indemnifying Party conducts the defense of a Third Party Claim, the Indemnifying Party shall keep the Indemnified Party apprised of all significant developments and shall not settle or compromise any claim or action without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) if such settlement or compromise (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder. 50

Notice of Indemnification. Promptly after In the receipt by event any indemnified party (the “Indemnitee”) proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or which payment may be made sought by the Parent or any Parent Representative or by the Company or any Company Representative, against any indemnifying party the other, as the case may be (each an "Indemnitee"), under the “Indemnifying Party”) pursuant to provisions of this Article VIIVIII (an "Indemnity Claim"), give such Indemnifying Party the Indemnitee shall promptly cause written notice of the commencement assertion of any such action Claim of which it has knowledge which is covered by this indemnity to be forwarded to the Parent Representative, who shall be Xxxxxxxxx Xxxxxxx Barrza, or proceeding the Company Representative, who shall be Xxxx Xxxxxxxxxx, as the case may be, and give such Indemnifying Party a copy the Escrow Agent. Any notice of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party an Indemnity Claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the Claim, and solely the amount of the liability asserted against the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the receipt of such written notice, the Parent Representative or the Company, as the case may be, shall notify the Indemnitee in writing of its intent to contest the indemnification obligation (a "Contest") or to accept liability hereunder. If the Parent Representative accepts liability, the Parent Representative will deliver a Notice to Escrow Agent that there is a determination of liability under Section 8.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit as provided in Section 8.04. If the Parent Representative does not respond to the Indemnity Claim within ten (10) days, the Parent Representative will be deemed to accept liability to the extent thatthe amount of the Indemnity Claim is covered by the Parent Escrow Deposit. In such event, such failure actually the Indemnitee will deliver a Notice to the Escrow Agent that there is a determination of liability under this Section 8.03 and materially prejudices the rights Escrow Agent shall be instructed to adjust the Parent Escrow Deposit as set forth in Section 8.04. In the event of such Indemnifying Partya Contest, or if the amount of the Company's Indemnity Claim exceeds the Parent Escrow Deposit, within ten (10) days of the receipt of the written notice thereof, the parties will select arbitrators and submit the dispute to binding arbitration in Florida. The arbitrators shall be selected by the mutual agreement of the parties. If the parties can not agree on the arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator can not be agreed upon, the Federal District Court for the Middle District of Florida shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, matter is submitted to arbitration. If the right to defend, at its own expense and by its own counsel reasonably acceptable to arbitration is ruled favorably for the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines Company so that there is a reasonable probability that determination of a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyLoss, the Indemnitee will deliver a Notice to Escrow Agent that there is a determination of liability pursuant to this Section 8.03 and the Escrow Agent shall have be instructed to adjust the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to Parent Escrow Deposit as provided in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeSection 8.04.

Notice of Indemnification. Promptly after In the receipt by event any indemnified party (the “Indemnitee”) proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or which payment may be made sought by the Parent or any Parent Representative or by the Company or any Company Representative, against any indemnifying party the other, as the case may be (each an "Indemnitee"), under the “Indemnifying Party”) pursuant to provisions of this Article VIIVIII (an "Indemnity Claim"), give such Indemnifying Party the Indemnitee shall promptly cause written notice of the commencement assertion of any such action Claim of which it has knowledge which is covered by this indemnity to be forwarded to the Parent Representative, who shall be Kxxxxx Xxxxx, or proceeding the Company Representative, who shall be Pxxxx X. Xxxxxxxx, as the case may be, and give such Indemnifying Party a copy the Escrow Agent. Any notice of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party an Indemnity Claim by reason of any of its indemnification obligations the representations, warranties or covenants contained in this Article VIIAgreement shall state specifically the representation, except wherewarranty or covenant with respect to which the Indemnity Claim is made, the facts giving rise to an alleged basis for the Claim, and solely the amount of the liability asserted against the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the receipt of such written notice, the Parent Representative or the Company, as the case may be, shall notify the Indemnitee in writing of its intent to contest the indemnification obligation (a "Contest") or to accept liability hereunder. If the Parent Representative or the Company, as the case may be, accepts liability, the Parent Representative, or the Company, as the case may be, will deliver a Notice to Escrow Agent that there is a determination of liability under Section 8.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the extent thatEscrow Agreement. If the Parent Representative or the Company, such failure actually and materially prejudices as the rights case may be, does not respond within ten (10) days of the request of such Indemnifying Partywritten notice to such written notice, the Parent Representative or the Company, as the case may be, will be deemed to accept liability as it relates to the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be. In such event, the Indemnitee will deliver a Notice to the Escrow Agent that there is a determination of liability to this Section 8.03 and the Escrow Agent shall be instructed to adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case may be, further to the Escrow Agreement. In the event of a Contest, within ten (10) days of the receipt of the written notice thereof, the parties will select arbitrators and submit the dispute to binding arbitration in California. The arbitrators shall be selected by the mutual agreement of the parties. If the parties can not agree on the arbitrator, each may select one arbitrator and the two designated arbitrators shall select the third arbitrator. If the third arbitrator can not be agreed upon, the Federal District Court for the Southern District of California shall select the third arbitrator. A decision by the individual arbitrator or a majority decision by the three arbitrators shall be final and binding upon the parties. Such Indemnifying Party arbitration shall have, upon request follow the rules of the American Arbitration Association and must be resolved by the arbitrators within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, matter is submitted to arbitration. If the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines arbitration is ruled favorably for Parent so that there is a reasonable probability that determination of a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyLoss, the Indemnitee will deliver a Notice to Escrow Agent that there is a determination of liability pursuant to this Section 8.03 and the Escrow Agent shall have be instructed to adjust the right to defendParent Escrow Deposit or the Merger Consideration Escrow Deposit, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or case may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely further to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the IndemniteeEscrow Agreement.

Notice of Indemnification. Promptly after In the receipt by event that any indemnified party Person entitled to indemnification (the “Indemnitee”) of notice of the commencement of any action under Sections 11.2 or proceeding against 11.3 is seeking such Indemniteeindemnification, such Indemnitee shall, if a claim with respect thereto is or may be made against any shall inform the indemnifying party (Party of the “Indemnifying Party”) pursuant to this Article VII, give Claim as soon as reasonably practicable after such Indemnifying Party written Indemnitee receives notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The Claim; provided that failure to give such notice notification shall not relieve any Indemnifying Party of any of its affect the indemnification obligations contained in provided under this Article VIIAgreement, except where, and solely to the extent that, the indemnifying Party shall actually have been prejudiced by such failure actually and materially prejudices the rights of such Indemnifying Partyin a material manner. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying PartyThereafter, the Indemnitee shall deliver to the indemnifying Party, promptly after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Claim. The indemnifying Party shall have the right to defend, compromise or assume the direction and control of the defense of the Claim (including the sole right to settle such claim or suitit at the sole discretion of the indemnifying Party; and, provided, further, provided that such settlement does not impose any obligation on, or compromise otherwise adversely affect, the Indemnitee) and the Indemnitee shall not, unless consented to cooperate as requested (at the expense of the indemnifying Party) in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability defense of such Indemnifying Party to the IndemniteeClaim. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in proceeding the defense against, or compromise of, any such asserted liability, and in cases where of which the Indemnifying indemnifying Party shall have assumed the defenseso assumed, the Indemnitee shall have the right to participate in therein and retain its own counsel (without otherwise affecting the defense rights of such asserted liability the Parties under this Section 11.6) at its own expense unless (i) the Indemnitee’s own expense. In Indemnitee and the event that such Indemnifying indemnifying Party shall decline to participate in or assume have mutually agreed on the defense retention of such actioncounsel, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, (ii) the Indemnitee shall first supply such Indemnifying have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying Party, or (iii) the named Parties (including the impleaded Parties) include both the indemnifying Party with a copy and the Indemnitee, and representation of a final court judgment or decree holding both Parties by the Indemnitee liable on such claim or, failing such judgment or decree, same counsel would be inappropriate in the terms and conditions opinion of the settlement indemnifying Party’s counsel due to actual or compromise potential differing interests between them; in any such case, one firm of such claimattorneys separate from the indemnifying Party’s counsel may be retained to represent Indemnitee at the indemnifying Party’s expense. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the The Indemnifying Party shall have the right no liability under this Section 11.6 with respect to settle the claim only with the consent of the Indemniteeclaims or suits settled or compromised without its prior consent.

Notice of Indemnification. Promptly after Any Person entitled to indemnification hereunder will (a) give prompt written notice to the receipt by any indemnified indemnifying party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or to which it seeks indemnification and (b) unless in such indemnified party's reasonable judgment a conflict of interest may be made against any exist between such indemnified and indemnifying parties with respect to such claim, permit such indemnifying party (to assume the “Indemnifying Party”) pursuant to this Article VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy defense of such claim and/or process and all legal pleadings in connection therewithwith counsel reasonably satisfactory to the indemnified party. Whether or not such defense is assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). The failure of an indemnified party to give such notice pursuant to clause (a) above shall not relieve any Indemnifying Party of any indemnifying party of its indemnification obligations contained in this Article VII, hereunder except where, and solely to the extent thatsuch indemnifying party shall have been prejudiced thereby. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of indemnifying party with respect to such claim, unless, in the right to defendreasonable judgment of any indemnified party, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists may exist between Indemnitee such indemnified party and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability any other of such Indemnifying Party indemnified parties with respect to such claim, in which event the Indemniteeindemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels. In any event, the Indemnitee, such Indemnifying Party and its counsel The indemnified party shall cooperate in any defense assumed by the defense against, or compromise of, any such asserted liability, indemnifying party and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to may participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after Each party hereto agrees that, upon the service of a summons or other initial legal process upon it in any action or suit instituted against it, or upon receipt by any indemnified party (the “Indemnitee”) of notice written notification of the commencement of any action investigation or inquiry of, or proceeding against such Indemniteeagainst, such Indemnitee shall, if a claim with it in respect thereto is or of which indemnity may be made against any indemnifying party sought hereunder, it will promptly give written notice (the “Indemnifying Party”"Notice") pursuant of such service or notification to this Article VII, the party or parties from whom indemnification may be sought hereunder. No indemnification otherwise provided for hereunder shall be available to any party who shall fail so to give the Notice if the party to whom such Indemnifying Party written notice Notice was not given was unaware of the commencement of such action action, suit, investigation, inquiry or proceeding to which the Notice would have related and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The was prejudiced by the failure to give the Notice, but the omission so to notify such notice indemnifying party or parties of any such service or notification shall not relieve such indemnifying party or parties from any liability which it or they may have to the indemnified party for contribution or otherwise than on account of such indemnity agreement. Defense by Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party Any indemnifying party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, be entitled at its own expense and to participate in the defense of any action, suit or proceeding against, or investigation or inquiry of, an indemnified party. Any indemnifying party shall be entitled, if it so elects by its own counsel reasonably acceptable giving written notice (the "Notice of Defense") to the Indemnitee, any such matter involving the asserted liability indemnified party within a reasonable time after receipt of the IndemniteeNotice, to assume (alone or in conjunction with any other indemnifying party or parties) the entire defense of such action, suit, investigation, inquiry or proceeding, in which event such defense shall be conducted, at the expense of the indemnifying party or parties, by counsel chosen by such indemnifying party or parties and reasonably satisfactory to the indemnified party or parties; provided, however, that (i) if the Indemnitee determines indemnified party or parties reasonably determine that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict between the positions of interest exists between Indemnitee the indemnifying party or parties and of the Indemnifying Party, the Indemnitee shall have the right to defend, compromise indemnified party or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to parties in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume conducting the defense of such action, prior to paying suit, investigation, inquiry or settling any claim against which such Indemnifying Party is, proceeding or that there may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise be legal defenses available to such Indemnifying Party indemnified party or parties different from or in addition to those available to the indemnifying party or parties, then counsel for the indemnified party or parties shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely be entitled to conduct the defense to the extent thatreasonably determined by such counsel to be necessary to protect the interests of the indemnified party or parties, and (ii) in any event, the indemnified party or parties shall be entitled to have counsel chosen by such failure actually indemnified party or parties participate in, but not conduct, the defense. If, within a reasonable time after receipt of the Notice, an indemnifying party gives a Notice of Defense, and materially prejudices counsel chosen by the rights indemnifying party or parties is reasonably satisfactory to the indemnified party or parties, the indemnifying party or parties will not be liable for any legal or other expenses subsequently incurred by the indemnified party or parties in connection with the defense of the action, suit, investigation, inquiry or proceeding, except that (x) the indemnifying party or parties shall bear the legal and other expenses incurred in connection with the conduct of the defense as referred to in clause (i) of the proviso to the preceding paragraph, and (y) the indemnifying party or parties shall bear such other expenses as it or they have authorized to be incurred by the indemnified party or parties. If, within a reasonable time after the receipt of the Notice, no Notice of Defense has been given, the indemnifying party or parties shall be responsible for any legal or other expenses incurred by the indemnified party or parties in connection with the defense of the action, suit, investigation, inquiry or proceeding. The indemnifying party shall not be liable for settlement of any such action effected without its written consent, but if settled with its written consent, or if there be a final judgment for the plaintiff in any such action, the indemnifying party shall indemnify with respect to such settlement or judgment. Contribution if Indemnification Not Available If for any reason the foregoing indemnity is unavailable to the indemnified party or insufficient to hold the indemnified party harmless, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Indemnifying Partyclaims, liabilities, losses, damages or expenses, in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party, on the one hand, and the indemnified party, on the other hand, but also the relative fault of the indemnifying party and the indemnified party, as well as any relevant equitable considerations. If Notwithstanding any contrary provisions in this agreement, the Indemnifying Party aggregate contribution of GCC Capital Group, LLC to all claims, liabilities, losses, damages, and expenses shall not exceed the amount of fees actually received by GCC Capital Group, LLC pursuant to its engagement by the Company. It is defending hereby further agreed that the claim relative benefits to the Company, on the one hand, and Placement Agent, on the other hand, with respect to the transaction contemplated in the Agreement shall be deemed to be in the same proportion as (i) the net proceeds actually received by the Company resulting from the sale of the Securities bears to (ii) the fees paid to Placement Agent with respect to such sale. The indemnifying party agrees that its indemnification commitments herein set forth aboveshall apply whether or not the indemnified party is a formal party to any such actions or other proceedings, that such commitments shall be in addition to any liability that the Indemnifying Party indemnifying party may have to the indemnified party at common law or otherwise, and that such commitments shall have the right to settle the claim only with the consent survive any termination of the IndemniteeAgreement.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee”) an Indemnitee of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim an Indemnity Claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) Party pursuant to this Article VIISection 7, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim Indemnity Claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIISection 7, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Within fifteen (15) Business Days after delivery of such notification, the Indemnifying Party (a) shall havenotify the Indemnitee as to whether it disputes the liability of the Indemnifying Party hereunder with respect to such Indemnity Claim or demand and (b) may, upon request within thirty (30) days after receipt written notice thereof to the Indemnitee, assume control of the defense of such noticeIndemnity Claim with counsel reasonably satisfactory to the Indemnitee so long as (i) the Indemnifying Party covenants to indemnify, but not defend and hold harmless the Indemnitee from and against the entirety of any and all Losses the Indemnitee may suffer resulting from, arising out of, relating to, in any event after the settlement nature of, or compromise of caused by such claimIndemnity Claim or demand, (ii) the right to defend, at its own expense and by its own counsel Indemnifying Party provides the Indemnitee with evidence reasonably acceptable to the IndemniteeIndemnitee that the Indemnifying Party will have adequate financial resources to defend against such Indemnity Claim or demand and fulfill its indemnification obligations hereunder, any (iii) such matter involving Indemnity Claim or demand does not relate to or otherwise arise in connection with criminal or regulatory enforcement Action, (iv) settlement of, an adverse judgment with respect to, or conduct of the asserted liability defense of such Indemnity Claim or demand by the Indemnifying Party is not, in the good faith judgment of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required likely to be reimbursed in full by such adverse to the Indemnitee’s reputation or continuing business interests (including its relationships with current or potential investors or other parties material to the conduct of its business); and (v) the Indemnifying Party under this Article VII conducts the defense of such Indemnity Claim or if a conflict of interest exists between Indemnitee demand actively and diligently. If the Indemnifying PartyParty does not so assume control of the defense of an Indemnity Claim or demand, the Indemnitee shall have the right to defend, compromise or settle will control such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemniteedefense. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that The party controlling any such Indemnifying Party shall decline Indemnity Claim or demand will not agree to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party issettlement of, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party entry of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent thatjudgment arising from, such failure actually and materially prejudices Indemnity Claim or demand without the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the prior written consent of the Indemniteeother party, which will not be unreasonably withheld, conditioned or delayed.

Notice of Indemnification. Promptly after the receipt by any indemnified party Party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party Party (the “Indemnifying Party”) pursuant to this Article VIIVI, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIVI, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII VI or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise compromise, or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party Party, and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII VI to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement settlement, or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VIIVI, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after In the receipt event any legal proceeding shall be instituted or any claim or demand shall be asserted by any indemnified party Buyer Indemnified Party entitled to indemnification or any Seller Indemnified Party entitled to indemnification in respect of which payment may be sought under the provisions of this Article IX or for breach of any of the representations and warranties set forth herein, Buyer Indemnified Party entitled to indemnification or any Seller Indemnified Party entitled to indemnification seeking indemnification (the “"Indemnitee”") of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VII, give such Indemnifying Party shall promptly cause written notice of the commencement assertion of such action or proceeding and give such Indemnifying Party a copy of any such claim and/or process and all legal pleadings in connection therewith. The of which it has knowledge which it reasonably believes to be covered by this indemnity to be forwarded to Seller or Buyer, as the case may be (the "Indemnitor"); provided, however, that the failure to give such notice shall not relieve any Indemnifying Party of any of its affect the indemnification obligations contained in this Article VII, provided hereunder except where, and solely to the extent that, such failure the Indemnitor has actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely been prejudiced as a result of money payments required such failure. Subject to be reimbursed the foregoing, any notice of a claim by reason of any of the covenants contained in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee Agreement shall state specifically the covenant with respect to which the claim is made, the facts giving rise to an alleged basis for the claim, and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to amount of the liability asserted against the Indemnitor by reason of such Indemnifying Party to the Indemniteeclaim. In any eventAny claim for indemnification by Seller against Buyer or Buyer against Seller, as the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or case may be, obligated shall be settled exclusively and finally by the Bankruptcy Court. For the avoidance of doubt, no party hereto may seek indemnification under the provisions of this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with IX unless a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party legal proceeding shall have the right to settle the been instituted or a claim only with the consent of the Indemniteeor demand shall have been asserted.

Notice of Indemnification. Promptly after the receipt by any indemnified A party seeking indemnification under this Article X (the “IndemniteeIndemnified Party”) of notice of shall promptly notify the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party to provide indemnification under this Article X (the “Indemnifying Party”) pursuant to this Article VIIin writing of any claim, give such Indemnifying Party written notice of the commencement of such demand, action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its for which indemnification obligations contained in this Article VIIwill be sought under Section 10.2, except whereand, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of if such claim, demand, action or proceeding is a third party claim, demand, action or proceeding, the Indemnifying Party will have the right to defend, at its own expense and by its own to assume the defense thereof using counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the IndemniteeIndemnified Party; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such an Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall not have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any third party claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy in respect of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claimtaxes. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying The Indemnified Party shall have the right to settle participate, at its own expense, with respect to any such third party claim, demand, action or proceeding. In connection with any such third party claim, demand, action or proceeding, the claim only parties shall cooperate with each other and provide each other with access to relevant books and records in their possession related to such claim. No such third party claim, demand, action or proceeding shall be settled without the prior written consent of the IndemniteeIndemnified Party, which consent shall not be unreasonably withheld. If a firm written offer is made to settle any such third party claim, demand, action or proceeding, which offer does not involve any injunctive or non-monetary relief against the Indemnified Party, and the Indemnifying Party proposes to accept such settlement and the Indemnified Party refuses to consent to such settlement, then: (i) the Indemnifying Party shall be excused from, and the Indemnified Party shall be solely responsible for, all further defense of such third party claim, demand, action or proceeding; and (ii) the maximum liability of the Indemnifying Party relating to such third party claim, demand, action or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the Indemnified Party on such third party claim, demand, action or proceeding is greater than the amount of the proposed settlement. In the event that any party shall fail to make such commercially reasonable efforts to mitigate or resolve any claim or liability, then notwithstanding anything else to the contrary herein, the other party shall not be required to indemnify any person for any Losses that could reasonably be expected to have been avoided if such efforts had been made.

Notice of Indemnification. Promptly after In the receipt event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any indemnified person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XII or for breach of any of the representations and warranties set forth herein, the party seeking indemnification (the “"Indemnitee”") of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VII, give such Indemnifying Party shall promptly cause written notice of the commencement assertion of such action or proceeding and give such Indemnifying Party a copy of any such claim and/or process and all legal pleadings in connection therewith. The failure of which it has knowledge which is covered by this indemnity to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely be forwarded to the extent thatother party (the "Indemnitor"), such failure actually and materially prejudices which notice must be received by the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within Indemnitor no later than thirty (30) days after the expiration of the one year period described above in Section 12.5 (except for indemnification pertaining to representations, covenants and agreements referred to in Section 12.5 hereof as to which such one year limitation is not applicable). Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall state specifically the representation, warranty or covenant with respect to which the claim is made, the facts giving rise to an alleged basis for the claim, and the amount of the liability asserted against the Indemnitor by reason of the claim. Notwithstanding the foregoing, the failure of either the Purchaser or the Seller to give notice of any claim for indemnification in accordance with the foregoing provision shall not adversely affect such party's right to indemnity hereunder except to the extent that such failure adversely affects the right of the Indemnitor to assert any reasonable defense to such claim. The Indemnitor shall have thirty (30) Business Days following its receipt of such notice, but not notice either (y) to acquiesce in any event after such claim by giving the settlement or compromise Indemnitee written notice of such claim, the right acquiescence or (z) to defend, at its own expense and by its own counsel reasonably acceptable object to the Indemnitee, any such matter involving the asserted liability claim by giving Indemnitee written notice of the Indemnitee; provided, however, that if objection. If the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by Indemnitor does not object within such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Partythirty (30) Business Days, the Indemnitee shall have the right be entitled to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to be indemnified for all Damages reasonably and proximately incurred by Indemnitee in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise respect of such claim. An Indemnitee’s failure to supply such final court judgment or decree or If the terms and conditions of a settlement or compromise Indemnitor objects to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained claim in this Article VII, except wherea timely manner, and solely the Indemnitee and the Indemnitor are unable to the extent thatresolve their dispute within ten (10) Business Days following such objection (or such additional period of time as may be mutually agreed to by such parties), such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right be submitted immediately to settle the claim only with the consent of the Indemniteearbitration pursuant to Section 12.8.

Notice of Indemnification. Promptly after the receipt by any an indemnified ------------------------- party (the “Indemnitee”) hereunder of notice of the commencement of any action or proceeding against such Indemniteeaction, such Indemnitee Indemnified Party shall, if a claim with in respect thereto thereof is or may to be made against any the indemnifying party (hereunder, notify the “Indemnifying Party”) pursuant indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any Indemnified Party other than under this Article VII, give Section 7. In case any such Indemnifying action shall be brought against any Indemnified Party written notice and it shall notify the indemnifying party of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings thereof, the indemnifying party shall be entitled to participate in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VIIand, except where, and solely to the extent thatit shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such failure actually Indemnified Party and, after notice from the indemnifying party to such Indemnified Party of its election so to assume and materially prejudices undertake the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claimdefense thereof, the right indemnifying party shall not be liable to defend, at its own expense such Indemnified Party under this Section 7 for any legal expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and by its own of liaison with counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemniteeso selected; provided, however, that that, (i) if the Indemnitee determines indemnifying party has failed to assume the defense and employ counsel or (ii) if the defendants in any such action include both the Indemnified Party and the indemnifying party and counsel to the Indemnified Party shall have concluded that there is a may be reasonable probability defenses available to the Indemnified Party that a claim may materially and adversely affect it, other than solely as a result of money payments required are different from or additional to be reimbursed in full by such Indemnifying Party under this Article VII those available to the indemnifying party or if a the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of interest exists between Indemnitee and the Indemnifying Partyindemnifying party, then the Indemnitee Indemnified Party shall have the right to defend, compromise or settle select a separate counsel and to assume such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party legal defense and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right otherwise to participate in the defense of such asserted liability at action, with the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense expenses and fees of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms separate counsel and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise other expenses related to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely participation to be reimbursed by the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim indemnifying party as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemniteeincurred.

Notice of Indemnification. Promptly after the receipt by any indemnified party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the “Indemnifying Party”) pursuant to this Article VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) 30 days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

Notice of Indemnification. Promptly after the receipt by any indemnified If a party hereto seeks indemnification under this Section 9, such party (the “Indemnitee”"Indemnified Party") of shall give written notice of to the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying other party (the “"Indemnifying Party”") of the facts and circumstances giving rise to the claim. In that regard, if any suit, action, claim, liability or obligations shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Article VIISection 9, give such the Indemnified Party shall promptly notify the Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy same in writing, specifying in reasonable detail the basis of such claim and/or process and all legal pleadings in connection therewiththe facts pertaining thereto. The failure to give such notice Indemnifying Party, if it so elects, shall not relieve any Indemnifying assume and control the defense thereof (and shall consult with the Indemnified Party with respect thereto), including the employment of any of its indemnification obligations contained in this Article VII, except where, and solely counsel reasonably satisfactory to the extent Indemnified Party and the payment of all necessary expenses; provided that, such failure actually and materially prejudices as a condition precedent to the rights Indemnifying Party's right to assume control of such Indemnifying Party. Such defense, it must first: (i) admit in writing its obligation to provide indemnification in respect of such matter and (ii) demonstrate that it will bear the greatest portion of the Loss if the claim is successful in light of the Threshold and the Cap; and provided further that the Indemnifying Party shall have, upon request within thirty (30) days after receipt not have the right to assume control of such notice, but not in any defense if the claim which the Indemnifying Party seeks to assume control (1) seeks non-monetary relief; or (2) involves criminal or quasi-criminal allegations. In the event after that the settlement or compromise Indemnified Party retains control of the defense of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Indemnified Party shall have assumed the defenseuse good faith efforts, the Indemnitee shall have the right consistent with prudent business judgment, to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of defend such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending permitted to assume and control the claim as set forth abovedefense and elects to do so, the Indemnifying Indemnified Party shall have the right to settle employ counsel separate from counsel employed by the claim only with Indemnifying Party in any such action and to participate in the consent defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnitee.Indemnified Party unless (A) the employment thereof has been specifically authorized by the Indemnifying Party in writing, (B) the Indemnifying