Common use of Post Closing Indemnification Clause in Contracts

Post Closing Indemnification. (a) From and after the Closing, and subject to the limitations herein, the Surviving Corporation and Parent and their respective directors, officers, employees, agents, shareholders, subsidiaries, affiliates, successors and assigns (each a “Parent Indemnified Person” and, collectively, the “Parent Indemnified Persons”) will be indemnified and held harmless from, and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses (including amounts paid in settlement, interest, court costs, costs of investigators, reasonable fees and expenses of accountants, advisors and other experts, and reasonable attorneys’ fees and expenses), including, without limitation, interest, penalties, disbursements and expenses not otherwise paid by or recovered from an applicable policy (or policies) of insurance (collectively, “Losses”) arising out of (i) the breach of or inaccuracy in any representation or warranty of the Company contained in this Agreement, (ii) the breach by the Company of, or the failure by the Company to perform, any of the covenants or other agreements contained in this Agreement to be performed by the Company prior to or at the Closing, (iii) the Company’s litigation (the “HMH Litigation”) with Houghton Mifflin Harcourt Publishing Company and its affiliates (collectively, “HMH”), excluding any litigation related to patent claims asserted by the Company or any of its affiliates against HMH after Closing, which patent claims shall not be indemnifiable nor constitute Losses under this Agreement; provided that notwithstanding the foregoing, any patent claims asserted by HMH against the Company, and any patent claims asserted by the Company or any of its affiliates against HMH after Closing in defense of any patent claims asserted by HMH, shall be indemnifiable and shall constitute Losses under this Agreement, (iv) any matters set forth in Sections 3.10(c), 3.11 or 3.14 of the Company Disclosure Schedule, (v) any Dissenting Share Liabilities (as defined below), (vi) claims made against the Surviving Corporation or Parent by a third party related to the license or failure to license by the Company of such third party’s software or other intellectual property, including without limitation, Microsoft licensing or (vii) claims made against Parent or the Surviving Corporation by the counterparty to that certain agreement set forth in Section 3.10(c)(1) of the Company Disclosure Schedule alleging that the execution and delivery of this Agreement by the Company, or the consummation of the Merger, contravened, breached, conflicted with or constituted a violation of such agreement set forth in Section 3.10(c)(1) of the Company Disclosure Schedule. In determining the amount of any Losses for which an Indemnified Person is entitled to indemnification, the amount of any such Losses shall be determined after deducting therefrom the amount of any insurance proceeds or other third party recoveries received by such Indemnified Person or any of its affiliates in respect of such Losses; provided that nothing in this Section 7.3(a) shall be deemed to limit the right of Parent Indemnified Persons to be advanced amounts from the Escrowed Property in respect of fees, costs and expenses as set forth in Section 7.5(d) below. If an indemnification payment is received by an Indemnified Person, and such Person, or any of its affiliates, later received insurance proceeds or other third party recoveries in respect of such Losses, such Indemnified Person shall promptly pay to the Indemnifying Party a sum equal to the lesser of (i) the Indemnifying Party’s pro rata share (based on percentage of Merger Consideration received by such Indemnifying Party) of the actual amount of insurance proceeds or other third party recoveries or (ii) the actual amount of the indemnification payment previously paid by the Indemnifying Party with respect to such Losses. (b) For purposes of this Agreement, “Dissenting Share Liabilities” shall mean, (i) with respect to each Dissenting Share entitled to payment pursuant to Section 23-1-44 of the IBCL an amount equal to (A) the consideration determined to be due with respect to such Dissenting Share pursuant to Section 23-1-44 of the IBCL, together with any interest and penalties therein, minus (B) the amount otherwise payable with respect to such Dissenting Share pursuant to Article 2 of this Agreement if such share was not a Dissenting Share entitled to payment pursuant to Section 23-1-44 of the IBCL, plus (ii) all costs and expenses (including amounts paid in settlement, interest, court costs, costs of investigators, reasonable fees and expenses of accountants, advisors and other experts, and reasonable attorneys’ fees and expenses) incurred in connection with the defense and prosecution of all claims made pursuant to Section 23-1-44 of the IBCL by any holder of Dissenting Shares.

Post Closing Indemnification. (a) From and after the ClosingClosing Date, ▇▇▇▇▇▇ shall defend, indemnify and subject to hold harmless Buyer and its subsidiaries (including the limitations hereinCompany) and each of their successors, the Surviving Corporation and Parent and their respective directorsassigns, officers, employeesdirectors and employees (the "Buyer Indemnitee Group") against and in respect of any and all losses, agentsactions, shareholderssuits, subsidiaries, affiliates, successors and assigns (each a “Parent Indemnified Person” and, collectively, the “Parent Indemnified Persons”) will be indemnified and held harmless from, and against all demandsproceedings, claims, actions or liabilities, damages, causes of action, demands, assessments, lossesjudgments, damages, liabilities, and investigations and any and all costs and expenses (paid to third parties, including amounts paid in settlement, interest, court costs, costs of investigatorswithout limitation, reasonable attorneys' fees and expenses of accountants, advisors and other experts, and reasonable attorneys’ fees and expenses), including, without limitation, interest, penalties, disbursements and expenses not otherwise paid by or recovered from an applicable policy (or policies) of insurance (collectively, “Losses”) "Damages"), suffered by any of them as a result of, or arising out of from: (i) the except for matters referred to in clauses (ii) and (iii) hereof and in Section 6.03, any inaccuracy in or breach of or inaccuracy in omission from any representation or warranty of the Company contained representations or warranties made by ▇▇▇▇▇▇ in Article II of this Agreement, Agreement or pursuant hereto (ii) the breach as amended by the Company ofDisclosure Supplements), or the failure by the Company to performany nonfulfillment, partial or total, of any of the covenants or other agreements contained made by ▇▇▇▇▇▇ in this Agreement to be performed the extent not waived by the Company prior Buyer in writing; (ii) except for matters referred to or at the Closing, in clause (iii) hereof and in Section 6.03, any claim, action, suit, proceeding or investigation of any kind relating to or arising from events occurring prior to the Company’s litigation (the “HMH Litigation”) with Houghton Mifflin Harcourt Publishing Company and its affiliates (collectivelyClosing Date, “HMH”), excluding any litigation related to patent claims asserted instituted by or against or involving the Company or any of its affiliates against HMH after Closingbusiness or assets (other than those claims, which patent claims shall not be indemnifiable nor constitute Losses under this Agreement; provided that notwithstanding the foregoingactions, any patent claims asserted by HMH against the Companysuits, proceedings and any patent claims asserted by the Company or any of its affiliates against HMH after Closing in defense of any patent claims asserted by HMH, shall be indemnifiable and shall constitute Losses under this Agreement, (iv) any matters investigations set forth in Sections 3.10(c)Schedule 2.14 of the Disclosure Schedule) regardless of whether such claims, 3.11 actions, suits, proceedings or 3.14 investigations are made or commenced before or after the Closing Date, provided that Damages relating to claims, actions, suits, proceedings and investigations that relate to events occurring both before and after the Closing Date shall be equitably allocated 23 - 192 - between Buyer and Sellers and; (iii) the failure or inability of the Company Disclosure Scheduleto collect all accounts receivable reflected on the Financial Statements less the amount of $20,000, (v) any Dissenting Share Liabilities (as defined below)provided, (vi) claims made against the Surviving Corporation or Parent by a third party related to the license or failure to license by however, the Company and Buyer shall have used all customary methods to collect such accounts receivable and provided further, that if ▇▇▇▇▇▇ shall be required to pay any amounts hereunder, Buyer or the Company shall assign uncollected accounts receivable to ▇▇▇▇▇▇, who may use all necessary reasonable means to collect it, including bringing an action in the name of such the Company. (b) From and after the Closing Date, Buyer shall defend, indemnify and hold harmless Sellers and their heirs, trustees, successors and assigns against and in respect of any and all losses, actions, suits, proceedings, claims, liabilities, damages, causes of action, demands, assessments, judgments, and investigations and any and all costs and expenses paid to third party’s software or other intellectual propertyparties, including without limitation, Microsoft licensing reasonable attorneys' fees and expenses, suffered by any of them as a result of, or (vii) claims made against Parent arising from, any inaccuracy in or the Surviving Corporation by the counterparty to that certain agreement set forth in Section 3.10(c)(1) breach of or omission from any of the Company Disclosure Schedule alleging that the execution and delivery representations or warranties made by Buyer in Article III of this Agreement or pursuant hereto, or any non-fulfillment, partial or total, of any of the covenants or agreements made by Buyer in this Agreement to the extent not waived by Sellers in writing. (c) From and after the Closing Date, each Seller other than ▇▇▇▇▇▇ shall defend, indemnify and hold harmless the Buyer Indemnitee Group against and in respect of any and all Damages suffered by any of them as a result of, or arising from, any inaccuracy in or breach of or omission from any of the representations or warranties made by such Seller in Article III of this Agreement or pursuant hereto, or any non-fulfillment, partial or total, of any of the covenants or agreements made by such Seller in this Agreement. (d) If a claim by a third party is made against an indemnified party, and if such party intends to seek indemnity with respect thereto under this Article VI, the indemnified party shall promptly (and in any case within thirty days of such claim being made) notify the indemnifying party of such claim, provided, however, that the failure to so notify the indemnifying party shall not discharge the indemnifying party of its obligations hereunder except that the indemnifying party shall not be liable for default judgments or any amounts related thereto if the indemnified party shall not have so notified the indemnifying party. Subject to the following sentence, the indemnifying party shall have thirty days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing (which is satisfactory to the indemnified party) the settlement or defense thereof, and the indemnified party shall cooperate with it in connection therewith (provided that the indemnifying party shall permit the indemnified party to participate in such settlement or defense through counsel chosen by the Companyindemnified party, or provided that the consummation of the Merger, contravened, breached, conflicted with or constituted a violation fees and expenses of such agreement set forth in Section 3.10(c)(1counsel shall be borne by the indemnified party) of and the Company Disclosure Schedule. In determining indemnifying party shall promptly reimburse the indemnified party for the full amount of any Losses for which an Indemnified Person is entitled loss resulting from such claim and all related expenses as incurred by the indemnified party within limits of this Article VI. Notwithstanding anything herein to indemnificationthe contrary, the amount indemnified party shall have the right to conduct and control the defense of any such Losses shall be determined after deducting therefrom claim in the amount of any insurance proceeds event that such claim (including a claim for equitable relief) or other third party recoveries received by such Indemnified Person or any of its affiliates in respect the continuation of such Losses; provided that nothing in this Section 7.3(a) shall claim could reasonably be deemed expected to limit materially adversely affect the right business, results of Parent Indemnified Persons to be advanced amounts from operations, prospects or financial condition of the Escrowed Property in respect of fees, costs and expenses as set forth in Section 7.5(d) below. If an indemnification payment is received by an Indemnified Person, and such Person, indemnified party or any of its affiliates, later received insurance proceeds provided, however, the indemnified party may not settle any claim for an amount in excess of $25,000 or other third consent to any settlement which imposes equitable remedies on the indemnifying party recoveries in respect of such Losses, such Indemnified Person shall promptly pay to or its affiliates without the Indemnifying Party a sum equal to the lesser of (i) the Indemnifying Party’s pro rata share (based on percentage of Merger Consideration received by such Indemnifying Party) prior consent of the actual amount of insurance proceeds or other third indemnifying party, which consent shall not be unreasonably withheld, unless the indemnified party recoveries or (ii) agrees to waive any right to indemnity therefor by the actual amount indemnifying party. If the indemnifying party does not notify the indemnified party within thirty days after the receipt of the indemnification payment previously paid indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof or if the indemnifying party is not reasonably contesting the claim in good faith, the indemnified party shall have the right to contest, settle or compromise the claim in the exercise of its reasonable judgment, and all losses incurred by the Indemnifying Party with respect to such Losses. (b) For purposes of this Agreementindemnified party, “Dissenting Share Liabilities” shall mean, (i) with respect to each Dissenting Share entitled to payment pursuant to Section 23-1-44 of the IBCL an amount equal to (A) the consideration determined to be due with respect to such Dissenting Share pursuant to Section 23-1-44 of the IBCL, together with any interest and penalties therein, minus (B) the amount otherwise payable with respect to such Dissenting Share pursuant to Article 2 of this Agreement if such share was not a Dissenting Share entitled to payment pursuant to Section 23-1-44 of the IBCL, plus (ii) including all costs and expenses (including amounts paid in settlement, interest, court costs, costs of investigators, reasonable fees and expenses of accountantscounsel for the indemnified party, advisors shall be paid by the indemnifying party. (e) Claims for indemnification made under this Section 6.02 shall be made within a period of one year from the Closing Date, provided, however, notwithstanding the foregoing, claims for indemnification with respect to any action, lawsuit, proceeding or investigation of any kind relating to or arising out of the matters referred to in Section 6.02(a)(ii) and other experts, and reasonable attorneys’ fees and expenses) incurred in connection with the defense and prosecution of all claims made for indemnification pursuant to Section 23-1-44 of 6.02(a)(iii) may be made within five years from the IBCL by any holder of Dissenting SharesClosing Date.

Post Closing Indemnification. (a) From and after the ClosingClosing Date, Sellers jointly and subject to severally shall defend, indemnify and hold harmless Buyer and its affiliates (including the limitations hereinCompany) and each of their successors, the Surviving Corporation and Parent and their respective directorsassigns, officers, employeesdirectors and employees (the "Buyer Indemnitee Group") against and in respect of any and all losses, agentsactions, shareholderssuits, subsidiaries, affiliates, successors and assigns (each a “Parent Indemnified Person” and, collectively, the “Parent Indemnified Persons”) will be indemnified and held harmless from, and against all demandsproceedings, claims, actions or liabilities, damages, causes of action, demands, assessments, lossesjudgments, damages, liabilities, and investigations and any and all costs and expenses (paid to third parties, including amounts paid in settlement, interest, court costs, costs of investigatorswithout limitation, reasonable attorneys' fees and expenses of accountants, advisors and other experts, and reasonable attorneys’ fees and expenses), including, without limitation, interest, penalties, disbursements and expenses not otherwise paid by or recovered from an applicable policy (or policies) of insurance (collectively, “Losses”) "Damages"), suffered by any of them as a result of, or arising out of from: (i) the any inaccuracy in or breach of or inaccuracy in omission from any representation or warranty of the Company contained representations or warranties made by Sellers in Article II of this Agreement, (ii) the breach by the Company ofAgreement or pursuant hereto, or the failure by the Company to performany nonfulfillment, partial or total, of any of the covenants or other agreements contained made by Sellers in this Agreement to be performed the extent not waived by the Company Buyer in writing; or (ii) any claim, action, suit, proceeding or investigation of any kind relating to or arising from events occurring prior to the Closing Date, instituted by or at the Closing, (iii) the Company’s litigation (the “HMH Litigation”) with Houghton Mifflin Harcourt Publishing Company and its affiliates (collectively, “HMH”), excluding any litigation related to patent claims asserted by against or involving the Company or any of its affiliates against HMH after Closingbusiness or assets (other than those claims, which patent claims shall not be indemnifiable nor constitute Losses under this Agreement; provided that notwithstanding the foregoingactions, any patent claims asserted by HMH against the Companysuits, proceedings and any patent claims asserted by the Company or any of its affiliates against HMH after Closing in defense of any patent claims asserted by HMH, shall be indemnifiable and shall constitute Losses under this Agreement, (iv) any matters investigations set forth in Sections 3.10(c), 3.11 or 3.14 Schedule 2.13 of the Company Disclosure Schedule) regardless of whether such claims, actions, suits, proceedings or investigations are made or commenced before or after the Closing Date, provided that Damages relating to claims, actions, suits, proceedings and investigations that relate to events occurring both before and after the Closing Date shall be equitably allocated between Buyer and Sellers. (vb) From and after the Closing Date, Buyer shall defend, indemnify and hold harmless Sellers and their heirs, trustees, successors and assigns against and in respect of any Dissenting Share Liabilities (as defined below)and all losses, (vi) claims made against the Surviving Corporation or Parent by a actions, suits, proceedings, claims, liabilities, damages, causes of action, demands, assessments, judgments, and investigations and any and all costs and expenses paid to third party related to the license or failure to license by the Company of such third party’s software or other intellectual propertyparties, including without limitation, Microsoft licensing reasonable attorneys' fees and expenses, suffered 10 -61- by any of them as a result of, or (vii) claims made against Parent arising from, any inaccuracy in or the Surviving Corporation by the counterparty to that certain agreement set forth in Section 3.10(c)(1) breach of or omission from any of the Company Disclosure Schedule alleging that the execution and delivery representations or warranties made by Buyer in Article III of this Agreement or pursuant hereto, or any non-fulfillment, partial or total, of any of the covenants or agreements made by Buyer in this Agreement to the extent not waived by Sellers in writing. (c) If a claim by a third party is made against an indemnified party, and if such party intends to seek indemnity with respect thereto under this Article VI, the indemnified party shall promptly (and in any case within thirty days of such claim being made) notify the indemnifying party of such claim, provided, however, that the failure to so notify the indemnifying party shall not discharge the indemnifying party of its obligations hereunder except that the indemnifying party shall not be liable for default judgments or any amounts related thereto if the indemnified party shall not have so notified the indemnifying party. Subject to the following sentence, the indemnifying party shall have thirty days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing (which is satisfactory to the indemnified party) the settlement or defense thereof, and the indemnified party shall cooperate with it in connection therewith (provided that the indemnifying party shall permit the indemnified party to participate in such settlement or defense through counsel chosen by the Companyindemnified party, or provided that the consummation of the Merger, contravened, breached, conflicted with or constituted a violation fees and expenses of such agreement set forth in Section 3.10(c)(1counsel shall be borne by the indemnified party) of and the Company Disclosure Schedule. In determining indemnifying party shall promptly reimburse the indemnified party for the full amount of any Losses for which an Indemnified Person is entitled loss resulting from such claim and all related expenses as incurred by the indemnified party within limits of this Article VI. Notwithstanding anything herein to indemnificationthe contrary, the amount indemnified party shall have the right to conduct and control the defense of any such Losses shall be determined after deducting therefrom claim in the amount of any insurance proceeds event that such claim (including a claim for equitable relief) or other third party recoveries received by such Indemnified Person or any of its affiliates in respect the continuation of such Losses; provided that nothing in this Section 7.3(a) shall claim could reasonably be deemed expected to limit materially adversely affect the right business, results of Parent Indemnified Persons to be advanced amounts from operations, prospects or financial condition of the Escrowed Property in respect of fees, costs and expenses as set forth in Section 7.5(d) below. If an indemnification payment is received by an Indemnified Person, and such Person, indemnified party or any of its affiliates, later received insurance proceeds provided, however, the indemnified party may not settle any claim for an amount in excess of $25,000 or other third consent to any settlement which imposes equitable remedies on the indemnifying party recoveries in respect of such Losses, such Indemnified Person shall promptly pay to or its affiliates without the Indemnifying Party a sum equal to the lesser of (i) the Indemnifying Party’s pro rata share (based on percentage of Merger Consideration received by such Indemnifying Party) prior consent of the actual amount of insurance proceeds or other third indemnifying party, which consent shall not be unreasonably withheld, unless the indemnified party recoveries or (ii) agrees to waive any right to indemnity therefor by the actual amount indemnifying party. If the indemnifying party does not notify the indemnified party within thirty days after the receipt of the indemnification payment previously paid indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof or if the indemnifying party is not reasonably contesting the claim in good faith, the indemnified party shall have the right to contest, settle or compromise the claim in the exercise of its reasonable judgment, and all losses incurred by the Indemnifying Party with respect to such Losses. (b) For purposes of this Agreementindemnified party, “Dissenting Share Liabilities” shall mean, (i) with respect to each Dissenting Share entitled to payment pursuant to Section 23-1-44 of the IBCL an amount equal to (A) the consideration determined to be due with respect to such Dissenting Share pursuant to Section 23-1-44 of the IBCL, together with any interest and penalties therein, minus (B) the amount otherwise payable with respect to such Dissenting Share pursuant to Article 2 of this Agreement if such share was not a Dissenting Share entitled to payment pursuant to Section 23-1-44 of the IBCL, plus (ii) including all costs and expenses (including amounts paid in settlement, interest, court costs, costs of investigators, reasonable fees and expenses of accountantscounsel for the indemnified party, advisors and other expertsshall be paid by the indemnifying party. (d) Claims for indemnification made under this Section 6.02 shall be made within a period of three years from the Closing Date, and reasonable attorneys’ fees and expenses) incurred in connection provided, however, notwithstanding the foregoing, claims for indemnification with the defense and prosecution respect to any action, lawsuit, proceeding or investigation of all claims made pursuant any kind relating to Section 23-1-44 or arising out of the IBCL by any holder of Dissenting Sharesmatters referred to in Section 6.02(a)(ii) may be made within five years from the Closing Date.

Post Closing Indemnification. (a) From and after the ClosingClosing Date, each Principal shall jointly and subject to severally defend, indemnify and hold harmless Buyer and its subsidiaries (including the limitations hereinCompany) and each of their successors, the Surviving Corporation and Parent and their respective directorsassigns, officers, employeesdirectors and employees (the "Buyer Indemnitee Group") against and in respect of any and all losses, agentsactions, shareholderssuits, subsidiaries, affiliates, successors and assigns (each a “Parent Indemnified Person” and, collectively, the “Parent Indemnified Persons”) will be indemnified and held harmless from, and against all demandsproceedings, claims, actions or liabilities, damages, causes of action, demands, assessments, lossesjudgments, damages, liabilities, and investigations and any and all costs and expenses (paid to third parties, including amounts paid in settlement, interest, court costs, costs of investigatorswithout limitation, reasonable attorneys' fees and expenses of accountants, advisors and other experts, and reasonable attorneys’ fees and expenses), including, without limitation, interest, penalties, disbursements and expenses not otherwise paid by or recovered from an applicable policy (or policies) of insurance (collectively, “Losses”) "Damages"), suffered by any of them as a result of, or arising out of from: (i) the except for matters referred to in clauses (ii) and (iii) hereof, any inaccuracy in or breach of or inaccuracy in omission from any representation or warranty of the Company contained representations or warranties made by Principals in Article II of this Agreement, Agreement or pursuant hereto (ii) the breach as amended by the Company ofDisclosure Supplements), or the failure by the Company to performany nonfulfillment, partial or total, of any of the covenants or other agreements contained made by Principals in this Agreement to be performed the extent not waived by Buyer in writing; (ii) any claim, action, suit, proceeding or investigation of any kind by WSI Corporation or its successors or assigns relating to or arising from the relationship between the Company prior and EarthWatch, including without limitation any claim, action, suit, proceeding or investigation by WSI Corporation in connection with that certain Letter of Intent between the Company and EarthWatch referred to in Schedule 2.14 of the Disclosure Schedule, or at agreements entered into between the Closing, Company and EarthWatch pursuant to such Letter of Intent; and (iii) there being outstanding at the Company’s litigation (the “HMH Litigation”) with Houghton Mifflin Harcourt Publishing Company and its affiliates (collectively, “HMH”), excluding Closing any litigation related to patent claims asserted by shares of capital stock of the Company other than those set forth on Schedule 1 attached to the Stock Purchase Agreement or any right of its affiliates against HMH after Closing, which patent claims shall not be indemnifiable nor constitute Losses under this Agreement; provided that notwithstanding the foregoing, a person to purchase or receive any patent claims asserted by HMH against additional shares of capital stock or other securities of the Company, including without limitation any outstanding subscriptions, scrip, warrants, commitments, conversion rights, calls, options or agreements to issue or sell additional securities of the Company. (b) From and after the Closing Date, Buyer shall defend, indemnify and hold harmless Principals and their heirs, trustees, successors and assigns against and in respect of any and all losses, actions, suits, proceedings, claims, liabilities, damages, causes of action, demands, assessments, judgments, and investigations and any patent claims asserted by the Company or any of its affiliates against HMH after Closing in defense of any patent claims asserted by HMH, shall be indemnifiable and shall constitute Losses under this Agreement, (iv) any matters set forth in Sections 3.10(c), 3.11 or 3.14 of the Company Disclosure Schedule, (v) any Dissenting Share Liabilities (as defined below), (vi) claims made against the Surviving Corporation or Parent by a all costs and expenses paid to third party related to the license or failure to license by the Company of such third party’s software or other intellectual propertyparties, including without limitation, Microsoft licensing reasonable attorneys' fees and expenses, suffered by any of them as a result of, or (vii) claims made against Parent arising from, any inaccuracy in or the Surviving Corporation by the counterparty to that certain agreement set forth in Section 3.10(c)(1) breach of or omission from any of the Company Disclosure Schedule alleging that the execution and delivery representations or warranties made by Buyer in Article III of this Agreement or pursuant hereto, or any non-fulfillment, partial or total, of any of the covenants or agreements made by Buyer in this Agreement to the extent not waived by Principals in writing. (c) If a claim by a third party is made against an indemnified party, and if such party intends to seek indemnity with respect thereto under this Article VI, the indemnified party shall promptly (and in any case within ten days of such claim being made) notify the indemnifying party of such claim, provided, however, that the failure to so notify the indemnifying party shall not discharge the indemnifying party of its obligations hereunder except that the indemnifying party shall not be liable for default judgments or any amounts related thereto if the indemnified party shall not have so notified the indemnifying party. Subject to the following sentence, the indemnifying party shall have thirty days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing (which is satisfactory to the indemnified party) the settlement or defense thereof, and the indemnified party shall cooperate with it in connection therewith (provided that the indemnifying party shall permit the indemnified party to participate in such settlement or defense through counsel chosen by the Companyindemnified party, or provided that the consummation of the Merger, contravened, breached, conflicted with or constituted a violation fees and expenses of such agreement set forth in Section 3.10(c)(1counsel shall be borne by the indemnified party) of and the Company Disclosure Schedule. In determining indemnifying party shall promptly reimburse the indemnified party for the full amount of any Losses for which an Indemnified Person is entitled loss resulting from such claim and all related expenses as incurred by the indemnified party within limits of this Article VI. Notwithstanding anything herein to indemnificationthe contrary, the amount indemnified party shall have the right to conduct and control the defense of any such Losses shall be determined after deducting therefrom claim in the amount of any insurance proceeds event that such claim (including a claim for equitable relief) or other third party recoveries received by such Indemnified Person or any of its affiliates in respect the continuation of such Losses; provided that nothing in this Section 7.3(a) shall claim could reasonably be deemed expected to limit materially adversely affect the right business, results of Parent Indemnified Persons to be advanced amounts from operations, prospects or financial condition of the Escrowed Property in respect of fees, costs and expenses as set forth in Section 7.5(d) below. If an indemnification payment is received by an Indemnified Person, and such Person, indemnified party or any of its affiliates, later received insurance proceeds or other third party recoveries in respect of such Lossesprovided, such Indemnified Person shall promptly pay to the Indemnifying Party a sum equal to the lesser of however, that (i) in such event the Indemnifying Party’s pro rata share (based on percentage indemnified party's selection of Merger Consideration received by such Indemnifying Party) counsel shall be subject to the approval of the actual amount of insurance proceeds or other third party recoveries or indemnifying party, which approval shall not be unreasonably withheld, and (ii) the actual indemnified party may not settle any claim for an amount in excess of $25,000 or consent to any settlement which imposes equitable remedies on the indemnifying party or its affiliates without the prior consent of the indemnification payment previously paid indemnifying party, which consent shall not be unreasonably withheld, unless the indemnified party agrees to waive any right to indemnity therefor by the Indemnifying Party with respect to such Losses. (b) For purposes of this Agreement, “Dissenting Share Liabilities” shall mean, (i) with respect to each Dissenting Share entitled to payment pursuant to Section 23-1-44 indemnifying party. If the indemnifying party does not notify the indemnified party within thirty days after the receipt of the IBCL an amount equal indemnified party's notice of a claim of indemnity hereunder that it elects to (A) undertake the consideration determined defense thereof or if the indemnifying party is not reasonably contesting the claim in good faith, the indemnified party shall have the right to be due with respect to such Dissenting Share pursuant to Section 23-1-44 contest, settle or compromise the claim in the exercise of its reasonable judgment, and all losses incurred by the IBCLindemnified party, together with any interest and penalties therein, minus (B) the amount otherwise payable with respect to such Dissenting Share pursuant to Article 2 of this Agreement if such share was not a Dissenting Share entitled to payment pursuant to Section 23-1-44 of the IBCL, plus (ii) including all costs and expenses (including amounts paid in settlement, interest, court costs, costs of investigators, reasonable fees and expenses of accountantscounsel for the indemnified party, advisors and other experts, and reasonable attorneys’ fees and expensesshall be paid by the indemnifying party. (d) incurred in connection with the defense and prosecution of all claims Claims for indemnification made pursuant to Section 23-1-44 6.02(a)(i) or Section 6.02(b) shall be made within a period of one year from the IBCL by Closing Date. Notwithstanding anything to the contrary in this Article VI, claims for indemnification pursuant to Section 6.02(a)(ii) shall be made within five years from the Closing Date, and claims for indemnification pursuant to Section 6.02(a)(iii) may be made at any holder of Dissenting Sharestime and such indemnification obligation shall survive indefinitely.