Common use of Third Person Claims Clause in Contracts

Third Person Claims. (a) Promptly after the assertion by any third party of any claim against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Notice; provided, that no delay on the part of the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within 10 days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within five (5) business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third Person claim. Notwithstanding the foregoing, should a Claim Notice; providedparty be physically served with a complaint with regard to a third Person claim, that no delay on the part of the Indemnified Party in notifying shall notify the Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor within seven (7) business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of any liability or its obligations hereunder, hereunder except to the extent that it shall have been prejudiced by such failure. (b) If any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the Indemnitor has been materially prejudiced therebyother party under the provisions of this Article XI, and then only to such extent. The the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and describe in reasonable detail, 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. In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its sole discretion choice and at its expense. Each of the parties hereto agrees to conduct cooperate fully with the other party in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand and to make available to the other party all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is reasonably required by the other party. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of any such Third Party Claimproceeding; provided, however, that the Indemnitor shall not be liable obligated pursuant to indemnify any this Section 11.5 to pay for only one firm of counsel for all Indemnified Parties. Neither the Indemnitor nor the Indemnified Party for any settlement of may settle any such Third Party Claim effected proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. Furthermore, the Indemnitor may not, without the prior written consent of the Indemnitor, which Indemnified Party (such consent shall not to be unreasonably withheld), conditioned settle any such proceeding or delayedcompromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any Indemnified Party is or would reasonably be expected to be a party and indemnity was or would reasonably be expected to be sought hereunder by such Indemnified Party, unless such settlement, compromise or consent (i) includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such action, suit or proceedings and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any Indemnified Party. If the Indemnified Party shall refuse to consent to the settlement of any third Person claim, so long as only money damages are involved and there is no admission of liability or wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such action or third Person claim is shall not exceed the amount for which the third Person claim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with the prior written consent proposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the Indemnitortime in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier’s check within 30 days after the Indemnifying Party in a reasonable manner at reasonable times regarding date of such notice. (c) To the status extent of any Third Party Claiminconsistency between this Section 11.5 and Section 8.1(c) (relating to Tax contests), including regarding strategy, bona fide settlement offers or mediations and material results the provisions of discovery and investigationSection 8.1(c) shall control with respect to Tax contests.

Third Person Claims. (a) Promptly after the assertion by In order for a party to be entitled to any third party indemnification provided for under this Agreement in respect of, arising out of or involving any legal proceeding, claim against any Indemnified Party or demand (a "Third Party Claim") thatmade by any third Person against the Indemnified Party in respect of which indemnity may be sought from the Indemnitor under this Article XI, in the judgment of such Indemnified PartyParty must notify the Indemnitor in writing, may result and in reasonable detail, of the incurrence Third Party Claim promptly after receipt by such Indemnified Party of Losses for which such Indemnified written notice of the Third Party would be entitled to indemnification pursuant to this AgreementClaim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, promptly after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the Third Party Claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Party Claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint promptly after receipt thereof and shall deliver to the Indemnitor promptly after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. (b) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim shall contain a reference to the provision of this Agreement or the Accounts Receivable Purchase Agreement upon which such claim is based, 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. (c) The Indemnitor shall have the right to conduct and control (so long as it does so diligently), at its expense and with counsel of its choosing that is reasonably satisfactory to such Indemnified Party, the defense, compromise or settlement of any such Third Party Claim Noticeagainst such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish and make available to the Indemnitor all witnesses, records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that no delay on the part of the Indemnified Party may participate, through counsel chosen by it and at its own expense, in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that Claim as to which the Indemnitor shall not be liable has so elected to indemnify any Indemnified Party conduct and control the defense thereof. Except for any the settlement of any such a Third Party Claim effected which involves the payment of money only (without the prior admission of liability), with respect to which the Indemnitor has agreed to indemnify the Indemnified Party, no Third Party Claim may be settled by the Indemnitor without the written consent of the IndemnitorIndemnified Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any such action or claim is settled with Notwithstanding the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionforegoing, the Indemnified Party shall be entitled have the right to indemnification for pay, settle or compromise any such Third Party Claim that Indemnitor has agreed to defend, provided that in such event the amount of any Loss relating thereto. The Indemnified Party shall consult with waive any right to indemnity therefor hereunder. In the Indemnifying Party in a reasonable manner at reasonable times regarding event Indemnitor has determined not to conduct and control the status defense of any such Third Party Claim, including regarding strategythe Indemnified Party may defend, bona fide compromise or settle (or take or fail to take any action with respect to) such Third Party Claim without waiver of its rights against Indemnitor hereunder. (d) After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement offers shall have been consummated, or mediations the Indemnified Party and material results the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall, subject to Section 11.5(d), forward to the Indemnitor notice of discovery any sums due and investigationowing by it with respect to such matter and the Indemnitor shall pay all of the sums so owning to the Indemnified Party by wire transfer, certified or bank cashier's check within thirty (30) days after the date of such notice. (e) To the extent of any inconsistency between this Section 11.4 and Section 8.2(c) (relating to Tax contests), the provisions of Section 8.2(c) shall control with respect to Tax contests. (f) The failure of an Indemnified Party to give any notice required in Section 11.3 or this Section 11.4 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure.

Third Person Claims. (a) Promptly after The Indemnitor shall have the assertion by any third party right to assume the defense of any claim against any Indemnified Party (a "Third Party Claim") that, in Person Claim at the judgment sole expense of the Indemnitor with counsel selected by the Indemnitor. If the Indemnitor so assumes the defense of such Indemnified PartyThird Person Claim, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Notice; provided, that no delay on the part of the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right to employ separate counsel and to participate in its the defense thereof, including all conferences, discovery proceedings, hearings, trials and appeals, provided, that the fees and expenses of such separate counsel shall be at the sole discretion to conduct expense of the Indemnified Party. If the Indemnitor so assumes the defense of any such Third Party Person Claim; provided, that (a) the Indemnitor shall not be liable promptly deliver to indemnify any the Indemnified Party for any settlement copies of any all material written notices and documents (including court papers) received by the Indemnitor relating to the Third Person Claim and shall keep the Indemnified Party reasonably apprised of the status of such Third defense and (b) the Indemnified Party Claim effected without shall cooperate with the prior written consent Indemnitor in such defense and make available, on a timely basis, to the Indemnitor all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably requested by the Indemnitor, all at the sole expense of the Indemnitor. With respect to any Third Person Claim, which neither of the Indemnitor nor the Indemnified Party shall admit any liability with respect to or pay, settle, compromise or discharge, or offer to pay, settle, compromise or discharge, such Third Person Claim without the other Indemnitor’s or Indemnified Party’s (as applicable) prior written consent, such consent shall not to be unreasonably withheld, conditioned or delayed. If any , unless such action admission, payment, settlement, compromise or claim is settled with discharge includes the prior written consent giving by each claimant or plaintiff to each of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, Indemnitor and the Indemnified Party shall be entitled to indemnification for the amount and their respective Affiliates of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party a release from all liability in a reasonable manner at reasonable times regarding the status respect of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation.such claim

Third Person Claims. (a) 8.3.1 Promptly after the assertion by any third party a DoveBid Indemnitee has received notice of or has knowledge of any claim against by a person not a party to this Agreement ("Third Person"), or the commencement of any Indemnified Party action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Person Claim") that, in the judgment that could give rise to a right of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to under this Agreement, the DoveBid Indemnitee shall, as a condition precedent to a claim with respect thereto being made against the Shareholders, give the Representative written notice of such Indemnified Party shall deliver Third Person Claim describing in reasonable detail the nature of such Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount of Damages attributable to the Indemnitor a Third Person Claim Noticeto the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the DoveBid Indemnitee's request for indemnification under this Agreement; provided, however, that no delay on the part failure of the Indemnified Party in notifying the Indemnitor DoveBid Indemnitee to give timely notice hereunder shall relieve the Indemnitor Shareholders of their indemnification obligations under this Agreement to the extent, but only to the extent that, such failure materially prejudices the Shareholders' ability to defend such claim. 8.3.2 DoveBid shall defend any liability Third Person Claim, and the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or obligations arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder. If DoveBid fails to defend such Third Person Claim, except the Shareholders shall have the right to assume the defense thereof. The Representative shall have the right to receive copies of all pleadings, notices and communications with respect to the Third Person Claim to the extent that receipt of such documents by the Indemnitor has been materially prejudiced therebyRepresentative does not affect any privilege relating to the DoveBid Indemnitee, and then only may participate in settlement negotiations with respect to such extentthe Third Person Claim. The Indemnified Party No DoveBid Indemnitee shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for enter into any settlement of any such a Third Party Person Claim effected without the prior written consent of the Indemnitor, Representative (which consent shall not be unreasonably withheld), conditioned or delayed. If provided, that if the Representative shall have consented in writing to any such action settlement, then the Representative shall have no power or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment authority to object to any Claim by any DoveBid Indemnitee for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification indemnity under Article VIII for the amount of any Loss relating thereto. The Indemnified such settlement; and the Shareholders will remain responsible to indemnify the DoveBid Indemnitee for all Damages they may incur arising out of, resulting from or caused by the Third- Party shall consult with Claim to the Indemnifying Party fullest extent provided in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationArticle VIII.

Third Person Claims. (a) 8.5.1 Promptly after either a DoveBid Indemnitee or the assertion by any third party Representatives (as the case may be) have received notice of or has knowledge of any claim against by a person not a party to this Agreement ("Third Person"), or the commencement of any Indemnified Party action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Person Claim") thatthat could give rise to a right of indemnification under this Article VIII, in such party shall, as a condition precedent to a claim with respect thereto, give to the judgment Principal Shareholders or DoveBid (as the case may be) written notice of such Indemnified PartyThird Person Claim describing in reasonable detail the nature of such Third Person Claim, may result in a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the incurrence by such Indemnified Party amount of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver Damages attributable to the Indemnitor a Third Person Claim Noticeto the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the DoveBid Indemnitee's or the Representatives' request for indemnification under this Article VIII; provided, however, that no delay on the part failure of the Indemnified Party in notifying the Indemnitor a party to give timely notice hereunder shall relieve the Indemnitor Principal Shareholders or DoveBid (as the case may be) of their indemnification obligations under this Article VIII to the extent, but only to the extent that, such failure materially prejudices such party's ability to defend such claim. 8.5.2 DoveBid shall defend any liability Third Person Claim, and the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or obligations arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder; provided that the Representatives (on behalf of the Shareholders) will have the right to participate in such defense at their sole cost and expense. The Representatives shall have the right to receive copies of all pleadings, except notices and communications with respect to the Third Person Claim to the extent that receipt of such documents by the Indemnitor has been materially prejudiced therebyRepresentatives does not affect any privilege relating to the DoveBid Indemnitee, and then only may participate in settlement negotiations with respect to such extentthe Third Person Claim. The Indemnified Party No DoveBid Indemnitee shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for enter into any settlement of any such a Third Party Person Claim effected without the prior written consent of the Indemnitor, Representatives (which consent shall not be unreasonably withheld, conditioned withheld or delayed. If ), provided, that if the Representatives shall have consented in writing to any such action settlement, then the Representatives shall have no power or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment authority to object to any Claim by any DoveBid Indemnitee for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification indemnity under Article VIII for the amount of any Loss relating thereto. The Indemnified such settlement and the Principal Shareholders will remain responsible to indemnify the DoveBid Indemnitee for all Damages they may incur arising out of, resulting from or caused by the Third- Party Claim to the fullest extent provided in Article VIII (except if and only to the extent that the Representatives shall consult with have expressly reserved the Indemnifying Party in Principal Shareholders' right to object to such Third Person Claim as a reasonable manner at reasonable times regarding the status of any Third Party Contested Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation).

Third Person Claims. (a) 8.3.1 Promptly after a DoveBid Indemnitee or the assertion Company has received notice of, or has knowledge of, any claim by any third a person not a party to this Agreement ("Third Person"), or the commencement of any action or proceeding by a Third Person (such claim against any Indemnified Party (or commencement of such action or proceeding being a "Third Party Person Claim") that, in the judgment that could give rise to a right of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to under this Agreement, the DoveBid Indemnitee or the Company shall, as a condition precedent to a claim with respect thereto being made against Shareholders, give Shareholders written notice of such Indemnified Party shall deliver Third Person Claim describing in reasonable detail the nature of such Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount of Damages attributable to the Indemnitor a Third Person Claim Noticeto the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the DoveBid Indemnitee's or the Company's request for indemnification under this Agreement; provided, however, that no delay on the part failure of the Indemnified Party in notifying DoveBid Indemnitee or the Indemnitor Company to give timely notice hereunder shall relieve the Indemnitor Shareholders of any liability or their indemnification obligations hereunder, except under this Agreement only to the extent that such failure materially prejudices Shareholders' ability to defend such claim unless notice is not received by the Indemnitor has been materially prejudiced therebythird anniversary of the Closing Date or in the case of a claim with respect to a breach of Section 2.7 by the sixth anniversary of the Closing Date. 8.3.2 DoveBid shall either directly or through the Company defend any Third Person Claim, and then the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder. To the extent such costs and expenses referred to in the preceding sentence are incurred in connection with the defense of the Outstanding Litigation, such costs and expenses shall only be included as Damages to the extent they exceed the reserve of NLG 45,000 in the Financial Statements. If DoveBid fails to defend such extent. The Indemnified Party Third Person Claim, Shareholders shall have the right in its sole discretion to conduct assume the defense thereof. Shareholders shall have the right to receive copies of all pleadings, notices and communications with respect to the Third Person Claim to the extent that receipt of such documents by Shareholders does not affect any such privilege relating to the DoveBid Indemnitee, and may participate in settlement negotiations with respect to the Third Party Person Claim; provided, that . No DoveBid Indemnitee nor the Indemnitor Company shall not be liable to indemnify any Indemnified Party for enter into any settlement of any such a Third Party Person Claim effected without the prior written consent of the Indemnitor, Shareholders (which consent shall not be unreasonably withheld), conditioned or delayed. If provided, that if Shareholders shall have consented in writing to any such action or claim is settled with the prior written consent of the Indemnitorsettlement, or if there be a final judgment then Shareholders shall have no right to object to any Claim by any DoveBid Indemnitee for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification indemnity under Article VIII for the amount of any Loss relating thereto. The Indemnified such settlement; and Shareholders will remain responsible to indemnify the DoveBid Indemnitee for all Damages that may be incurred arising out of, resulting from or caused by the Third-Party shall consult with Claim to the Indemnifying Party fullest extent provided in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationArticle VIII.

Third Person Claims. (a) Promptly after the assertion In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any Indemnified Party (a "Third Party Claim") that, in the judgment of such an Indemnified Party, may result such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the incurrence third Person claim within 10 Banking Days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within 10 Banking Days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should an Indemnified Party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor and deliver a Claim Noticecopy of the complaint within 10 Banking Days after receipt thereof and shall deliver to the Indemnitor within 10 Banking Days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. (b) In the event of the initiation of any legal proceeding, claim or demand against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel reasonably acceptable to the Indemnified Party and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any Loss or Expense indemnified against hereunder; provided, however, that no delay on the part of the Indemnified Party may participate in notifying the Indemnitor shall relieve the Indemnitor any such proceeding with counsel of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, its choice and then only to such extentat its expense. The Indemnified Party shall have parties hereto agree to cooperate fully with each other in connection with the right in its sole discretion to conduct the defense of any such Third Party Claim; provideddefense, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any negotiation or settlement of any such Third legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party Claim effected without defends against or otherwise deals with any such proceeding, claim or demand, the prior written consent Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent shall of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, conditioned arbitration board or delayed. If any such action or claim is settled with administrative agency of competent jurisdiction and the prior written consent of the Indemnitortime in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owning to the Indemnified Party shall consult with by wire transfer, certified or bank cashier's check within 30 days after the Indemnifying Party in a reasonable manner at reasonable times regarding the status date of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationsuch notice.

Third Person Claims. (a) Promptly after the assertion by any third a party has received notice of or has knowledge of any claim against any Indemnified Party (it covered by Section 11 by a "Third Party Claimor the commencement of any action or proceeding by a Third Person with respect to any such claim, such party (sometimes referred to as the "Indemnitee") that, in shall give the judgment other party (sometimes referred to as the "Indemnitor") written notice of such Indemnified Party, may result in the incurrence by claim or commencement of such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Noticeaction or proceeding; provided, however, that no delay on the part of failure to give such notice will not affect the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability right to indemnification hereunder with respect to such claim, action or obligations hereunderproceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has been materially prejudiced therebynotified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the claim by the Third Person, and then only to such extent. The Indemnified Party the Indemnitor shall have the right in its sole discretion to conduct assume and control the defense of any the claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, provided that the assumption of such Third Party Claim; provided, that defense by the Indemnitor shall not be liable constitute an acknowledgment of the obligation to indemnify any Indemnified Party for any settlement the Indemnitee hereunder. The Indemnitee may participate in the defense, at its sole expense, of any such Third Party Claim effected without claim for which the prior written consent of Indemnitor shall have assumed the Indemnitordefense pursuant to the preceding sentence, which consent shall not be unreasonably withheldprovided, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitorhowever, or if there be a final judgment that counsel for the plaintiff Indemnitor shall act as lead counsel in any all matters pertaining to the defense or settlement of such actionclaims, suit or proceeding other than claims that in Indemnitee's reasonable judgment could have a material and adverse effect on Indemnitee's business apart from the Indemnified Party payment of money damages. The Indemnitee shall be entitled to indemnification for the amount reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationclaim.

Third Person Claims. (a) 8.5.1 Promptly after either a DoveBid Indemnitee or the assertion by any third party Shareholders (as the case may be) have received notice of or has knowledge of any claim against by a person not a party to this Agreement ("Third Person"), or the commencement of any Indemnified Party action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Person Claim") thatthat could give rise to a right of indemnification under this Article VIII, in such party shall, as a condition precedent to a claim with respect thereto, give to the judgment Shareholders or DoveBid (as the case may be) written notice of such Indemnified PartyThird Person Claim describing in reasonable detail the nature of such Third Person Claim, may result in a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the incurrence by such Indemnified Party amount of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver Damages attributable to the Indemnitor a Third Person Claim Noticeto the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the DoveBid Indemnitee's or the Shareholders' request for indemnification under this Article VIII; provided, however, that no delay on the part failure of the Indemnified Party in notifying the Indemnitor a party to give timely notice hereunder shall relieve the Indemnitor Shareholders or DoveBid (as the case may be) of their indemnification obligations under this Article VIII to the extent, but only to the extent that, such failure materially prejudices such party's ability to defend such claim. 8.5.2 DoveBid shall defend any liability Third Person Claim, and the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or obligations arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder; provided that the Shareholders will have the right to participate in such defense at their sole cost and expense. The Shareholders shall have the right to receive copies of all pleadings, except notices and communications with respect to the Third Person Claim to the extent that receipt of such documents by the Indemnitor has been materially prejudiced therebyShareholders does not affect any privilege relating to the DoveBid Indemnitee, and then only may participate in settlement negotiations with respect to such extentthe Third Person Claim. The Indemnified Party No DoveBid Indemnitee shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for enter into any settlement of any such a Third Party Person Claim effected without the prior written consent of the Indemnitor, Shareholders (which consent shall not be unreasonably withheld, conditioned withheld or delayed. If ), provided, that if the Shareholders shall have consented in writing to any such action settlement, then the Shareholders shall have no power or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment authority to object to any Claim by any DoveBid Indemnitee for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification indemnity under this Article VIII for the amount of any Loss relating thereto. The Indemnified such settlement and the Shareholders will remain responsible to indemnify the DoveBid Indemnitee for all Damages they may incur arising out of, resulting from or caused by the Third-Party Claim to the fullest extent provided in Article VIII (except if and only to the extent that the Shareholders shall consult with have expressly reserved the Indemnifying Party in Shareholders' right to object to such Third Person Claim as a reasonable manner at reasonable times regarding the status of any Third Party Contested Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation).

Third Person Claims. (a) 8.3.1 Promptly after the assertion by any third party a DoveBid Indemnitee has received notice of or has knowledge of any claim against by a person not a party to this Agreement ("Third Person"), or the commencement of any Indemnified Party action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Person Claim") that, in the judgment that could give rise to a right of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to under this Agreement, the DoveBid Indemnitee shall, as a condition precedent to a claim with respect thereto being made against the Shareholders, give the Representative written notice of such Indemnified Party shall deliver Third Person Claim describing in reasonable detail the nature of such Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount of Damages attributable to the Indemnitor a Third Person Claim Noticeto the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the DoveBid Indemnitee's request for indemnification under this Agreement; provided, however, that no delay on the part failure of the Indemnified Party in notifying the Indemnitor DoveBid Indemnitee to give timely notice hereunder shall relieve the Indemnitor Shareholders of their indemnification obligations under this Agreement to the extent, but only to the extent that, such failure materially prejudices the Shareholders' ability to defend such claim. 8.3.2 DoveBid shall defend any liability Third Person Claim, and the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or obligations arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder. If DoveBid fails to defend such Third Person Claim, except the Shareholders shall have the right to assume the defense thereof. The Representative shall have the right to receive copies of all pleadings, notices and communications with respect to the Third Person Claim to the extent that receipt of such documents by the Indemnitor has been materially prejudiced therebyRepresentative does not affect any privilege relating to the DoveBid Indemnitee, and then only may participate in settlement negotiations with respect to such extentthe Third Person Claim. The Indemnified Party No DoveBid Indemnitee shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for enter into any settlement of any such a Third Party Person Claim effected without the prior written consent of the Indemnitor, Representative (which consent shall not be unreasonably withheld), conditioned or delayed. If provided, that if the Representative shall have consented in writing to any such action settlement, then the Representative shall have no power or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment authority to object to any Claim by any DoveBid Indemnitee for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification indemnity under Article VIII for the amount of any Loss relating thereto. The Indemnified Party shall consult with such settlement; and the Indemnifying Party Shareholders will remain responsible to indemnify the DoveBid Indemnitee for all Damages they may incur arising out of, resulting from or caused by the Third Person Claim to the fullest extent provided in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationArticle VIII.

Third Person Claims. (a) Promptly after the assertion If a claim by any a third party of any claim Person is made against any an Indemnified Party (including a "Third Party Claim") thatclaim with respect to Taxes), in the judgment of such Indemnified Party, may result in the incurrence by and if such Indemnified Party of Losses for which such Indemnified Party would be entitled intends to indemnification pursuant to seek indemnity with respect thereto under this AgreementArticle VIII, such Indemnified Party shall deliver promptly notify (i) Parent, in the case of indemnification sought by any Equityholder Indemnified Party, or (ii) the Representatives and the Escrow Agent, in the case of indemnification sought by any Parent Indemnified Party, in writing of such claims (a “Third Party Claim Notice”). The Third Party Claim Notice shall describe (if and to the Indemnitor a extent then known) in reasonable detail the facts giving rise to the claim for indemnification hereunder that is the subject of the Third Party Claim Notice, the amount and the method of computation of the amount of such claim, a reference to the provision of this Agreement upon which such claim is based and all material documentation relevant to the claim described in the Third Party Claim Notice (to the extent not previously provided under this Section 8.6). A Third Party Claim Notice shall be given promptly following the claimant’s determination that facts or events are reasonably expected to give rise to a claim for indemnification hereunder; provided, that, the failure to give such written notice shall not relieve any Indemnitor of its obligations hereunder, except to the extent such failure results in actual and material prejudice to the parties required to provide the indemnity pursuant to this Agreement. The failure to submit all relevant documentation with a Third Party Claim Notice or otherwise abide by the procedural covenants set forth in this Section 8.6 shall not result in the purported Third Party Claim Notice not being a proper Third Party Claim Notice hereunder, except to the extent it demonstrates actual and material prejudice by such failure. (b) The Indemnitor (acting through Parent, in the case of indemnification sought by any Equityholder Indemnified Party, and acting through the Representatives, in the case of indemnification sought by a Parent Indemnified Party) shall have 30 days after receipt of such Third Party Claim Notice to undertake, conduct and control, through counsel of its own choosing (who shall be subject to the approval of the Indemnified Party, which approval shall not be unreasonably withheld, delayed or conditioned) and at its own expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith. In such event, an Indemnified Party shall be entitled to participate with its own counsel at its own expense, provided that, if in the reasonable opinion of counsel for such Indemnified Party, there is a reasonable likelihood of a conflict of interest between the Indemnitor and the Indemnified Party, then the reasonable cost of one counsel for the Indemnified Party shall be borne by the Indemnitor. If the Indemnitor does not notify the Indemnified Party in writing within 30 days after receipt of the Indemnified Party’s written notice of a third Person claim that no delay it elects to undertake the defense thereof, the Indemnified Party shall have the right to undertake the defense or prosecution of the claim through counsel of its own choice, and the reasonable fees and expenses incurred in connection with such defense or prosecution shall be considered Losses hereunder with respect to the subject matter of such claim, indemnifiable to the extent provided in Section 8.1 and Section 8.2. In the event the Indemnitor is required by this Agreement to pay the costs of counsel of an Indemnified Party then the selection of such counsel shall be subject to the approval of the Indemnitor which approval shall not be unreasonably withheld, delayed or conditioned. (c) The Indemnitor shall not, except with the consent of the Indemnified Party, enter into any settlement or compromise any claim by a third Person that (i) does not include as a term thereof the giving by the Person or Persons asserting such claim to all Indemnified Parties of a complete and unconditional release from all Liability (subject to the application of the Deductible) with respect to such claim or consent to entry of any judgment, (ii) does not contain a finding of responsibility or Liability on the part of the Indemnified Party in notifying (other than the payment of cash for which the Indemnitor shall relieve pays in full simultaneously with the effectiveness of the settlement and upon payment of which the Indemnitor of waives any liability or obligations hereunder, except right to seek reimbursement from the Indemnified Party (subject to the extent that application of the Indemnitor has been materially prejudiced therebyDeductible)) or (iii) involves any non-monetary relief or remedy, and then only including any restrictions on the Indemnified Party’s ability to such extentoperate or compete. The Any consent required by this Section 8.6(c) shall not be unreasonably delayed, withheld or conditioned. If the Indemnified Party shall have the right in its sole discretion to conduct is controlling the defense of any such Third Party Claim; providedclaim to which it is entitled to indemnification pursuant to this Article VIII, that the Indemnitor it shall not be liable to indemnify any Indemnified Party for enter into any settlement of or compromise any such Third Party Claim effected claim by a third Person without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned. If Notwithstanding anything else to the contrary in this Agreement, the Representatives shall not settle, compromise or conclude any such action or claim is settled with respect to Taxes without the prior written consent of Parent. (d) Each party shall have reasonable access during normal business hours to the Indemnitoremployees, or if there be a final judgment books and records of the other party for purposes of investigating the plaintiff in merits of any such actionclaim which is the subject of investigation; provided, that, the Indemnified Party shall be entitled parties agree that such access will give due regard to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult minimizing interference with the Indemnifying Party in a operations, activities and employees of the other party. Each party shall use its commercially reasonable manner at reasonable times regarding efforts to preserve the confidentiality and/or privileged status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationall confidential and/or privileged information provided pursuant to such request.

Third Person Claims. If a claim (aincluding a claim by a Governmental Authority with respect to Taxes) Promptly after by a third Person is made against an Indemnified Person, and if such party intends to seek indemnity with respect thereto under this Article XI, such Indemnified Person shall promptly notify the assertion by any third party Indemnitor and the Escrow Agent in writing of any claim against any Indemnified Party (a "Third Party Claim") thatsuch claims, setting forth such claims in reasonable detail and, in the judgment case of Taxes, including copies of any notice or other document received from any Tax authority in respect of such asserted Tax liability. The Indemnitor shall have thirty (30) days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and the Indemnified Party, Person shall cooperate with it in connection therewith; provided that the Indemnified Person may result participate in the incurrence such settlement or defense through counsel chosen by such Indemnified Party Person and paid at its own expense and provided further that, if in the opinion of Losses counsel for which such Indemnified Party would Person there is a reasonable likelihood of a conflict of interest between the Indemnitor and the Indemnified Person, the Indemnitor shall be entitled responsible for reasonable fees and expenses of one counsel to indemnification such Indemnified Person in connection with such defense. So long as the Indemnitor is reasonably contesting any such claim in good faith, the Indemnified Person shall not pay or settle any such claim without the consent of the Indemnitor. If the Indemnitor does not notify the Indemnified Person within thirty (30) days after receipt of the Indemnified Person's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Person shall have the right to undertake, at Indemnitor's cost, risk and expense, the defense, compromise or settlement of the claim but shall not thereby waive any right to indemnity therefore pursuant to this Agreement. The Indemnitor shall not, such Indemnified Party shall deliver to except with the Indemnitor a Claim Notice; provided, that no delay on the part consent of the Indemnified Party in notifying Person, enter into any settlement that does not include as an unconditional term thereof the Indemnitor shall relieve giving by the Indemnitor Person or Persons asserting such claim to all Indemnified Persons of an unconditional release from all liability with respect to such claim or consent to entry of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation.judgment

Third Person Claims. (a) Promptly after the assertion In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result including without limitation any enforcement action any federal, state or local government agency, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the incurrence third Person claim promptly after receipt by such Indemnified Party of Losses for which such written notice of the third Person claim. Thereafter, the Indemnified Party would be entitled shall promptly deliver to indemnification pursuant to this Agreement, such the Indemnitor copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint promptly after receipt thereof and shall deliver to the Indemnitor a Claim Notice; provided, that no delay on promptly after the part receipt of such complaint copies of notices and documents (including court papers) physically served upon the Indemnified Party in notifying relating to the Indemnitor shall relieve the Indemnitor third Person claim. The failure of any liability Indemnified Party to give the Claim Notice promptly or obligations hereunder, to deliver copies of notices and documents as required by this Section 9.4 shall not affect such Indemnified Party’s rights under this Article 9 except to the extent that such failure is actually prejudicial to the rights and obligations of the Indemnitor. (b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, including without limitation any enforcement action any federal , state or local government agency, the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the sole and absolute right in after the receipt of notice, at its sole discretion option and at its own expense, to conduct the defense be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any such Third Party Claimproceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, that however, that, the Indemnitor shall not be liable to indemnify any Indemnified Party for may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Third legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party Claim effected without defends against or otherwise deals with any such proceeding, claim or demand, the prior written consent Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent shall of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, conditioned arbitration board or delayed. If any such action or claim is settled with administrative agency of competent jurisdiction and the prior written consent of the Indemnitortime in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier’s check within thirty (30) days after the Indemnifying Party in a reasonable manner at reasonable times regarding the status date of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationsuch notice.

Third Person Claims. (a) Promptly after the assertion by any third a party has received notice of or has knowledge of any claim against any Indemnified Party (it covered by Section 11 by a "Third Party Claim"or the commencement of any action or proceeding by a Third Person with respect to any such claim, such party (sometimes referred to as the “Indemnitee”) that, in shall give the judgment other party (sometimes referred to as the “Indemnitor”) written notice of such Indemnified Party, may result in the incurrence by claim or commencement of such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Noticeaction or proceeding; provided, however, that no delay on the part of failure to give such notice will not affect the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability right to indemnification hereunder with respect to such claim, action or obligations hereunderproceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has been materially prejudiced therebynotified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the claim by the Third Person, and then only to such extent. The Indemnified Party the Indemnitor shall have the right in its sole discretion to conduct assume and control the defense of any the claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, provided that the assumption of such Third Party Claim; provided, that defense by the Indemnitor shall not be liable constitute an acknowledgment of the obligation to indemnify any Indemnified Party for any settlement the Indemnitee hereunder. The Indemnitee may participate in the defense, at its sole expense, of any such Third Party Claim effected without claim for which the prior written consent of Indemnitor shall have assumed the Indemnitordefense pursuant to the preceding sentence, which consent shall not be unreasonably withheldprovided, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitorhowever, or if there be a final judgment that counsel for the plaintiff Indemnitor shall act as lead counsel in any all matters pertaining to the defense or settlement of such actionclaims, suit or proceeding other than claims that in Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the Indemnified Party payment of money damages. The Indemnitee shall be entitled to indemnification for the amount reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any Loss relating theretoclaim. 12 TRADEMARKS Distributor understands and agrees that it has received no right or license, express or implied, to use in any manner the name “Ben & Jerry’s” or any other trade name or trademark used or owned by Manufacturer now or in the future with the express written consent of Manufacturer except as set forth herein. Subject to the terms and conditions of this Agreement and to the continuing performance by Distributor of its obligations hereunder, Manufacturer hereby grants Distributor a non-exclusive, non-transferable and personal license to use Manufacturer’s trademarks and logos (“Marks”) solely in connection with the distribution, display and sale of the Products pursuant to this Agreement. Distributor agrees that such Marks shall be used only in the forms and manners specified and approved in writing in advance by Manufacturer. All rights granted to Distributor under this Agreement with respect to the Marks shall immediately cease and terminate upon the termination of this Agreement. The Indemnified Party provisions of this Section shall consult survive termination. 13 CONFIDENTIAL INFORMATION Confidential Information about a party learned under this Agreement shall not be used during or after the term of this Agreement except for the purpose of this Agreement and, without limiting the foregoing, such information as to the Manufacturer may not be used by the Distributor in connection with the Indemnifying Party production, marketing, distribution or sale of Distributor’s products. Confidential Information shall, for purposes of this Agreement, include all information relating to a party, its business and prospect, disclosed by such party from time to time to the other party in any manner, whether orally, visually or in tangible form (including, without limitation, documents, devices and computer readable media) and all copies thereof, created by either party. The term “Confidential Information” shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by a party which contain, reflect or are based upon the information furnished to such party by the other party pursuant hereto. Confidential Information shall not include any information that: (a) was in a reasonable manner party’s possession prior to disclosure by the other party hereunder, provided such information is not known by such party to be subject to another confidentiality agreement with or secrecy obligation to the other party; (b) was generally known in the ice cream industry at reasonable times regarding the status time of disclosure to a party hereunder, or becomes so generally known after such disclosure, through no act of such party; (c) has come into the possession of a party from a third party who is not known by such party to be under any obligation to the other party to maintain the confidentiality of such information; or (d) was independently developed by a party without the use of any Third Party ClaimConfidential Information of the other party, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationto the extent that such independent development is reasonably established by such first party to the other party.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within ten (a "Third Party Claim"10) that, in the judgment of such Indemnified Party, may result in the incurrence Business Days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on the part of as promptly as reasonably practicable after the Indemnified Party in notifying Party’s receipt thereof, copies of all notices, complaints and documents (including court papers) received by the Indemnitor relating to the third Person claim. The failure to give notice as provided in this Section 11.6 shall not relieve the Indemnitor of any liability or its obligations hereunder, hereunder except to the extent that the Indemnitor has defense of such action shall have been materially prejudiced therebyby such failure. (b) If any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, and then only to such extent. The the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and describe in reasonable detail, the facts giving rise to an alleged basis for the claim and the amount of the liability (if then known) asserted against the Indemnitor by reason of the claim. In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its sole discretion choice and at its expense. Each of the parties hereto agrees to conduct cooperate fully with the other party in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand and to make available to the other party all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is reasonably required by the other party. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of any such Third Party Claimproceeding; provided, however, that the Indemnitor shall not be liable obligated pursuant to indemnify any this Section 11.6 to pay for only one firm of counsel in each applicable jurisdiction for all Indemnified Parties. If the Indemnitor does not, within twenty (20) days of receipt of notice of a proceeding, claim or demand, give notice to the Indemnified Party for any of its election to assume the defense of such proceeding, claim or demand and thereafter promptly assume the defense of such proceeding, claim or demand, then the Indemnified Party will (upon delivering written notice to such effect to the Indemnitor) have the right to undertake the defense, compromise or settlement of such proceeding, claim or demand and the Indemnitor shall have the right to participate therein at its own cost and the Indemnitor will be bound by any judicial determination made with respect to such claim or any compromise or settlement of the claim effected by the Indemnified Party. Notwithstanding the foregoing, neither the Indemnitor nor the Indemnified Party may settle any such Third Party Claim effected proceeding, claim or demand which settlement obligates the other party to pay money, to perform obligations or to admit liability without the prior written consent of the Indemnitorother party, which such consent shall not to be unreasonably withheld, conditioned unless such settlement (i) does not involve any finding or delayed. If admission of any such action violation of applicable Requirements of Law or claim is settled with the prior written consent any violation of the Indemnitorrights of any Person, (ii) does not involve any relief other than monetary damages and (iii) includes, as an unconditional term thereof, the giving by the claimant or the plaintiff of a full and unconditional release of the Indemnified Parties from all liability with respect to the matters that are subject to such proceeding. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier’s check within five (5) Business Days after the Indemnifying Party in a reasonable manner at reasonable times regarding date of such notice. (c) To the status extent of any Third Party Claiminconsistency between this Section 11.6 and Section 8.1(c) (relating to Tax contests), including regarding strategy, bona fide settlement offers or mediations and material results the provisions of discovery and investigationSection 8.1(c) shall control with respect to Tax contests.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within 10 days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on the part of within five business days after the Indemnified Party in notifying Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) In the event any legal proceeding shall be entitled threatened in writing or instituted or any claim or demand shall be asserted in writing by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to indemnification be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, 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. In the event of the initiation of any Loss relating theretolegal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice (reasonably acceptable to the Indemnified Party) and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall consult with forward to the Indemnifying Party in a reasonable manner at reasonable times regarding the status Indemnitor notice of any Third sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party Claimby wire transfer, including regarding strategycertified or bank cashier's check within 30 days after the date of such notice. (c) Notwithstanding anything contained herein to the contrary, bona fide settlement offers Sellers shall have the exclusive right to assume the defense of, or mediations otherwise contest or settle any claim, action, suit, investigation or proceeding which is an Excluded Liability. Buyer agrees to cooperate and material results assist Sellers with all reasonable requests (including, without limitation, making employees available for interviews, depositions and trials) and to afford Sellers access to any records, reports or other documents reasonably requested by Sellers in connection with such claims, actions, suits or proceedings. (d) To the extent of discovery any inconsistency between this Section 11.5 and investigationSection 8.2(c) (relating to Tax contests), the provisions of Section 8.2(c) shall control with respect to Tax contests.

Third Person Claims. (a) Promptly after the assertion by any third party of any claim against any Indemnified Party (a "Third Party Claim") thatSubject to Section 8.5(b), in the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Notice; provided, that no delay on the part of the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct and control, through counsel of its choosing (subject to the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the IndemnitorIndemnified Person, which consent shall not be unreasonably withheld), conditioned the defense, compromise or delayed. If settlement of any such action Third Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim, provided, however, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder and all other rights to recover on such claim is settled with from the Indemnitor unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be waived; provided, further, that such settlement or compromise shall include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a full release from all liability in respect of such claim or litigation. Notwithstanding anything herein to the contrary, the Indemnitor shall not settle or compromise any Third Person Claim without the prior written consent of the IndemnitorIndemnified Party which shall not be unreasonably withheld, unless the terms of any settlement or if there be a final judgment compromise provide for (i) no relief other than the plaintiff in any such action, payment of monetary damages for which the Indemnified Party shall will be entitled to indemnification for indemnified in full and (ii) a full release of the amount of any Loss relating thereto. The Indemnified Party for all liability in respect of such claim or litigation. (b) Notwithstanding the provisions of paragraph (a) above which grant to the Indemnitor the right to assume the defense of a Third Person Claim, if (i) the Indemnitor elects not to assume the defense or fails to assume the defense in a timely manner, (ii) the Indemnitor and any Indemnified Party are both parties to or subjects of such Third Person Claim and a conflict of interests exists between the Indemnitor and such Indemnified Party which has the potential of materially and adversely affecting the interests of the Indemnified Party in the defense of such Third Person Claim or (iii) the Indemnified Party reasonably determines in good faith that the Indemnified Party or its Affiliates are reasonably likely to be adversely affected in any material respect in such Third Person Claim other than as a result of monetary damages, then the Indemnified Party may conduct its own defense and employ counsel reasonably satisfactory to the Indemnitor to represent or defend it against such Third Person Claim, in which case the Indemnitor will pay the reasonable Expenses of such counsel. If the Indemnified Party retains its own counsel, the Indemnitor shall consult reasonably cooperate in providing information to and consulting with the Indemnifying Indemnified Party in a reasonable manner at reasonable times regarding about the status of any Third Party Person Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within 10 days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within five business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third Person claim. Notwithstanding the foregoing, should a Claim Notice; providedparty be physically served with a complaint with regard to a third Person claim, that no delay on the part of the Indemnified Party in notifying shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of any liability or its obligations hereunder, hereunder except to the extent that it shall have been prejudiced by such failure. (b) If any action, lawsuit or other legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the Indemnitor has been materially prejudiced therebyother party under the provisions of this Article XI, and then only to such extent. The the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and, to the extent known, describe in reasonable detail 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. In the event of the initiation of any action, claim, lawsuit or other legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option (which must be exercised in writing within 30 days following receipt of such notice) and at its sole discretion own expense, to conduct be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with such third Person claim to the extent indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense; provided, further, that if the Indemnified Party has been advised by its outside counsel that there may exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnitor and the Indemnified Party, then any such expenses shall be promptly paid or reimbursed by the Indemnitor. Prior to assuming control of the defense of any third Person claim pursuant to the preceding sentence, the Indemnitor must acknowledge in writing that it has an indemnity obligation for any Losses or Expenses resulting from such Third third Person claim, subject to the applicable limitations set forth in this Article XI. Notwithstanding anything herein to the contrary, the Indemnitor shall not be entitled to assume or maintain control of the defense of any third Person claim, shall not be entitled to settle or compromise any such claim, and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party, if (A) the third Person claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (B) the third Person claim seeks injunctive or equitable relief against the Indemnified Party Claimor (C) the Indemnitor has not elected to defend or is failing to defend in good faith the third Person claim. Each of the parties hereto agrees to, and to cause its Affiliates to, cooperate fully with the other parties in connection with the defense, negotiation or settlement of any such action, claim, lawsuit or other legal proceeding, or demand and to make available to the other parties all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is reasonably required by the other parties. To the extent the Indemnitor elects not to defend such third Person claim, and the Indemnified Party defends against or otherwise deals with any such third Person claim, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding; provided, however, that the Indemnitor shall not be liable obligated pursuant to indemnify any this Section 11.5 to pay for only one firm of counsel for all Indemnified Parties. Neither the Indemnitor nor the Indemnified Party for may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. In the event the Indemnified Party shall refuse to consent to the settlement of any third Person claim, so long as (x) only money damages are involved; (y) there is no admission of liability or wrongdoing with respect to the Indemnified Party and (z) such Third Party Claim effected without the prior written consent proposed settlement provides an unqualified release of the IndemnitorIndemnified Party from all liability in respect of such third Person claim, which consent then, the liability of the Indemnitor in respect of such third Person claim shall not be unreasonably withheld, conditioned or delayed. If any such action or exceed the amount for which the third Person claim is could have been settled with plus the amount of expenses incurred by the Indemnified Party prior written consent to the time of the Indemnitorproposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier’s check within 15 days after the Indemnifying Party in a reasonable manner at reasonable times regarding date of such notice. (c) To the status extent of any Third Party Claiminconsistency between this Section 11.5 and Section 8.1(c) (relating to Tax contests), including regarding strategy, bona fide settlement offers or mediations and material results the provisions of discovery and investigationSection 8.1(c) shall control with respect to Tax contests.

Third Person Claims. (a) Promptly after the assertion Any Indemnitee seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party Person against the Indemnitee shall notify the Indemnifying Party in writing, and in reasonable detail, of any the third Person claim against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence promptly after receipt by such Indemnified Party Indemnitee of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim (including personal service of process). Thereafter, such Indemnified Party the Indemnitee shall deliver to the Indemnitor a Claim Notice; providedIndemnifying Party, that no delay on promptly after the part Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party Indemnitee relating to the third Person claim. The failure to give notice as provided in notifying the Indemnitor this Section 8.06 shall not relieve the Indemnitor Indemnifying Party of any liability or its obligations hereunder, hereunder except to the extent that the Indemnitor has it shall have been materially prejudiced therebyby such failure. (b) In the event of the initiation of any Action against the Indemnitee by a third Person for which the Indemnitee is seeking indemnification provided for under this Agreement, and the Indemnitee shall then only have the right, using counsel reasonably satisfactory to the Indemnifying Party, to investigate, contest, or settle such extentthird Person claim. The Indemnified Indemnifying Party shall have the right may thereafter participate in its sole discretion to conduct (but not control) the defense of any such Third Party Claim; provided, that the Indemnitor shall third Person claim with its own counsel at its own expense. The Indemnitee may not be liable to indemnify any Indemnified Party for any settlement of settle any such Third Party Claim effected claim which settlement obligates either party to pay money, to perform obligations or admit liability without the prior written consent of the Indemnitorother party, which such consent shall not to be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation.

Third Person Claims. (a) Promptly after the assertion 10.5.1 In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the incurrence third Person claim promptly after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within five (5) calendar days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a Claim Noticecopy of the complaint within five (5) calendar days after receipt thereof and shall deliver to the Indemnitor within five (5) calendar days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in each case such earlier time as may be necessary to enable the Indemnitor to respond to the court proceedings on a timely basis). 10.5.2 In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that no delay on the part Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. Such cooperation shall include the retention and the provision of records and information which is reasonably relevant to such third Person claim, and making employees available in a mutually convenient basis to provide additional information and explanation of any material provided hereunder. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding, which settlement obligates the other party to pay money, to perform obligations or to admit liability without the written consent of the other party, such consent not to be unreasonably withheld or delayed; provided that the consent of the Indemnified Party shall not be required if the Indemnitor agrees in notifying writing to pay any amounts payable pursuant to such settlement and such settlement includes a full and conditional release of the Indemnified Party. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall relieve arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnifiable by the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer within thirty (30) calendar days after the date of such notice. 10.5.3 This Clause 10.5 shall not apply to any claim for indemnification relating theretoto a breach of the Tax Warranties. The Indemnified Party provisions of Clause 4 of the Tax Deed shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationapply instead.

Third Person Claims. (ai) Promptly after any party hereto (herein ------------------- the assertion by any third party "Indemnified Party") has received notice of or has knowledge of any claim against by a person not a party to this Agreement ("Third Person"), or the commencement of any Indemnified Party action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Claim") thatthat could give rise to a right of indemnification under this Agreement, in the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled shall, as a condition precedent to a claim with respect thereto being made against any party obligated to provide indemnification pursuant to Section 11.1 or 11.2 hereof (herein the "Indemnifying Party"), give the Indemnifying Party written notice of such Third Party Claim describing in reasonable detail the nature of such Third Party Claim, a copy of all papers served with respect to that Third Party Claim (if any), an estimate of the amount of damages attributable to the Third Party Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the Indemnified Party's request for indemnification under this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Notice; provided, however, that no delay on the part failure -------- ------- of the Indemnified Party in notifying the Indemnitor to give timely notice hereunder shall relieve the Indemnitor Indemnifying Party of any liability or its indemnification obligations hereunderunder this Agreement to the extent, except but only to the extent that, such failure materially prejudices the Indemnifying Party's ability to defend such claim. Within fifteen (15) days after receipt of such notice (the "Election Period"), the Indemnifying Party shall notify the Indemnified Party (a) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 11 with respect to that Third Party Claim and (b) if the Indemnifying Party does not dispute its potential liability to the Indemnified Party with respect to that Third Party Claim, whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against that Third Party Claim. (ii) If the Indemnifying Party does not dispute its potential liability to the Indemnified Party and notifies the Indemnified Party within the Election Period that the Indemnitor Indemnifying Party elects to assume the defense of the Third Party Claim through counsel of its own choosing which is acceptable to the Indemnified Party, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, that Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 11.3(ii) and the Indemnified Party will furnish the Indemnifying Party with all information in its possession with respect to that Third Party Claim and otherwise cooperate with the Indemnifying Party in the defense of that Third Party Claim; provided, however, -------- ------- that the Indemnifying Party shall not enter into any settlement with respect to any Third Party Claim that purports to limit the activities of, or otherwise restrict in any way, any Indemnified Party or any affiliate of any Indemnified Party without the prior consent of that Indemnified Party (which consent may be withheld in the sole discretion of that Indemnified Party). The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party, to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 11.3(ii) and will bear its own costs and expenses with respect to that participation; provided, however, that if the named parties to any such -------- ------- action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been materially prejudiced therebyadvised by counsel 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, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party, and, on its written notification of that employment, the Indemnifying Party shall not have the right to assume or continue the defense of such action on behalf of the Indemnified Party. (iii) If the Indemnifying Party (a) within the Election Period (1) disputes its potential liability to the Indemnified Party under this Section 11, (2) elects not to defend the Indemnified Party pursuant to Section 11.3(ii) or (3) fails to notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 11.3(ii) or (b) elects to defend the Indemnified Party pursuant to Section 11.3(ii) but fails diligently and promptly to prosecute or settle the Third Party Claim, then only the Indemnified Party shall have the right to such extentdefend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and proceedings. Notwithstanding the right in its sole discretion foregoing, if the Indemnifying Party has delivered a written notice to conduct the defense of any such Third Indemnified Party Claim; provided, to the effect that the Indemnitor Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 11 and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be liable required to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without bear the prior written consent costs and expenses of the Indemnitor, which consent shall not be unreasonably withheld, conditioned Indemnified Party's defense pursuant to this Section 11.3 or delayed. If any such action or claim is settled with the prior written consent of the IndemnitorIndemnifying Party's participation therein at the Indemnified Party's request. The Indemnifying Party may participate in, but not control, any defense or if there be a final judgment for the plaintiff in any such action, settlement controlled by the Indemnified Party pursuant to this Section 11.3(iii), and the Indemnifying Party shall be entitled bear its own costs and expenses with respect to indemnification such participation. (iv) The parties hereto will make appropriate adjustments for any Tax benefits, Tax detriments or insurance proceeds in determining the amount of any Loss relating thereto. The Indemnified indemnification obligation under this Section 11, provided that no -------- Indemnifying Party shall consult with be obligated to seek any payment pursuant to the Indemnifying Party in a reasonable manner at reasonable times regarding the status terms of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationinsurance policy. All indemnification payments under this Section 11 shall be deemed adjustments to the Merger consideration provided for herein.

Third Person Claims. (a) Promptly after In the assertion by any third party event of any claim against for indemnification hereunder resulting from or in connection with any claim or legal proceeding by a third Person, the Indemnified Party (Persons shall, if possible, give notice thereof to the Indemnitor not later than 14 days after receipt of a "Third Party Claim") written claim or notice; provided, however, that, so long as the Indemnified Person has provided a good faith notice within the time periods set out in Sections 10.1 and 10.2 , the judgment of such Indemnified Party, may result in the incurrence omission by such Indemnified Party of Losses for which such Indemnified Party would be entitled Person to indemnification pursuant to this Agreement, such Indemnified Party give notice as provided herein shall deliver to the Indemnitor a Claim Notice; provided, that no delay on the part of the Indemnified Party in notifying the Indemnitor shall not relieve the Indemnitor of any liability or obligations hereunder, its indemnification obligation under this Article X except to the extent that the Indemnitor has been Indemnifying Person is materially prejudiced thereby, and then only damaged as a result of such failure to such extentgive notice. The Indemnified Party Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any third Person claim, action or suit against such Indemnified Person as to which indemnification will be sought by any Indemnified Person from any Indemnitor hereunder, if the Indemnitor has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnitor is obligated to provide indemnification to the Indemnified Person in respect thereof, and in any such case the Indemnified Person shall reasonably cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith; provided, that: (1) subject to the succeeding clause (2), the Indemnified Person may participate, through counsel chosen by it in its sole discretion and at its own expense, in the defense of any such claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (2) in the event the Indemnitor does not comply with this Section 10.4 or does not or ceases to conduct the defense of any such Third claim actively and diligently (following notice thereof by the Indemnified Party Claim; providedand a reasonable opportunity to cure by the Indemnitor), that (a) the Indemnified Party may defend against, and with the prior written consent of the Indemnitor (which consent shall not be liable unreasonably withheld or delayed) consent to indemnify the entry of any judgment or enter into any settlement with respect to, such claim, (b) the Indemnitor will reimburse the Indemnified Party promptly and periodically for the costs of defending against such claim, including reasonable attorneys’ fees and expenses and (c) the Indemnitor will remain responsible for any settlement Losses or Expenses the Indemnified Party may suffer as a result of any such Third Party Claim effected claim to the full extent provided in Section 10.1 or Section 10.2, as the case may be. (3) without the prior written consent of the IndemnitorIndemnified Person, the Indemnitor will not enter into any settlement of any third Person claim which consent would lead to (a) any criminal liability or (b) civil liability or create any financial or other obligation on the part of the Indemnified Person which is not paid or reimbursed in full by the Indemnitor on account of its indemnification obligations hereunder. Notwithstanding the foregoing, the Indemnified Person shall not be unreasonably withheldhave the right to pay, conditioned settle or delayed. If compromise any such claim, action or claim is settled with suit without the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff provided that in any such action, event the Indemnified Party Person shall be entitled waive any right to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationindemnity therefor hereunder unless such consent was unreasonably withheld.

Third Person Claims. (a) Promptly after the assertion If a claim by any a third party of any claim Person is made against any Indemnified Party (a "Third Party Claim") that, in the judgment of such an Indemnified Party, may result in the incurrence by and if such Indemnified Party of Losses for which such Indemnified Party would be entitled party intends to indemnification pursuant to seek indemnity with respect thereto under this AgreementArticle VIII, such Indemnified Party shall deliver promptly notify (i) Kenexa Technology, in the case of indemnification sought by any Equityholder Indemnified Party, or (ii) the Representative, in the case of indemnification sought by any Kenexa Indemnified Party, in writing of such claims, setting forth such claims in reasonable detail and providing copies of any written documentation provided by the third Person in connection with its claims. The Indemnitor (acting through Kenexa Technology, in the case of indemnification sought by any Equityholder Indemnified Party, and acting through the Representative, in the case of indemnification sought by a Kenexa Indemnified Party) shall have fifteen (15) days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the Indemnitor a Claim Notice; providedsettlement or defense thereof, that no delay on the part of and the Indemnified Party shall cooperate with it in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claimconnection therewith; provided, that the Indemnified Party may participate in such settlement or defense through counsel chosen by such Indemnified Party and paid at its own expense; provided, further, that, if in the reasonable opinion of counsel for such Indemnified Party, there is a reasonable likelihood of a conflict of interest between the Indemnitor and the Indemnified Party such that a joint representation of both parties would be inappropriate under applicable standards of professional conduct, the Indemnitor shall not be liable responsible for the reasonable fees and expenses of one counsel to indemnify any such Indemnified Party for any settlement of in connection with such defense. So long as the Indemnitor is reasonably contesting any such Third claim in good faith, the Indemnified Party Claim effected shall not pay or settle any such claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent Indemnitor does not notify the Indemnified Party in writing within fifteen (15) days after receipt of the Indemnitor, or if there be Indemnified Party’s written notice of a final judgment for claim of indemnity hereunder that it elects to undertake the plaintiff in any such actiondefense thereof, the Indemnified Party shall have the right to undertake, at Indemnitor’s cost, risk and expense, the defense, compromise or settlement of the claim, but shall not thereby waive any right to indemnity therefore pursuant to this Agreement. The Indemnitor shall pay the Indemnified Party’s expenses as and when incurred. The Indemnitor shall not, except with the consent of the Indemnified Party (which will not be entitled unreasonably withheld), enter into any settlement or consent to indemnification for the amount entry of any Loss relating thereto. The judgment that (A) does not include as an unconditional term thereof the giving by the Person or Persons asserting such claim to all Indemnified Party shall consult Parties of an unconditional release from all Liability with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of respect to such claim (and any Third Party Claimpotential similar or analogous claims), (B) involves non-monetary relief or remedy, including regarding strategyany restrictions on the Indemnified Party’s ability to operate or compete, bona fide settlement offers or mediations and material results of discovery and investigation(C) exceeds the remaining amount in the General Escrow Account.

Third Person Claims. (a) Promptly after If a claim by a third Person is made against a Covered Party, and if such party intends to seek indemnity with respect thereto under this Article VII, such Covered Party shall promptly notify the assertion by any third party of any claim against any Indemnified Indemnifying Party (a "Third Party Claim") that, in the judgment writing of such Indemnified Partyclaims, may result setting forth such claims in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified reasonable detail. The Indemnifying Party shall have twenty (20) days following receipt of such notice to deliver to the Indemnitor Covered Party a Claim Noticewritten acknowledgement that such claim is an indemnifiable claim under this Article VII, that it shall undertake, conduct and control (in accordance with the terms hereof), through counsel of their own choosing and at their own expense, the settlement or defense thereof, and the Covered Party shall cooperate with them in connection therewith; provided, that no delay on that, the part Covered Party may participate in such settlement or defense through counsel chosen by such Covered Party and paid at its own expense, provided further that, if in the reasonable opinion of counsel for Indemnifying Party, there is a reasonable likelihood of a conflict of interest between the Indemnifying Party and the Covered Party, the Indemnifying Party shall be responsible for reasonable fees and expenses of one counsel to such Covered Party in connection with such defense. The Covered Party shall not pay or settle any such claim without the consent of the Indemnified Sellers’ Representative with respect to claims where the Sellers are the Indemnifying Party in notifying and Buyer where Buyer is the Indemnitor shall relieve Indemnifying Party. If the Indemnitor of any liability or obligations hereunder, except Indemnifying Party does not deliver to the extent Covered Party a written acknowledgement that such claim is an indemnifiable claim under this Article VII within such twenty (20) days, the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Covered Party shall have the right in its sole discretion to conduct undertake the defense defense, compromise or settlement of the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Covered Party, enter into any settlement that is not exclusively monetary paid entirely by the Indemnifying Party and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Covered Parties of an unconditional release from all liability with respect to such claim or consent to entry of any such Third judgment. Notwithstanding the foregoing, the Indemnifying Party Claim; provided, that the Indemnitor shall not be liable entitled to indemnify control any Indemnified Party claim relating to Taxes of Buyer or its Subsidiaries, or the Group Companies for any settlement Tax period ending after the Closing Date and shall not be entitled to settle, either administratively or after the commencement of litigation, any such Third Party Claim effected claim for Taxes which could adversely affect the liability of Buyer or its Subsidiaries, or the Group Companies for Taxes for any Tax period (or portion thereof) after the Closing Date, without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationBuyer.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Third Party against any the Indemnified Party (a "shall notify the Indemnitor in writing, and in reasonable detail, of the Third Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence claim within 10 days after receipt by such Indemnified Party of Losses for which such Indemnified written notice of the Third Party would be entitled to indemnification pursuant to this Agreementclaim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on the part of within five business days after the Indemnified Party in notifying Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; providedclaim. Notwithstanding the foregoing, that the Indemnitor shall not should a party be liable physically served with a complaint with regard to indemnify any Indemnified Party for any settlement of any such a Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionclaim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Party claim. The failure to give notice as provided in this SECTION 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. (b) In the event any legal proceeding shall be entitled threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this ARTICLE XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to indemnification be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement upon which such claim is based, 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. In the event of the initiation of any Loss relating theretolegal proceeding against the Indemnified Party by a Third Party, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice (reasonably acceptable to the Indemnified Party) and, subject to the Settlement Limitation (as defined below), to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim or demand which relates to any loss, liability or damage indemnified against hereunder; PROVIDED, HOWEVER, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense (provided that if the use of the counsel selected by the Indemnitor would present a conflict of interest with the interests of the Indemnified Party, then the Indemnitor shall bear the reasonable Expenses of the Indemnified Party's counsel). If the Indemnitor elects to undertake such defense, it shall promptly assume and hold such Indemnified Party harmless from and against the full amount of Losses and Expenses resulting from such Third Party claim to the extent provided herein. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend or fails promptly (but in any event within 30 days of notice thereof) to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle (the "SETTLEMENT LIMITATION") any such proceeding if the settlement obligates the other party to pay money, to perform obligations or to admit liability, culpability, failure to act or other fault or imposes upon the other party injunctive or other equitable relief without the consent of the other party, such consent not to be unreasonably withheld or delayed. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall consult with forward to the Indemnifying Party in a reasonable manner at reasonable times regarding the status Indemnitor notice of any Third sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party Claimby wire transfer, including regarding strategycertified or bank cashier's check within 30 days after the date of such notice. (c) If there shall be any conflicts between the provisions of this SECTION 11.5 and SECTION 8.2(C), bona fide settlement offers or mediations and material results the provisions of discovery and investigationSECTION 8.2(C) shall control with respect to Tax contests.

Third Person Claims. In the event indemnification is sought pursuant to SECTION 10.1 OR 10.2: (a) Promptly promptly after any party hereto (hereinafter the assertion by any third party "INDEMNIFIED PARTY") has received notice of or has actual knowledge of any claim by a person not a party to this Agreement ("THIRD PERSON"), or the commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "THIRD PARTY CLAIM") that could give rise to a right of indemnification under this Agreement, the Indemnified Party shall, as a condition precedent to a claim with respect thereto being made against any Indemnified party obligated to provide indemnification pursuant to SECTION 10.1 OR 10.2 hereof (hereinafter the "INDEMNIFYING PARTY"), give the Indemnifying Party (a "written notice of such Third Party Claim describing in reasonable detail the nature of such Third Party Claim") that, in a copy of all papers served with respect to that Third Party Claim (if any), an estimate of the judgment amount of damages attributable to the Third Party Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the Indemnified Party, may result in the incurrence by such Indemnified Party of Losses 's request for which such Indemnified Party would be entitled to indemnification pursuant to under this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Notice; provided, however, that no delay on the part failure of the Indemnified Party in notifying the Indemnitor to give timely notice hereunder shall relieve the Indemnitor Indemnifying Party of any its indemnification obligations under this Agreement. Within twenty (20) days after receipt of such notice (the "ELECTION PERIOD"), the Indemnifying Party shall notify the Indemnified Party (a) whether the Indemnifying Party disputes its potential liability or obligations hereunder, except to the extent Indemnified Party under this SECTION 10 with respect to that Third Party Claim and (b) if the Indemnifying Party does not dispute its potential liability to the Indemnified Party with respect to that Third Party Claim, whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against that Third Party Claim. (b) if the Indemnifying Party does not dispute its potential liability to the Indemnified Party and notifies the Indemnified Party within the Election Period that the Indemnitor has been materially prejudiced therebyIndemnifying Party elects to assume the defense of the Third Party Claim through counsel of its own choosing, and then only to such extent. The Indemnified the Indemnifying Party shall have the right to defend, at its sole cost and expense, that Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this SECTION 10.4 and the Indemnified Party will furnish the Indemnifying Party with all information in its sole discretion possession with respect to conduct that Third Party Claim and otherwise cooperate with the Indemnifying Party in the defense of any such that Third Party Claim; provided, however, that the Indemnitor Indemnifying Party shall not enter into any settlement with respect to any Third Party Claim that purports to limit the activities of, or otherwise restrict in any way, any Indemnified Party or any affiliate of any Indemnified Party without the prior consent of that Indemnified Party (which consent shall not be liable unreasonably withheld). The Indemnifying Party is hereby authorized, at the sole cost and expense of the Indemnifying Party, to indemnify file, during the Election Period, any motion, answer or other pleadings that the Indemnifying Party shall deem necessary or appropriate to protect its interests or those of the Indemnified Party. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this SECTION 10.4 and will bear its own costs and expenses with respect to that participation; provided, however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel 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, and that it would be a non-waivable conflict of interest for counsel for the Indemnifying Party to also represent the Indemnified Party in such action, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party, and, on its written notification of that employment, the Indemnifying Party shall not have the right to assume or continue the defense of such action on behalf of the Indemnified Party; provided, however, the Indemnified Party shall not enter into any settlement of with respect to any such Third Party Claim effected without the prior written consent of the Indemnitor, Indemnifying Parties (which consent shall not be unreasonably withheld). In the event a waivable conflict of interest arises, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff as described in any such actionpreceding sentence, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with hereby grants such a waiver and will sign whatever further documentation the Indemnifying Party in may reasonably require to confirm such a reasonable manner at reasonable times regarding waiver. (c) if the status of any Indemnifying Party (i) within the Election Period (A) disputes its potential liability to the Indemnified Party under this SECTION 10.4, (B) elects not to defend the Indemnified Party pursuant to SECTION 10.4 or (C) fails to notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to SECTION 10.4 or (ii) elects to defend the Indemnified Party pursuant to SECTION 10.4 but fails diligently and promptly to prosecute or settle the Third Party Claim, including regarding strategythen the Indemnified Party shall have the right to defend the Third Party Claim by all appropriate proceedings. If it is determined after resolution of all disputes that the Indemnifying Party failed to fulfill its obligations under SECTION 10.1 OR 10.2 with regard to the defense of such Third Party Claim, bona fide settlement offers or mediations and material results of discovery and investigationthe Indemnifying Party shall be obligated to reimburse the Indemnified Party for any expenses the Indemnified Party has incurred to defend such claim.

Third Person Claims. (ai) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within five business days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on within 10 business days after the part Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall be entitled notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to indemnification for the amount Indemnitor within seven business days after the receipt of any Loss such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating theretoto the third Person claim. The failure to give notice as provided in this paragraph (f)(i) of this Section 14 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (ii) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Section 14, the Indemnified Party shall consult promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and the amount (including the method of computation of the amount) of the liability asserted against the Indemnitor by reason of the claim. In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the Indemnifying Party in a reasonable manner at reasonable times regarding the status defense, negotiation or settlement of any Third such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party Claimdefends against or otherwise deals with any such proceeding, including regarding strategyclaim or demand, bona fide the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement offers obligates the other party to pay money, to perform obligations or mediations to admit liability without the consent of the other party, such consent not to be unreasonably withheld or delayed. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and material results the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of discovery any sums due and investigationowing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier's check within 30 days after the date of such notice.

Third Person Claims. (a) Promptly after the assertion In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Person Claim") that), in the judgment of such Indemnified Party, may result Party must notify the Indemnitor in writing of the incurrence Third Person Claim within 10 days after receipt by such Indemnified Party of Losses for written notice thereof. Any notice of a Third Person Claim shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such Indemnified Party would be entitled claim is based, the facts giving rise to indemnification pursuant to this Agreementan alleged basis for the claim and (if then known) the amount of the liability asserted against the Indemnitor by reason of the claim. Following such notice of a Third Person Claim, such the Indemnified Party shall deliver to the Indemnitor, within five business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating thereto. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Person Claim, the -21- Indemnified Party must notify the Indemnitor with a Claim Noticecopy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. (b) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of a Third Party Claim, the Indemnitor shall have the sole and absolute right after the receipt of the notice required by Section 7.4(a), at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any such proceeding, claim or demand; provided, however, that no delay on the part of the Indemnified Party may participate in notifying the Indemnitor shall relieve the Indemnitor any such proceeding with counsel of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, its choice and then only to such extentat its expense. The Indemnified Party shall have parties hereto agree to cooperate fully with each other in connection with the right in its sole discretion to conduct the defense of any such Third Party Claim; provideddefense, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any negotiation or settlement of any such Third legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party Claim effected defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the prior written consent of the Indemnitorother party, which consent shall not be unreasonably withheld. After any final judgment or award shall have been rendered by a court, conditioned arbitration board or delayed. If any such action or claim is settled with administrative agency of competent jurisdiction and the prior written consent of the Indemnitortime in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at an agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier's check within 30 days after the Indemnifying Party in a reasonable manner at reasonable times regarding the status date of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationsuch notice.

Third Person Claims. (a) Promptly after The Indemnitor shall have the assertion right, exercisable by any third party of any claim against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled written notice to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Notice; provided, that no delay on the part of the Indemnified Party in notifying within twenty (20) days after receipt of a Claim Notice for a Third Person Claim, to conduct and control, through counsel of its choosing, the defense, compromise or settlement of such Third Person Claim; provided that the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent acknowledges and agrees in writing that the Indemnitor has been materially prejudiced thereby, and then only the obligation to indemnify the Indemnified Party with respect to such extentThird Person Claim hereunder. The In any such case the Indemnified Party shall have cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the right Indemnitor in connection therewith; provided that the Indemnified Party may participate, through counsel chosen by it and at its sole discretion to conduct own expense, in the defense of any such Third Party Claim; provided, Person Claim (including any discussions and negotiations regarding settlement or compromise) and provided further that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected not, without the prior written consent of the Indemnitor, Indemnified Party (which written consent shall not be unreasonably withheld), conditioned compromise or delayedsettle such Third Person Claim. If Notwithstanding the foregoing, the Indemnitor shall have the right to settle or compromise any such action Third Person Claim without such consent, so long as the settlement (1) does not provide for injunctive or claim other nonmonetary relief affecting any Indemnified Party, (2) does not include any admission of fault, culpability or wrongdoing and (3) includes as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a complete and unconditional release from all liability with respect to such Third Person Claim. (b) Notwithstanding the foregoing, if either (i) the Indemnitor does not so assume the defense of a Third Person Claim, or (ii) such Third Person Claim either (A) seeks permanent injunctive relief, (B) where any Key Securityholder is settled with the prior written consent of the Indemnitor, seeks any other equitable remedies which, if granted, would reasonably be expected to have a Material Adverse Effect on the Surviving Corporation, (C) is a criminal proceeding or (D) involves or arises out of any inquiry, investigation or proceeding by any Governmental Body, including any civil investigative demand or an investigation or inquiry (including proceedings, inquiries, actions or investigations by any Governmental Body, so-called “whistleblower” or qui tam complaints, even if there be the government has declined to intervene in such “whistleblower” or qui tam complaints) (provided that in the case of any Third Person Claim described in this clause (D), if such Third Person Claim is adversely determined, such Third Person Claim would have a final judgment for material adverse effect on the plaintiff in any such actionbusiness or reputation of the Surviving Corporation or Parent), then the Indemnified Party shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of such Third Person Claim. In any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be entitled to indemnification for reasonably requested by the amount of any Loss relating thereto. The Indemnified Party shall consult with in connection therewith; provided that the Indemnifying Party Indemnitor may participate, through counsel chosen by it and at its own expense, in a reasonable manner at reasonable times the defense of such Third Person Claim (including any discussions and negotiations regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationcompromise).

Third Person Claims. (a) Promptly after Except as set forth in Section 7.2(d), Section 7.2(e) or Section 7.2(f), if a Third Person Claim is commenced, then the assertion by any third party of any claim against any Indemnified Party Owners have or the Parent has, the case may be (the “Defense Provider”), a "right to provide a defense to the Parent and its Affiliates or the Owners, as the case may be (the “Defense Recipient”), concerning the Third Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses Person Claim for which such Indemnified Party would the Defense Recipient has delivered a claim notice to the Defense Provider in accordance with Section 7.3. The Defense Provider has the right to select counsel that will defend the Defense Recipient, subject to the Defense Recipient’s approval, not to be entitled unreasonably withheld. The Defense Provider has the right to indemnification pursuant settle or compromise the Third Person Claim, subject to this Agreementthe Defense Recipient’s approval, not to be unreasonably withheld. The Defense Recipient must disclose to the Defense Provider all information concerning the Third Person Claim except privileged materials relevant to any actual or potential dispute with the Defense Provider concerning the Defense Provider’s liability to pay for Losses arising out of the Third Person Claim, and must timely inform and consult with the Defense Provider on all matters relating to the Third Person Claim. The Defense Recipient and the Defense Provider acknowledge and agree that any information disclosed by the Defense Recipient or by independent counsel to the Defense Recipient is not a waiver of the privilege as to any other Person. If the Defense Provider fails, after exercising its right to provide a defense, to diligently pursue the defense of the Defense Recipient, such Indemnified Party shall deliver as, by failing to select counsel, then the Indemnitor a Claim Notice; provided, that no delay on the part of the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall Defense Recipient will have the right to defend itself and select counsel of its own choosing and to take actions in its sole discretion to conduct best interests concerning the defense of any such Third Party Person Claim; provided, that and the Indemnitor shall Defense Recipient will not be liable required to indemnify any Indemnified Party cooperate with the Defense Provider concerning the exchange of information unless otherwise required by the other provisions of this Agreement. The Defense Provider, and not the Defense Recipient, will solely be responsible for any settlement of any such Third Party Claim effected without the prior written consent payment of the Indemnitorfees and expenses of counsel provided by Defense Provider, which consent shall not and Defense Provider must pay that counsel’s fees and expenses when due, except that if the Defense Recipient unreasonably withholds approval from Defense Provider concerning the Defense Provider’s right to settle or compromise the Third Person Claim, then after the unreasonable withholding of approval, the Defense Recipient will solely be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent responsible for payment of the Indemnitorfees and expenses of that counsel incurred after the unreasonable withholding of approval, or if there be a final judgment for and the plaintiff in any such action, Defense Recipient must pay when due that counsel’s fees and expenses incurred after the Indemnified Party shall be entitled to indemnification for the amount unreasonable withholding of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationapproval.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within 10 days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on the part of within five business days after the Indemnified Party in notifying Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.6 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. 49 (b) In the event any legal proceeding shall be entitled threatened in writing or instituted or any claim or demand shall be asserted in writing by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to indemnification be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, 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. In the event of the initiation of any Loss relating theretolegal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense except that the Indemnitor will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party’s good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnitor and the Indemnified Party or (y) the named parties to such third Person claim include both the Indemnitor and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnitor. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall consult with forward to the Indemnifying Party in a reasonable manner at reasonable times regarding the status Indemnitor notice of any Third sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party Claimby wire transfer, including regarding strategycertified or bank cashier’s check within 30 days after the date of such notice. (c) To the extent of any inconsistency between this Section 11.6 and Section 8.2(c) (relating to Tax contests), bona fide settlement offers or mediations and material results the provisions of discovery and investigationSection 8.2(c) shall control with respect to Tax contests.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "“Third Party Person Claim"”) thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in Third Person Claim within ten (10) Business Days (or reasonably more promptly dependent upon the incurrence circumstances) after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the Third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the Third Person Claim. Any notice of a Claim Noticeclaim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim is based and describe in reasonable detail (to the extent known) 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 Third Person Claim; provided, however, that no the failure or delay on the part of the Indemnified Party in notifying to give notice to the Indemnitor as provided in this Section 8.4 shall not relieve the Indemnitor of any liability or its obligations hereunder, hereunder except to the extent that the Indemnitor has shall have been materially prejudiced therebyby such failure. (b) In the event of the initiation of a Third Person Claim, and then only to such extent. The Indemnified Party the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice, which counsel shall be reasonably acceptable to the Indemnified Party, and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in its sole discretion to conduct the defense of any such Third Party Claimproceeding with counsel of its choice and at its expense; provided, however, that the Indemnitor shall not be liable entitled to indemnify assume or continue control of the defense of any Third Person Claim if (i) the Third Person Claim relates to or arises in connection with any criminal Proceeding or (ii) the Third Person Claim seeks an injunction or equitable relief against any Indemnified Party for any Party. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any Third Person Claim. To the extent the Indemnitor elects not to or fails to defend such Third Person Claim and the Indemnified Party Claim effected without defends against or otherwise deals therewith, the prior written consent Indemnified Party may retain counsel at the expense of the Indemnitor, which counsel shall be reasonably acceptable to the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability, or which fails to fully and unconditionally release the other party from liability, without the consent shall of the other party, such consent not to be unreasonably withheld, conditioned or delayed. If . (c) To the extent of any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actioninconsistency between this Section 8.4 and Section 7.1(c) (relating to Tax contests), the Indemnified Party provisions of Section 7.1(c) shall be entitled control with respect to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationTax contests.

Third Person Claims. (a) Promptly after the assertion In order for a Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the incurrence third Person claim within ten days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within five days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a Party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a Claim Noticecopy of the complaint within five days after receipt thereof and shall deliver to the Indemnitor within seven days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in each case such earlier time as may be necessary to enable the Indemnitor to respond to the court proceedings on a timely basis). (b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that no delay on the part of the Indemnified Party may participate in notifying the Indemnitor shall relieve the Indemnitor any such proceeding with counsel of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, its choice and then only to such extentat its expense. The Indemnified Party shall have Parties agree to cooperate fully with each other in connection with the right in its sole discretion to conduct the defense of any such Third Party Claim; provideddefense, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any negotiation or settlement of any such Third legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party Claim effected without defends against or otherwise deals with any such proceeding, claim or demand, the prior written consent Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding, which settlement obligates the other Party to pay money, to perform obligations or to admit liability without the consent shall of the other Party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, conditioned arbitration board or delayed. If any such action or claim is settled with administrative agency of competent jurisdiction and the prior written consent of the Indemnitortime in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnifiable by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer within thirty (30) days after the Indemnifying Party in a reasonable manner at reasonable times regarding the status date of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationsuch notice.

Third Person Claims. (a) Promptly after the assertion by any third party an Indemnitee has received notice ------------------- of or has knowledge of any claim against any Indemnified Party by a person not a party to this Agreement (a "Third Party ClaimPerson") thator the commencement of any action or proceeding by a Third Person, in the judgment Indemnitee shall, as a condition precedent to a claim with respect thereto being made against the Escrow Agreement, give the Stockholder Representative written notice of such Indemnified Party, may result in claim or the incurrence by commencement of such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Noticeaction or proceeding; provided, however, that no delay on the part of failure to give such notice will not -------- ------- effect the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability Indemnities' right to indemnification hereunder with respect to such claim, action or obligations hereunderproceeding, except to the extent that the Indemnitor has Stockholder Representative has, or the Stockholders have, been materially actually prejudiced therebyas a result of such failure. If the Stockholder Representative notifies the Indemnitee within 30 days from the receipt of the foregoing notice that he wishes to defend against the claim by the Third Person and if the estimated amount of the claim, and together with all other claims made against the Escrow Funds that have not been settled, is less than the remaining balance of the Escrow Funds, then only to such extent. The Indemnified Party the Stockholder Representative shall have the right to assume and control the defense of the claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the Stockholder Representative shall be entitled to reimbursement out of the Escrow Funds for such defense. The Indemnitee may participate in the defense, at its sole discretion expense of any such claim for which the Stockholder Representative shall have assumed the defense pursuant to conduct the preceding sentence, provided that counsel for the Stockholder Representative shall act as lead counsel in all matters pertaining to the defense or settlement of such claims, suit or proceedings; provided, however, -------- ------- that Indemnitee shall control the defense of any such Third Party Claim; provided, claim or proceeding that in Indemnitee's reasonable judgment could have a material and adverse effect on Indemnitee's business apart from the Indemnitor payment of money damages. The Indemnitee shall not be liable entitled to indemnify any Indemnified Party indemnification for the reasonable fees and expenses of its counsel for any settlement period during which the Stockholder Representative has not assumed the defense of any claim. Whether or not the Stockholder Representative shall have assumed the defense of any claim, neither the Indemnitee nor the Stockholder Representative shall make any settlement with respect to any such Third Party Claim effected claim, suit or proceeding without the prior written consent of the Indemnitorother, which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any such action or It is understood and agreed that in situations where failure to settle a claim is settled with expeditiously could have an adverse effect on the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionparty wishing to settle, the Indemnified Party failure of a party controlling the defense to act upon a request for consent to such settlement within ten business days of receipt of notice thereof shall be entitled deemed to indemnification constitute consent to such settlement for the amount purposes of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationthis Section 8.1.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within 10 Business Days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within 5 Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third Person claim. Notwithstanding the foregoing, should a Claim Notice; providedparty be physically served with a complaint with regard to a third Person claim, that no delay on the part of the Indemnified Party in notifying shall notify the Indemnitor with a copy of the complaint within 10 Business Days after receipt thereof and shall deliver to the Indemnitor within 5 Business Days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice or make deliveries as provided in this Section 11.5(a) shall not relieve the Indemnitor of any liability or its obligations hereunder, hereunder except to the extent that it shall have been prejudiced by such failure. (b) If any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the Indemnitor has been materially prejudiced therebyother party under the provisions of this Article XI, and then only to such extent. The the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor, but the failure to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and describe in reasonable detail (to the extent known) 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. In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder except to the extent the Indemnitor is also a party to such legal proceeding and joint defense would involve a conflict of interest under applicable professional standards; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its sole discretion choice and at its expense. Each of the parties hereto agrees to conduct cooperate fully with the other parties in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand and to make available to the other parties all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is reasonably required by the other parties. To the extent the Indemnitor fails to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of any such Third Party Claimproceeding; provided, however, that the Indemnitor shall not be liable obligated pursuant to indemnify any this Section 11.5 to pay for only one firm of counsel (and local counsel, as appropriate) for all Indemnified Parties. Neither the Indemnitor nor the Indemnified Party for may settle or otherwise consent to the resolution of any such proceeding which settlement or resolution obligates the other party to pay money, to perform obligations or to admit or accept a finding of liability, wrongdoing or violation of law or the rights of any Person without the consent of the other party, such consent not to be unreasonably withheld (taking into account the impact of the settlement on ongoing business). In the event the Indemnified Party shall refuse to consent to the settlement of any such Third Party Claim effected without third Person claim, so long as only money damages that are payable in full by the prior written consent Indemnitor are involved and there is no admission of liability, wrongdoing or violation of law or the rights of any Person with respect to the Indemnified Party, the liability of the Indemnitor, which consent Indemnitor in respect of such third Person claim shall not be unreasonably withheld, conditioned or delayed. If any such action or exceed the amount for which the third Person claim is could have been settled with plus the amount of expenses incurred by the Indemnified Party prior written consent to the time of the Indemnitorproposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier’s check within 30 days after the Indemnifying Party in a reasonable manner at reasonable times regarding date of such notice. (c) To the status extent of any Third Party Claiminconsistency between this Section 11.5 and Section 8.1(c) (relating to Tax contests), including regarding strategy, bona fide settlement offers or mediations and material results the provisions of discovery and investigationSection 8.1(c) shall control with respect to Tax contests.

Third Person Claims. (ai) Promptly after any party hereto (herein the assertion by any third party ------------------- "Indemnified Party") has received notice of or has knowledge of any claim against by a person not a party to this Agreement ("Third Person"), or the commencement of any Indemnified Party action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Claim") thatthat could give rise to a right of indemnification under this Agreement, in the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled shall, as a condition precedent to a claim with respect thereto being made against any party obligated to provide indemnification pursuant to Section 11.1 or 11.2 hereof (herein the "Indemnifying Party"), give the 41 Indemnifying Party written notice of such Third Party Claim describing in reasonable detail the nature of such Third Party Claim, a copy of all papers served with respect to that Third Party Claim (if any), an estimate of the amount of damages attributable to the Third Party Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the Indemnified Party's request for indemnification under this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Notice; provided, however, that no delay on the part failure of the Indemnified Party in notifying the Indemnitor to give -------- ------- timely notice hereunder shall relieve the Indemnitor Indemnifying Party of any liability or its indemnification obligations hereunderunder this Agreement to the extent, except but only to the extent that, such failure materially prejudices the Indemnifying Party's ability to defend such claim. Within fifteen (15) days after receipt of such notice (the "Election Period"), the Indemnifying Party shall notify the Indemnified Party (a) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 11 with respect to that Third Party Claim and (b) if the Indemnifying Party does not dispute its potential liability to the Indemnified Party with respect to that Third Party Claim, whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against that Third Party Claim. (ii) If the Indemnifying Party does not dispute its potential liability to the Indemnified Party and notifies the Indemnified Party within the Election Period that the Indemnitor Indemnifying Party elects to assume the defense of the Third Party Claim through counsel of its own choosing which is consented to by the Indemnified Party (which consent shall not be unreasonably delayed or withheld), then the Indemnifying Party shall have the right to defend, at its sole cost and expense, that Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 11.3(ii) and the Indemnified Party will furnish the Indemnifying Party with all information in its possession with respect to that Third Party Claim and otherwise cooperate with the Indemnifying Party in the defense of that Third Party Claim; provided, however, that the Indemnifying -------- ------- Party shall not enter into any settlement with respect to any Third Party Claim that purports to limit the activities of, or otherwise restrict in any way, any Indemnified Party or any affiliate of any Indemnified Party without the prior consent of that Indemnified Party (which consent may be withheld in the sole discretion of that Indemnified Party). The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party, to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 11.3(ii) and will bear its own costs and expenses with respect to that participation; provided, however, -------- ------- that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been materially prejudiced therebyadvised by counsel 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 (the "Separate Defenses"), then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party, and, on its written notification of that employment, the Indemnifying Party shall not have the right to assume or continue the defense of such action on behalf of the Indemnified Party with respect to the Separate Defenses. (iii) If the Indemnifying Party (a) within the Election Period (1) disputes its potential liability to the Indemnified Party under this Section 11, (2) elects not to defend the Indemnified Party pursuant to Section 11.3(ii) or (3) fails to notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 11.3(ii) or (b) elects to defend the Indemnified Party pursuant to Section 11.3(ii) but fails diligently and promptly to prosecute or settle the Third Party Claim, then only to such extent. The the Indemnified Party shall have the right in its to defend, at the sole discretion to conduct cost and expense of the defense of any such Third Indemnifying Party Claim; provided, that (if the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such is entitled to indemnification hereunder), the Third Party Claim effected without by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the prior written Indemnified Party to a final conclusion or settled, but any settlement shall require the consent of the IndemnitorIndemnifying Party, which consent shall not be unreasonably delayed or withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with have full control of such defense and proceedings. Notwithstanding the foregoing, if the Indemnifying Party has delivered a written notice to the Indemnified Party to the effect that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 11 and if such dispute is resolved in a reasonable manner favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 11.3 or of the Indemnifying Party's participation therein at reasonable times regarding the status Indemnified Party's request. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.3(iii), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. (iv) The parties hereto will make appropriate adjustments for any Tax benefits, Tax detriments or insurance proceeds in determining the amount of any Third indemnification obligation under this Section 11, provided that an -------- Indemnifying Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results shall be obligated to seek any payment pursuant to the terms of discovery and investigationany insurance policy. All indemnification payments under this Section 11 shall be deemed adjustments to the consideration provided for herein.

Third Person Claims. (a) Promptly after the assertion If a claim by any a third party of any claim Person is made against any Indemnified Party (a "Third Party Claim") that, in the judgment of such an Indemnified Party, may result in the incurrence by and if such Indemnified Party of Losses for which such Indemnified Party would be entitled intends to indemnification pursuant to seek indemnity with respect thereto under this AgreementArticle 9, such Indemnified Party shall deliver promptly notify (i) Parent, in the case of indemnification sought by any Equityholder Indemnified Party, or (ii) the Representative, in the case of indemnification sought by any Parent Indemnified Party, in writing of such claims (a “Third Party Claim Notice”). The Third Party Claim Notice shall describe in reasonable detail the facts giving rise to the Indemnitor a claim for indemnification hereunder that is the subject of the Third Party Claim Notice, the amount and the method of computation of the amount of such claim, a reference to the provision of this Agreement upon which such claim is based and all material documentation relevant to the claim described in the Third Party Claim Notice (to the extent not previously provided under this Section 9.6). A Third Party Claim Notice shall be given promptly following the claimant’s determination that facts or events give rise to a claim for indemnification hereunder; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnitor failure to give such written notice shall not relieve the any Indemnitor of any liability or its obligations hereunder, except to the extent that it shall have been prejudiced by such failure or is delivered after the periods provided for in Section 9.1. (b) The Indemnitor has been materially prejudiced thereby(acting through Parent, in the case of indemnification sought by any Equityholder Indemnified Party, and then only to such extent. The acting through the Representative, in the case of indemnification sought by a Parent Indemnified Party Party) shall have the right in its sole discretion to conduct the defense 30 days after receipt of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without Notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the prior written consent of settlement or defense thereof, and the Indemnitor, which consent Indemnified Party shall not be unreasonably withheld, conditioned or delayedcooperate with it in connection therewith. If any such action or the Indemnitor elects to undertake the defense of a claim is settled with the prior written consent of the Indemnitor, or if there be by a final judgment for the plaintiff in any such actionthird Person, the Indemnified Party shall be entitled to indemnification participate with its own counsel at its own expense; provided that, if in the reasonable opinion of counsel for such Indemnified Party, there is a reasonable likelihood of a conflict of interest between the Indemnitor and the Indemnified Party concerning such claim by a third Person, then the reasonable cost of one counsel for the Indemnified Party shall be borne by the Indemnitor; provided, further, that the Indemnitor shall not be entitled to assume control of such defense of claim underlying any Third Party Claim Notice if (i) such claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) in the case of any Parent Indemnified Parties, such claim relates to any current, former or prospective customers or vendors, (iii) such claim seeks an injunction or equitable relief against the Indemnified Party, (iv) based on the advice of counsel, a conflict of interest exists between the Indemnitor and the Indemnified Party, (v) the amount of the claim exceeds the liability of the Indemnitor under this Article 9, (vi) (x) in the case of any Loss relating theretoParent Indemnified Parties, the assumption of the defense by the Indemnitor is reasonably likely to cause a Parent Indemnified Party to lose coverage under the R&W Insurance Policy or (y) a Parent Indemnified Party or the insurer is required to assume the defense of such third party claim pursuant to the R&W Insurance Policy or (vii) the insurer of the R&W Insurance Policy and the Parent have confirmed in writing that the applicable Losses will be fully covered other than by VPC Equityholders. The Indemnitor shall not, except with the written consent of the Indemnified Party, enter into any settlement or compromise any claim by a third Person that (i) does not include as a term thereof the giving by the Person or Persons asserting such claim to all Indemnified Parties of an unconditional release from all Liability (subject to the application of the Threshold) with respect to such claim or consent to entry of any judgment; or (ii) involves any material non-monetary relief or remedy. Any consent required by this Section 9.6(b) shall not be unreasonably delayed, withheld or conditioned. (c) If the Indemnitor does not notify the Indemnified Party in writing within 30 days after receipt of the Third Party Claim Notice that it elects to undertake the defense of the claim described therein, the Indemnified Party shall consult with have the Indemnifying right to undertake the defense or prosecution of such claim through counsel of its own choice, in which event it shall do so continuously, in good faith and using commercially reasonable efforts, it shall keep the Indemnitor reasonably informed of all material developments and it shall permit the Indemnitor, at its own cost and expense, to participate in all meetings and to review and comment on all pleadings and material correspondence related thereto, it being understood that the reasonable fees and expenses incurred by the Indemnified Party in connection with such defense or prosecution shall be considered Losses hereunder with respect to the subject matter of such claim, indemnifiable to the extent provided in Section 9.1 and Section 9.2; provided, however, the Indemnified Party shall not enter into any settlement or compromise any claim by a third Person, or consent to the entry of any judgment, without the prior written consent of the Indemnitor which shall not be unreasonably delayed, withheld or conditioned. (d) Each party hereto shall have full access to the employees, books and records of the other party for purposes of investigating the merits of any claim by a third person which is the subject of investigation. Each party hereto shall use its reasonable manner at reasonable times regarding best efforts to preserve the confidentiality and/or privileged status of all confidential and/or privileged information provided pursuant to such request. (e) Notwithstanding anything to the contrary contained in this Agreement, the procedures for all Tax Claim shall be governed exclusively by Section 10.9 (and not this Section 9.6). (f) Notwithstanding anything to the contrary in this Section 9.6, the control of the defense of any Third Party Claimthird-party claim for which the Parent Indemnified Parties may seek recovery under the R&W Insurance Policy shall be subject to the provisions thereof. (g) Notwithstanding anything to the contrary contained in this Agreement, including regarding strategywith respect to an audit or invalidation action by the NJDEP with respect to the PAR, bona fide settlement offers ▇▇▇ or mediations otherwise related to Holdco’s obligations under ISRA with respect to the transactions contemplated hereby, as contemplated by Section 9.2(a)(viii), Holdco shall have the right to elect to assume and material results control the defense of discovery and investigationany such audit or action.

Third Person Claims. (a) Promptly after the assertion by any third a party has received notice of or has actual knowledge of any claim against any Indemnified Party (it covered by Section 10 by a "Third Party Claimor the commencement of any action or proceeding by a Third Person with respect to any such claim, such party (sometimes referred to as the "Indemnitee") that, in shall give the judgment other party (sometimes referred to as the "Indemnitor") written notice of such Indemnified Party, may result in the incurrence by claim or commencement of such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Noticeaction or proceeding; provided, however, that no delay on the part of failure to give such notice will not affect the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability right to indemnification hereunder with respect to such claim, action or obligations hereunderproceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has been materially prejudiced therebynotified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the claim by the Third Person, and then only to such extent. The Indemnified Party the Indemnitor shall have the right in its sole discretion to conduct assume and control the defense of any the claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, provided that the assumption of such Third Party Claim; provided, that defense by the Indemnitor shall not be liable constitute an acknowledgment of the obligation to indemnify any Indemnified Party for any settlement the Indemnitee hereunder. The Indemnitee may participate in the defense, at its sole expense, of any such Third Party Claim effected without claim for which the prior written consent of Indemnitor shall have assumed the Indemnitordefense pursuant to the preceding sentence, which consent shall not be unreasonably withheldprovided, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitorhowever, or if there be a final judgment that counsel for the plaintiff Indemnitor shall act as lead counsel in any all matters pertaining to the defense or settlement of such actionclaims, suit or proceeding other than claims that in Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the Indemnified Party payment of money damages. The Indemnitee shall be entitled to indemnification for the amount reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any Loss relating theretoclaim. The Indemnified Party shall consult with Indemnitor may not settle any claim without obtaining a release for the Indemnifying Party in a reasonable manner at reasonable times regarding benefit of the status Indemnitee, unless the consent of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationthe Indemnitee is obtained.

Third Person Claims. (a) Promptly after the assertion In order for a Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the incurrence third Person claim promptly after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on within five (5) days after the part Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party in notifying relating to the third Person claim. Notwithstanding the foregoing, should a Person be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within five (5) days after receipt thereof and shall relieve deliver to the Indemnitor within five (5) days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in each case such earlier time as may be necessary to enable the Indemnitor to respond to the court proceedings on a timely basis). (b) In the event of any liability claim or obligations hereunder, except to initiation of any legal proceeding against the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be by a final judgment for the plaintiff in any such actionthird Person, the Indemnified Party shall permit the Indemnitor to assume the defense of such claim or legal proceeding, at its option and at its own expense, if the Indemnitor notifies the Indemnified Party of its election to assume such defense within thirty (30) calendar days after it receives notice of such claim and the Indemnitor acknowledges without qualification (other than by reference to the limitations in this Article 10) its indemnification obligations provided in this Article 10 with respect to such third Person claim or legal proceeding in writing to the Indemnified Party to control, defend against, negotiate and otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense unless the named parties in such third Person claim include both the Indemnitor and the Indemnified Party and the Indemnified Party has been advised by legal counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnitor (provided that in such situation, the Indemnified Party shall not be entitled to employ more than one law firm). The Party controlling the defense of such third Person claim (the “Controlling Party”) shall keep the non-Controlling Party advised of the status of such third Person claim and the defense thereof and shall consider in good faith the recommendations made by the non-Controlling Party with respect thereto. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. If the Indemnitor elects to assume control of the defense of a third Person claim, any fees and expenses of legal counsel employed by the Indemnified Party with respect to such third Person claim shall be considered Losses for which the Indemnified Party may be entitled to indemnification for under this Article 10 only if the amount of any Loss relating thereto. The named parties in such third Person claim include both the Indemnitor and the Indemnified Party or the Indemnified Party has been advised by legal counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnitor (provided that in such situation, the Indemnified Party shall consult not be entitled to employ more than one law firm). Neither the Indemnitor nor the Indemnified Party may settle or compromise any such third Person claim or legal proceeding, which settlement or compromise obligates the other Party to pay money, to perform obligations or to admit liability without the written consent of the other Party, such consent not to be unreasonably withheld or delayed; provided that the consent of the Indemnified Party shall not be required if the Indemnitor agrees in writing to pay any amounts payable pursuant to such settlement or compromise and such settlement or compromise includes a complete written release of the Indemnified Party from further liability and does not impose any injunctive relief or other operational restrictions on the Indemnified Party. (c) The parties agree to cooperate fully with each other in connection with the Indemnifying Party in a reasonable manner at reasonable times regarding the status defense, negotiation or settlement of any Third such legal proceeding, claim or demand. Such cooperation shall include the retention and the provision of records and information which is reasonably relevant to such third Person claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (d) After any final Court Order shall have been rendered and the time therefrom in which to appeal has expired, or a settlement shall have been consummated, or the Indemnified Party Claimand the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnifiable by the Indemnitor hereunder, including regarding strategythe Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer within five (5) Business Days after the date of such notice. (e) Sections 10.2 through 10.5 shall not apply to any Tax Claims, bona fide settlement offers or mediations and material results which shall instead be subject to the provisions of discovery and investigationSection 7.2.

Third Person Claims. (a) Promptly after the assertion If a claim by any a third party of any claim Person is made against any Indemnified Party (a "Third Party Claim") that, in the judgment of such an Indemnified Party, may result in the incurrence by and if such Indemnified Party of Losses for which such Indemnified Party would be entitled party intends to indemnification pursuant to seek indemnity with respect thereto under this AgreementArticle XII, such Indemnified Party shall deliver promptly notify Seller. Seller shall have 20 days after receipt of such notice to acknowledge and agree to fully and completely indemnify Purchaser, undertake, conduct and control, through counsel of its own choosing and at its own expense, the Indemnitor a Claim Notice; providedsettlement or defense thereof, that no delay on the part of and the Indemnified Party shall cooperate with it in notifying connection therewith at the Indemnitor shall relieve the Indemnitor cost of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party ClaimSeller; provided, that the Indemnitor Indemnified Party may participate in such settlement or defense through counsel chosen by such Indemnified Party and paid at its own expense. So long as Seller is reasonably contesting any such claim in good faith, the Indemnified Party shall not be liable to indemnify any Indemnified Party for any settlement of pay or settle any such Third Party Claim effected claim without the prior written consent of the IndemnitorSeller, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with Seller does not notify the prior written consent Indemnified Party in writing within 10 days after receipt of the Indemnitor, or if there be Indemnified Party’s written notice of a final judgment for claim of indemnity hereunder that it elects to undertake the plaintiff in any such actiondefense thereof, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of the claim and shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations fully and material results of discovery and investigationcompletely indemnified by Seller.

Third Person Claims. (a) Promptly after the assertion In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the incurrence third Person claim promptly after receipt by such Indemnified Party of Losses for which such written notice of the third Person claim; provided however, no delay by the Indemnified Party would be entitled to indemnification pursuant notify the Indemnitor shall relieve the Indemnitor from any liability or obligation hereunder unless (and then solely to this Agreementthe extent that) the Indemnitor can demonstrate that it was damaged by such delay). Thereafter, such the Indemnified Party shall deliver to the Indemnitor, promptly after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third Person claim. Notwithstanding the foregoing, should a Claim Noticeparty be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint promptly after receipt thereof and shall deliver to the Indemnitor promptly after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. (b) Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, 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. Subject to clause (c) below, in the event of the initiation of any legal proceeding, claim or demand against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice reasonably acceptable to the Indemnified Party and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that no delay on the part of the Indemnified Party may participate in notifying any such proceeding with counsel of its choice and at its expense unless the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion be a party to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action and shall have received a written opinion of counsel that there exists an actual conflict of interest between the Indemnified Party and the Indemnitor with respect to the proceeding, claim or claim is settled with the prior written consent of the Indemnitordemand, or if there be a final judgment for the plaintiff in any such action, which case the Indemnified Party shall be entitled to participate in the defense of such proceeding, claim or demand with the Indemnitor paying for 50% of such expenses. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend or abandons such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense and settlement of such proceeding. Neither the Indemnitor nor the Indemnified Party may consent to entry of any judgment or settle any such proceeding which judgment or settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. In the event the Indemnified Party shall refuse to consent to the settlement of any legal proceeding, claim or demand, so long as only money damages are involved, the liability of the Indemnitor for indemnification in respect of such legal proceeding, claim or demand shall not exceed the amount for which the legal proceeding, claim or demand could have been settled plus the amount of Expense incurred by the Indemnified Party prior to the time of the proposed settlement to which it is entitled to indemnification. After any Loss relating thereto. The final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall consult forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnifying Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier's check within 30 days after the date of such notice. (c) If any third Person claim, action or suit against any Indemnified Party is solely for injunctive relief or is reasonably likely to have a material adverse impact on the continuing operation of the Business (and, in each case, Buyer is the Indemnified Party), then the Indemnified Party shall have the right to conduct and control, through counsel of its choosing and at the Indemnitor's expense, the defense, compromise or settlement of any such third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in a reasonable manner connection therewith; provided, that the Indemnitor may participate, through counsel chosen by it and at reasonable times regarding its own expense, in the status defense of any Third such claim, action or suit as to which the Indemnified Party Claimhas so elected to conduct and control the defense thereof; and provided, including regarding strategyfurther, bona fide settlement offers that the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or mediations settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within 14 days after the making of such request, to acknowledge and material results agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnitor has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder. (d) Notwithstanding anything contained herein to the contrary, Sellers shall have the exclusive right to assume the defense of, or otherwise contest or settle any claim, action, suit or proceeding described in Schedule 5.22 (which is an Excluded Liability). Buyer agrees to cooperate and assist Sellers with all reasonable requests (including, without limitation, making employees available for interviews, depositions and trials) and to afford Sellers access to any records, reports or other documents reasonably requested by Sellers in connection with such claims, actions, suits or proceedings. (e) If there shall be any conflict between the provisions of discovery this Section 11.4 relating to contests of third-party claims, and investigationSection 8.2.3 relating to Tax contests, the provisions of Section 8.2.3 shall control with respect to Tax contests.

Third Person Claims. (a) Promptly after the assertion receipt by any third party of any claim against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence by such an Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementnotice of the assertion of a Third Person Claim against it, such Indemnified Party shall deliver give notice to the Indemnitor a Claim Noticeof the assertion of such Third Person Claim; provided, however, that no delay on the part of the Indemnified Party in notifying failure to notify the Indemnitor shall will not relieve the Indemnitor of any liability that it may have to any Indemnified Party. (b) If an Indemnified Party gives notice to the Indemnitor pursuant to this Section of the assertion of a Third Person Claim, the Indemnitor shall be entitled to participate in the defense of such Third Person Claim and, to the extent that it wishes (unless (i) the Indemnitor is also a Person against whom the Third Person Claim is made and the Indemnified Party determines in good faith that joint representation would be inappropriate or obligations hereunder(ii) the Indemnitor fails to provide reasonable assurance to the Indemnified Party of its commitment and financial capacity to defend such Third Person Claim and provide indemnification with respect to such Third Person Claim), to assume the defense of such Third Person Claim with counsel satisfactory to the Indemnified Party (except to the extent that the Indemnified Party has other issues involved in the same dispute or to the extent resolution of the Third Person Claim could affect liability of the Indemnified Party in other periods or in respect of other issues). After notice from the Indemnitor has been materially prejudiced therebyto the Indemnified Party of its election to assume the defense of such Third Person Claim, and then only conditioned upon continuing satisfaction of conditions (i) and (ii) of this Section, the Indemnitor shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Section for any fees of other counsel or any other expenses with respect to the defense of such extentThird Person Claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of such Third Person Claim. The No compromise or settlement of such Third Person Claims may be effected by the Indemnitor without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of Requirement of Law or any violation of the rights of any Person; (B) the sole relief provided is monetary damages that are paid in full by the Indemnitor; (C) the settlement could not give rise to any other liability of the Indemnified Party; and (D) the Indemnified Party shall have no liability or be subject to any compromise or restriction with respect to any such compromise or settlement. If notice is given to an Indemnitor of the right in assertion of any Third Person Claim and the Indemnitor does not, within ten (10) Business Days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its sole discretion election to conduct assume the defense of any such Third Party Person Claim; provided, that the Indemnitor shall not will be liable bound by any determination made in such Third Person Claim or any compromise or settlement effected by the Indemnified Party. (c) Notwithstanding the provisions of Section 13.6 hereof, each Seller hereby consents to indemnify the nonexclusive jurisdiction of any court in which a proceeding in respect of a Third Person Claim is brought against any Buyer Group Member for purposes of any claim that any Buyer Group Member may have under this Agreement with respect to such proceeding or the matters alleged therein and agree that process may be served on any Seller with respect to such a claim anywhere in the world. (d) With respect to any Third Person Claim subject to indemnification under this Section: (i) both the Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of and the Indemnitor, which consent as the case may be, shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with keep the prior written consent other Person fully informed of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of such Third Person Claim and any related suit, claim, proceeding, demand, order, investigation or request or demand for information at all stages thereof where such Person is not represented by its own counsel; and (ii) the parties agree to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Person Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification pursuant to this Article IX in respect of, arising out of or involving any claim or demand made by any third party of any claim Person against any the Indemnified Party either at law or in equity (a "Third Party Claim"an “Action”) that, shall notify the Indemnitor in the judgment writing and in reasonable detail of such Indemnified PartyAction, may result in the incurrence including any pending or threatened Action, as promptly as practicable after receipt by such Indemnified Party of Losses for which written notice of such third Person’s Action in the case of an Action, or as promptly as practicable after the Indemnified Party has reasonably determined that the pending or threatened Action has given or would reasonably be entitled expected to give rise to a right of indemnification pursuant to this Agreementhereunder in the case of any pending or threatened Action. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, as promptly as practicable, copies of all notices and Documents (including court papers) received by the Indemnified Party relating to the third Person Action. The failure to give notice as provided in this Section 9.6(a) shall not relieve the Indemnitor of its obligations hereunder (or limit such obligations) except to the extent it shall have been actually and materially prejudiced by such failure. (b) In the event any Action shall be commenced by any Person against any party in respect of which indemnification may be sought by such party from the other party under the provisions of this Article IX, the Indemnified Party shall promptly cause written notice of the institution of any such Action of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor in accordance with Section 9.6(a). In the event of the initiation of any Action against the Indemnified Party by a third Person with respect to which the Indemnified Party shall seek indemnification from the Indemnitor hereunder, the Indemnitor shall have ten (10) days from its receipt of the Claim NoticeNotice to notify the Indemnified Party whether or not the Indemnitor desires (or sooner, if the nature of the Action so requires), at the Indemnitor’s sole cost and expense and by counsel of its own choosing, which must be reasonably satisfactory to the Indemnified Party, to control or defend against such Action, and the Indemnitor must conducts its defense of the Action actively and diligently thereafter in order to preserve its rights in this regard; provided, however, that no delay on the part Indemnified Party may participate in any such Action with counsel of its choice and at its expense; provided, further, however, that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the expense of the Indemnitor if so requested by the Indemnitor to participate or in the reasonable opinion of counsel to the Indemnified Party a conflict or potential conflict exists between the Indemnified Party and the Indemnitor that would make such separate representation advisable; and provided, further, that the Indemnifying Party shall not be required to pay for more than one (1) such counsel (plus any appropriate local counsel) for all Indemnified Parties in connection with any Action. (c) The Indemnitor shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) such Action is reasonably foreseeable to result in Losses which are more than two-hundred percent (200%) of the amount indemnifiable by such Indemnitor pursuant to this Article IX; (ii) such Action for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (iii) such Action seeks an injunction or equitable relief against the Indemnified Party; (iv) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnified Party; or (v) upon petition by the Indemnified Party, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such Action. The parties agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Action. If the Indemnitor undertakes to defend against such Action, the Indemnitor shall not settle such Action without the written consent of the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except (not to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement involves solely the payment of money for which the Indemnified Party will be fully indemnified pursuant to this Article IX (subject to the De Minimis Amount and the Deductible) and includes an unqualified release of the applicable Indemnified Parties from all liability in respect of any Action. If the Indemnitor does not timely undertake to defend against such Action, or otherwise abandons the defense of such Action, then the Indemnified Party may, without prejudice to any of its rights to indemnification hereunder, defend such action or claim is settled with Action and the prior written consent of Losses incurred by the Indemnified Party in connection therewith shall be borne by the Indemnitor, or if there be a final judgment for . Notwithstanding the plaintiff in any such actionforegoing, the Indemnified Party shall have the right to pay or settle any such Action; provided, that in such event it shall waive any right to indemnity therefor by the Indemnitor for such Action unless the Indemnitor shall have consented to such payment or settlement. (d) After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to any matter alleged to be entitled to indemnification for indemnified by the Indemnitor hereunder, the Indemnitor shall promptly pay the amount of any Loss relating thereto. The owed to the Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationrespect thereof.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "“Third Party Person Claim"”) thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence Third Person Claim within a reasonable period after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the Third Person Claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within a reasonable period after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the Third Person Claim. Notwithstanding the foregoing, should a Claim Notice; providedparty be physically served with a complaint with regard to a Third Person Claim, that no delay on the part of the Indemnified Party in notifying shall notify the Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor within seven (7) business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of any liability or its obligations hereunder, hereunder except to the extent it shall have been prejudiced by such failure. (b) If any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and describe in reasonable detail the facts giving rise to an alleged basis for the claim and, if known and reasonably assessable, the amount of the liability asserted against the Indemnitor by reason of the claim. In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any Loss indemnified against hereunder; provided, however, that notwithstanding any such election by the Indemnitor, the Indemnified Party may participate in any such proceeding at any time, and may employ separate counsel of its choice and at its expense, except that the Indemnitor has been materially prejudiced therebyshall bear the reasonable fees, costs and expenses of any such separate counsel if (i) joint defense would involve a conflict of interest under applicable professional standards or (ii) the Indemnitor shall have authorized in writing the Indemnified Party to employ separate counsel at the Indemnitor’s expense. Each of the parties hereto agrees to cooperate fully with the other party in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand and to make available to the other party all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is reasonably required by the other party. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and then only to such extent. The the Indemnified Party shall have defends against or otherwise deals with any such proceeding, claim or demand, the right in its sole discretion to conduct Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of any such Third Party Claimproceeding; provided, however, that the Indemnitor shall not be liable obligated pursuant to indemnify any this Section 11.5 to pay for only one firm of counsel for all Indemnified Parties. Neither the Indemnitor nor the Indemnified Party for any settlement of may settle any such Third Party Claim effected proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the prior written consent of the Indemnitorother party, which such consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnified Party shall refuse to consent to the settlement of any Third Person Claim, so long as only money damages are involved and there is a full release of liability or wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such action or claim is Third Person Claim shall not exceed the amount for which the Third Person Claim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with the prior written consent proposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the Indemnitortime in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier’s check within 30 days after the Indemnifying Party in a reasonable manner at reasonable times regarding date of such notice. (c) To the status extent of any Third Party Claiminconsistency between this Section 11.5 and Section 8.1(c) (relating to Tax contests), including regarding strategy, bona fide settlement offers or mediations and material results the provisions of discovery and investigationSection 8.1(c) shall control with respect to Tax contests.

Third Person Claims. (a) Promptly after the assertion Any party seeking ------------------- indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within 10 days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on the part of within five business days after the Indemnified Party in notifying Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not ------------ relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) In the event any legal proceeding shall be entitled threatened in writing or instituted or any claim or demand shall be asserted in writing by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article ------- XI, the Indemnified Party shall promptly cause written notice of the -- assertion of any such claim of which it has knowledge which is covered by this indemnity to indemnification be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, 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. In the event of the initiation of any Loss relating theretolegal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice (reasonably acceptable to the Indemnified Party) and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the -------- ------- Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall consult with forward to the Indemnifying Party in a reasonable manner at reasonable times regarding the status Indemnitor notice of any Third sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party Claimby wire transfer, including regarding strategycertified or bank cashier's check within 30 days after the date of such notice. (c) Notwithstanding anything contained herein to the contrary, bona fide settlement offers Sellers shall have the exclusive right to assume the defense of, or mediations otherwise contest or settle any claim, action, suit, investigation or proceeding which is an Excluded Liability. Buyer agrees to cooperate and material results assist Sellers with all reasonable requests (including, without limitation, making employees available for interviews, depositions and trials) and to afford Sellers access to any records, reports or other documents reasonably requested by Sellers in connection with such claims, actions, suits or proceedings. (d) To the extent of discovery any inconsistency between this Section ------- 11.5 and investigation.Section 8.2(c) (relating to Tax contests), the provisions of ---- ------------- Section

Third Person Claims. (a) Promptly after the assertion by any third party an Indemnitee has received notice ------------------- of or has knowledge of any claim against any Indemnified Party by a person not a party to this Agreement (a "Third Party ClaimPerson") thator the commencement of any action or proceeding by a Third ------------ Person, in the judgment Indemnitee shall, as a condition precedent to a claim with respect thereto being made against the Escrow Agreement, give the Stockholders' Representative written notice of such Indemnified Party, may result in claim or the incurrence by commencement of such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Noticeaction or proceeding; provided, however, that no delay on the part of failure to give such notice will not effect the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability Indemnities' right to indemnification hereunder with respect to such claim, action or obligations hereunderproceeding, except to the extent that the Indemnitor has Stockholders' Representative has, or the stockholders have, been materially actually prejudiced therebyas a result of such failure. If the Stockholder Representative -42- notifies the Indemnitee within 30 days from the receipt of the foregoing notice that he wishes to defend against the claim by the Third Person and if the estimated amount of the claim, and together with all other claims made against the Escrow Funds that have not been settled, is less than the remaining balance of the Escrow Funds, then only to such extent. The Indemnified Party the Stockholder Representative shall have the right to assume and control the defense of the claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the Stockholder Representative shall be entitled to reimbursement out of the Escrow Funds for such defense. The Indemnitee may participate in the defense, at its sole discretion expense of any such claim for which the Stockholder Representative shall have assumed the defense pursuant to conduct the preceding sentence, provided that counsel for the Stockholder Representative shall act as lead counsel in all matters pertaining to the defense or settlement of such claims, suit or proceedings; provided, however, that Indemnitee shall control the defense of any such Third Party Claim; provided, claim or proceeding that in Indemnitee's reasonable judgment could have a material and adverse effect on Indemnitee's business apart from the Indemnitor payment of money damages. The Indemnitee shall not be liable entitled to indemnify any Indemnified Party indemnification for the reasonable fees and expenses of its counsel for any settlement period during which the Stockholder Representative shall have assumed the defense of any claim, neither the Indemnitee nor the Stockholder Representative shall make any settlement with respect to any such Third Party Claim effected claim, suit or proceeding without the prior written consent of the Indemnitorother, which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any such action or It is understood and agreed that in situations where failure to settle a claim is settled with expeditiously could have an adverse effect on the prior written consent party wishing to settle, the failure of the Indemnitor, or if there be party controlling the defense to act upon a final judgment request for the plaintiff in any consent to such action, the Indemnified Party settlement within five business days of receipt of notice thereof shall be entitled deemed to indemnification constitute consent to such settlement for the amount purposes of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation.this Section 8.1

Third Person Claims. (ai) Promptly after any party hereto (herein the assertion by any third party ------------------- "Indemnified Party") has received notice of or has knowledge of any claim against by a person not a party to this Agreement ("Third Person"), or the commencement of any Indemnified Party action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Claim") that could give rise to a right of indemnification under this Agreement, the Indemnified Party shall, as a condition precedent to a claim with respect thereto being made against any party obligated to provide indemnification pursuant to Section 11.1 or 11.2 hereof (herein the "Indemnifying Party"), give the Indemnifying Party written notice of such Third Party Claim describing in reasonable detail the nature of such Third Party Claim, a copy of all papers served with respect to that Third Party Claim (if any), an estimate of the amount of damages attributable to the Third Party Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the Indemnified Party's request for indemnification under this Agreement; provided, however, that the failure of -------- ------- the Indemnified Party to give timely notice hereunder shall relieve the Indemnifying Party of its indemnification obligations under this Agreement to the extent, but only to the extent that, in such failure materially prejudices the judgment Indemnifying Party's ability to defend such claim. Within fifteen (15) days after receipt of such notice (the "Election Period"), the Indemnifying Party shall notify the Indemnified Party (a) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 11 with respect to that Third Party Claim and (b) if the Indemnifying Party does not dispute its potential liability to the Indemnified Party with respect to that Third Party Claim, whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against that Third Party Claim. (ii) If the Indemnifying Party does not dispute its potential liability to the Indemnified Party and notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Third Party Claim through counsel of its own choosing which is acceptable to the Indemnified Party, may result then the Indemnifying Party shall have the right to defend, at its sole cost and expense, that Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 11.3(ii) and the Indemnified Party will furnish the Indemnifying Party with all information in its possession with respect to that Third Party Claim and otherwise cooperate with the Indemnifying Party in the incurrence by such defense of that Third Party Claim; provided, however, -------- ------- that the Indemnifying Party shall not enter into any settlement with respect to any Third Party Claim that purports to limit the activities of, or otherwise restrict in any way, any Indemnified Party or any affiliate of Losses for which such any Indemnified Party would without the prior consent of that Indemnified Party (which consent may be withheld in the sole discretion of that Indemnified Party). The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party, to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 11.3(ii) and will bear its own costs and expenses with respect to that participation; provided, however, that if the named parties to any such action -------- ------- (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel 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, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party, and, on its written notification of that employment, the Indemnifying Party shall not have the right to assume or continue the defense of such action on behalf of the Indemnified Party. (iii) If the Indemnifying Party (a) within the Election Period (1) disputes its potential liability to the Indemnified Party under this Section 11, (2) elects not to defend the Indemnified Party pursuant to Section 11.3(ii) or (3) fails to notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 11.3(ii) or (b) elects to defend the Indemnified Party pursuant to Section 11.3(ii) but fails diligently and promptly to prosecute or settle the Third Party Claim, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification pursuant to this Agreementhereunder), such Indemnified the Third Party Claim by all appropriate proceedings, which proceedings shall deliver to the Indemnitor a Claim Notice; provided, that no delay on the part of be promptly and vigorously prosecuted by the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability to a final conclusion or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extentsettled. The Indemnified Party shall have full control of such defense and proceedings. Notwithstanding the right in its sole discretion foregoing, if the Indemnifying Party has delivered a written notice to conduct the defense of any such Third Indemnified Party Claim; provided, to the effect that the Indemnitor Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 11 and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be liable required to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without bear the prior written consent costs and expenses of the Indemnitor, which consent shall not be unreasonably withheld, conditioned Indemnified Party's defense pursuant to this Section 11.3 or delayed. If any such action or claim is settled with the prior written consent of the IndemnitorIndemnifying Party's participation therein at the Indemnified Party's request. The Indemnifying Party may participate in, but not control, any defense or if there be a final judgment for the plaintiff in any such action, settlement controlled by the Indemnified Party pursuant to this Section 11.3(iii), and the Indemnifying Party shall be entitled bear its own costs and expenses with respect to indemnification such participation. (iv) The parties hereto will make appropriate adjustments for any Tax benefits, Tax detriments or insurance proceeds in determining the amount of any Loss relating thereto. The Indemnified indemnification obligation under this Section 11, provided that no -------- Indemnifying Party shall consult with be obligated to seek any payment pursuant to the Indemnifying Party in a reasonable manner at reasonable times regarding the status terms of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationinsurance policy. All indemnification payments under this Section 11 shall be deemed adjustments to the Merger consideration provided for herein.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within ten (a "Third Party Claim"10) that, in the judgment of such Indemnified Party, may result in the incurrence business days after receipt by such Indemnified Party of Losses for written notice of the third Person claim (and the Indemnified Party’s being aware of the likelihood of an indemnification claim hereunder). The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. (b) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which such Indemnified Party would payment is reasonably expected to be entitled to indemnification pursuant to sought by one party hereto from the other party under the provisions of this AgreementARTICLE XI, such the Indemnified Party shall deliver promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, 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. In the event of the initiation of any legal proceeding against the Indemnified Party by a Claim Noticethird Person in respect of which payment is reasonably expected to be sought by one party hereto from the other party under the provisions of this ARTICLE XI, the Indemnitor shall have 30 days from receipt of notice pursuant to Section 11.5(a) to give notice to assume the defense thereof; provided, that no delay as a condition to the assumption, the Indemnitor must acknowledge in writing its obligations to indemnify the Indemnified Party in the event that such third Person claim is adversely determined and provide evidence reasonably satisfactory to the Indemnified Party that the Indemnitor has sufficient resources to satisfy its indemnification obligation (which evidence may consist solely of the most recent financial statements of Seller Parent available on the part SEC website). If notice to the effect set forth in the immediately preceding sentence is given by the Indemnitor, the Indemnitor shall have the right to assume the defense of the Indemnified Party against the third Person claim with counsel of its choice and, subject to the terms of this Section 11.5(b), to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in notifying any such proceeding with counsel of its choice and at its expense, except if the Indemnified Party concludes based on the advice of outside counsel that a conflict of interest exists between the Indemnitor and the Indemnified Party because the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with or additional to one or more of those that may be available to the Indemnitor in respect of such third Person claim, in which case the Indemnitor shall relieve be liable for the fees and expenses of one firm of counsel for the Indemnified Party. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand and to make available to the other party all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is reasonably required by the other party. To the extent the Indemnitor (A) elects not to defend such proceeding, claim or demand (including by failure to deliver the acknowledgement of any liability its obligation to indemnify the Indemnified Party in the event that such third Person claim is adversely determined or obligations hereunder, except to provide evidence reasonably satisfactory to the extent Indemnified Party that the Indemnitor has been materially prejudiced therebysufficient resources to satisfy its indemnification obligation (which evidence may consist solely of the most recent financial statements of Seller Parent available on the SEC website)) or (B) fails to contest in good faith the third Person claim and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and then control the defense of such proceeding. Notwithstanding anything to the contrary in this Section 11.5, the Indemnified Party (and not the Indemnitor) shall have the exclusive right to assume the defense and control of any third Person claim if (i) the Indemnified Party in good faith determines that the nature of the third Person claim is such that it would reasonably be expected to involve criminal liability being imposed on any Indemnified Party or its Affiliates (but not the Indemnitor or any of its Affiliates), (ii) such claim seeks as the sole remedy an injunction or other equitable relief against any Indemnified Party or (iii) if it is reasonably likely that the Losses and Expenses arising from such claim (if determined in any manner) will exceed an amount equal to two times the amount the Indemnified Party will be entitled to recover from the Indemnitor as a result of the limitations set forth in this ARTICLE XI. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations, to agree to any restrictions on its business or operations that would reasonably be expected to result in material harm to the affected Person or to admit liability without the consent of the other party. If the Indemnified Party shall refuse to consent to the settlement of any third Person claim, so long as only money damages payable by the Indemnitor are involved and there is no admission of liability or wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such third Person claim shall not exceed the amount for which the third Person claim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with the proposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by it with respect to such extent. The matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within thirty (30) days after the date of such notice. Notwithstanding anything in this Section 11.5(b) to the contrary, Seller Parent shall have the right in its sole discretion to conduct control and defend any Specified Litigation and to settle such Specified Litigation without the defense consent of any Buyer if such Third Party Claim; provided, that settlement is solely for monetary damages. In the Indemnitor shall not be liable to indemnify any Indemnified Party for any event a settlement of a Specified Litigation involves relief other than monetary damages, including any such Third Party Claim effected without injunctive or equitable relief or any other non-monetary liability or obligation upon the prior written consent of the IndemnitorBusiness or Buyer or its Affiliates, which Buyer’s consent shall be required, such consent not to be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with delayed (taking into account the prior written consent ongoing operations of the Indemnitor, or if there be a final judgment for Business as it then exists). (c) To the plaintiff in extent of any such actioninconsistency between this Section 11.5 and Section 8.2(c) (relating to Tax contests), the Indemnified Party provisions of Section 8.2(c) shall be entitled control with respect to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationTax contests.

Third Person Claims. (a) Promptly after the assertion If a claim by any a third party of any claim Person is made against any Indemnified Party (a "Third Party Claim") that, in the judgment of such an Indemnified Party, may result in the incurrence by and if such Indemnified Party of Losses for which such Indemnified Party would be entitled intends to indemnification pursuant to seek indemnity with respect thereto under this AgreementArticle 7, then such Indemnified Party shall deliver promptly notify (i) Parent, in the case of indemnification sought by any Equityholder Indemnified Party, or (ii) the Representative, in the case of indemnification sought by any Parent Indemnified Party, in writing of such claims (a “Third Party Claim Notice”). The Third Party Claim Notice shall describe in reasonable detail the facts giving rise to the Indemnitor a claim for indemnification hereunder that is the subject of the Third Party Claim Notice, the amount and the method of computation of the amount of such claim, a reference to the provision of this Agreement upon which such claim is based and all material documentation relevant to the claim described in the Third Party Claim Notice (to the extent not previously provided under this Section 7.7). A Third Party Claim Notice shall be given promptly following the claimant’s determination that facts or events give rise to a claim for indemnification hereunder; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnitor failure to give such written notice shall not relieve the any Indemnitor of any liability or its obligations hereunder, except to the extent that the Indemnitor has it shall have been materially prejudiced therebyby such failure or is delivered after the periods provided for in Section 7.1. (b) The Indemnitor (acting through Parent, in the case of indemnification sought by any Equityholder Indemnified Party, and then only to such extent. The acting through the Representative, in the case of indemnification sought by a Parent Indemnified Party Party) shall have the right in its sole discretion to conduct the defense 30 days after receipt of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without Notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the prior written consent of settlement or defense thereof, and the Indemnitor, which consent Indemnified Party shall not be unreasonably withheld, conditioned or delayedcooperate with it in connection therewith. If any such action or the Indemnitor elects to undertake the defense of a claim is settled with the prior written consent of the Indemnitor, or if there be by a final judgment for the plaintiff in any such actionthird Person, the Indemnified Party shall be entitled to indemnification participate with its own counsel at its own expense; provided that, if in the reasonable opinion of counsel for such Indemnified Party, there is a reasonable likelihood of a conflict of interest between the Indemnitor and the Indemnified Party concerning such claim by a third Person, then the reasonable cost of one counsel for the amount of any Loss relating thereto. The Indemnified Party shall consult be borne by the Indemnitor. Notwithstanding the foregoing, the Indemnitor shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim by a third Person (i) relating to or arising primarily in connection with any criminal or quasi-criminal Action, (ii) that primarily involves any customer or supplier of the Surviving Corporation and the other Acquired Entities, or (iii) relating to the Outstanding Litigation Matter. The Indemnitor shall not, except with the Indemnifying written consent of the Indemnified Party, enter into any settlement or compromise any claim by a third Person that (A) does not include as a term thereof the giving by the Person or Persons asserting such claim, on behalf of such Persons and their respective Affiliates, to all Indemnified Parties of a full and unconditional release of all such Indemnified Parties from all Liability (subject to the application of the Threshold) with respect to such claim or consent to entry of any judgment; (B) involves any finding or admission of any violation of Regulations; or (C) involves any non-monetary relief or remedy. Any consent required by this Section 7.7(c) shall not be unreasonably delayed, withheld or conditioned. (c) If the Indemnitor does not notify the Indemnified Party in writing within 30 days after receipt of the Third Party Claim Notice that it elects to undertake the defense of the claim described therein, then the Indemnified Party shall have the right to undertake the defense or prosecution of such claim through counsel of its own choice, in which event it shall do so in good faith and using commercially reasonable efforts, it shall keep the Indemnitor reasonably informed of all material developments and it shall permit the Indemnitor, at its own cost and expense, to participate in all meetings and to review and comment on all pleadings and material correspondence related thereto, it being understood that the reasonable fees and expenses incurred by the Indemnified Party in connection with such defense or prosecution shall be considered Losses hereunder with respect to the subject matter of such claim, indemnifiable to the extent provided in Section 7.1 and Section 7.2. (d) Each party hereto shall have full access to the employees, books and records of the other party for purposes of investigating the merits of any claim by a third person which is the subject of investigation. Each party hereto shall use its reasonable manner at reasonable times regarding best efforts to preserve the confidentiality and/or privileged status of all confidential and/or privileged information provided pursuant to such request. Notwithstanding the foregoing, no party hereto shall have the right of access to information of any Third Party Claimother party hereto relating to any information the disclosure of which would, including regarding strategyin the opinion of counsel, bona fide settlement offers jeopardize any legal privilege or mediations and material results work-product privilege available to such other party or any of discovery and investigationits Affiliates relating to such information.

Third Person Claims. (a) Promptly after the assertion As to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result such Indemnified Party will notify the Indemnitor in writing, and in reasonable detail, of the incurrence third Person claim within ten (10) days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on within five (5) business days after the part Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor within seven (7) business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. If such notice is not given within such (5) business day period, the Indemnitor shall still be entitled required to indemnification provide indemnity and defense unless the Indemnitor has in fact been prejudiced in its defense by such tardy notice. (b) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from another party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, 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. In the event of the initiation of any Loss relating thereto. The legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the right after the receipt of notice, at its option and at its own expense, to be represented by counsel satisfactory to the Indemnified Party and to participate in any proceeding, claim or demand which relates to any loss, liability or damage indemnified against hereunder, provided, however, that the Indemnified Party shall consult retain control of the proceeding. The parties hereto agree to cooperate fully with each other in connection with the Indemnifying Party in a reasonable manner at reasonable times regarding the status defense, negotiation or settlement of any Third such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party Claimdefends against or otherwise deals with any such proceeding, including regarding strategyclaim or demand, bona fide the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement offers obligates the other party to pay money, to perform obligations or mediations to admit liability without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and material results the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of discovery any sums due and investigationowing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within 30 days after the date of such notice.

Third Person Claims. (ai) Promptly after the assertion by any third party of any claim against any An Indemnified Party (must notify the Indemnitor in writing, and in reasonable detail, of a "Third third Person claim for which the Indemnified Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence is seeking indemnification hereunder promptly after receipt by such Indemnified Party of Losses for which written notice of the third Person claim provided, however, that the failure of any Indemnified Party to give such notice as required by this Section 7.1(e) shall not affect such Indemnified Party would be entitled Party’s rights under this Article 7, except the extent such failure is actually prejudicial to indemnification pursuant to this Agreementthe rights and obligations of the Indemnitor. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within five (5) calendar days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a Claim Noticecopy of the complaint within five (5) calendar days after receipt thereof and shall deliver to the Indemnitor within five (5) calendar days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in each case such earlier time as may be necessary to enable the Indemnitor to respond to the court Proceedings on a timely basis); provided, however, that no delay on the part failure of the any Indemnified Party in notifying the Indemnitor to give such notice promptly as required by this Section 7.1(e) shall relieve the Indemnitor of any liability or obligations hereundernot affect such Indemnified Party’s rights under this Article 7, except to the extent that such failure is actually prejudicial to the rights and obligations of the Indemnitor. (ii) In the event of the initiation of any legal Proceeding against the Indemnified Party by a third Person, the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice that Indemnitor selects using the same standard of care and processes that it uses for selecting counsel in any other similar matters and to control, defend against, negotiate, settle or otherwise deal with any Proceeding which relates to any Indemnifiable Damages; provided, however, that the Indemnified Party may participate in any such Proceeding with counsel of its sole discretion choice and at its expense. If the Indemnitor elects to conduct assume control of the defense of a third Person claim, and diligently pursues such defense, any fees and expenses of legal counsel employed by the Indemnified Party with respect to such Third third Person claim shall be considered Indemnifiable Damages for which the Indemnified Party Claim; provided, that may be entitled to indemnification under this Article 7 only if the named parties in such third Person claim include both the Indemnitor and the Indemnified Party and the Indemnified Party has determined in good faith upon written advice of counsel that a conflict of interest exists, in which case the fees and expenses of its counsel, together with appropriate local counsel, shall be paid by the Indemnitor (provided that in such situation, all of the Indemnified Parties shall not be liable entitled to indemnify any Indemnified Party for any employ more than one law firm, other than appropriate local counsel, each at Indemnitor’s expense). The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Third legal Proceeding. Such cooperation shall include the retention and the provision of records and information which is reasonably relevant to such third Person claim, and making employees available in a mutually convenient basis to provide additional information and explanation of any material provided hereunder. To the extent the Indemnitor elects not to defend such Proceeding, or does not notify the Indemnified Party Claim effected without in writing of its election to assume the prior written consent defense thereof, and the Indemnified Party defends against or otherwise deals with any such Proceeding, the Indemnified Party may retain counsel, at the expense of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any and control the defense of such action or claim is settled with the prior written consent Proceeding until and unless Indemnitor subsequently gives notice of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, its election to defend; provided that the Indemnified Party shall be entitled to indemnification for counsel fees and expenses incurred during the amount initial twenty (20) days after notice of such Proceeding is given to the Indemnitor only to the extent that the Indemnified Party in good faith believed that incurrence of such fees and expenses was necessary. Neither the Indemnitor nor the Indemnified Party may settle any Loss relating thereto. The such Proceeding, which settlement obligates the other party to pay money, to perform obligations or to admit liability without the written consent of the other party, such consent not to be unreasonably withheld or delayed; provided that the consent of the Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status not be required if (i) there is no finding or admission of any Third violation of any Requirements of Law or any violation of the rights of any Person; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnitor; and (iii) the Indemnified Party Claimshall have no liability with respect to any compromise or settlement effected without its consent. After any final judgment or award shall have been rendered by a court, including regarding strategyarbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, bona fide or a settlement offers shall have been consummated, or mediations the Indemnified Party and material results the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnifiable by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of discovery any sums due and investigationowing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer within five (5) Business Days after the date of such notice.

Third Person Claims. (a) Promptly after the assertion In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the incurrence third Person claim promptly after receipt by such Indemnified Party of Losses for which such written notice of the third Person claim. Thereafter, the Indemnified Party would be entitled shall promptly deliver to indemnification pursuant to this Agreement, such the Indemnitor copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor a Claim Notice; provided, that no delay on within seven (7) business days after the part receipt of such complaint copies of notices and documents (including court papers) physically served upon the Indemnified Party in notifying relating to the Indemnitor shall relieve the Indemnitor third Person claim. The failure of any liability Indemnified Party to give the Claim Notice promptly (or obligations hereunder, in five (5) business days in the case of service of a complaint upon the Indemnified Party) as required by this Section 10.4 shall not affect such Indemnified Party’s rights under this Article X except to the extent that such failure is actually prejudicial to the rights and obligations of the Indemnitor. (b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the sole and absolute right in after the receipt of notice, at its sole discretion option and at its own expense, to conduct the defense be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any such Third Party Claimproceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnitor shall not be liable to indemnify any Indemnified Party for may participate in any such proceeding with counsel of its choice and Table of Contents at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Third legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party Claim effected without defends against or otherwise deals with any such proceeding, claim or demand, the prior written consent Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent shall of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, conditioned arbitration board or delayed. If any such action or claim is settled with administrative agency of competent jurisdiction and the prior written consent of the Indemnitortime in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier’s check within thirty (30) days after the Indemnifying Party in a reasonable manner at reasonable times regarding date of such notice. (c) To the status extent of any Third Party Claiminconsistency between this Section 10.4 and Section 7.1(c), including regarding strategy, bona fide settlement offers or mediations and material results the provisions of discovery and investigationSection 7.1(c) shall control.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within five business days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on the part of within 10 business days after the Indemnified Party in notifying Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within 10 business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. (b) In the event any legal proceeding shall be entitled threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to indemnification be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and (if then known) the amount of the liability asserted against the Indemnitor by reason of the claim. In the event of the initiation of any Loss relating theretolegal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand (or fails to assume the defense of such proceeding, claim or demand within a reasonable time period), and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel of its choice, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld; provided that if the Indemnitor wishes to settle any such proceeding, the proposed settlement involves only the payment of money and the Indemnified Party does not consent to such settlement, the Indemnitor shall not have any liability or obligation in excess of the proposed settlement amount plus all Expenses incurred on or prior to the date that the written consent is requested by the Indemnified Party. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall consult with forward to the Indemnifying Party in a reasonable manner at reasonable times regarding the status Indemnitor notice of any Third sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party Claimby wire transfer, including regarding strategy, bona fide settlement offers certified or mediations and material results bank cashier's check within 10 business days after the date of discovery and investigationsuch notice.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third-Person claim within fifteen (a "Third Party Claim"15) that, in the judgment of such Indemnified Party, may result in the incurrence days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third-Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within ten (10) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third-Person claim. Notwithstanding the foregoing, should a Claim Notice; providedparty be physically served with a complaint with regard to a third-Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within ten (10) Business Days after receipt thereof and shall deliver to the Indemnitor within ten (10) Business Days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third-Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and describe in reasonable detail, the facts giving rise to an alleged basis for the claim and the amount of the liability (if known) asserted against the Indemnitor by reason of the claim. Buyer shall be permitted to amend its claim at any time and from time to time, prior to the termination date of the applicable representation, warranty or covenant. (b) The Indemnitor shall have the right after the receipt of notice, at its option and at its own expense, to be represented by counsel reasonably satisfactory to the Indemnified Party and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder, provided that no delay on (i) such proceeding, claim or demand involves only money damages and does not seek an injunction or other equitable relief that would materially impact the part operations or business activities of the Acquired Companies, (ii) such proceeding, claim or demand does not relate to any criminal matter, (iii) the Indemnitor conducts the defense of the third-Person claim actively and diligently and (iv) the settlement of, or an adverse judgment with respect to, the third-Person claim is not reasonably likely to establish a precedential custom or practice that is or would constitute a Buyer Material Adverse Effect. In the event the Indemnified Party assumes the defense pursuant to clause (iv) of the immediately preceding sentence, to the extent the related Loss or Expense of the Indemnified Party in notifying is an indemnifiable Loss or Expense, the Indemnitor shall relieve pay and satisfy all of such Losses and Expenses. Upon Buyer’s request, the Indemnitor will apprise the Indemnified Party of any liability or obligations hereundermaterial development, except including a settlement offer, with respect to the extent third-Person claim. So long as the Indemnitor is conducting the defense of the third-Person claim in accordance with this Section 11.5(b) (and all conditions thereunder remain satisfied), the Indemnitor will not be responsible for any attorneys’ fees or other expenses incurred by the Indemnitor regarding the third-Person claim provided, however, that the Indemnitor has been materially prejudiced thereby, and then only Indemnified Party may participate in (but not control) any proceeding with respect to such extentthird-Person claim with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. The Indemnified Party shall have make available to the right Indemnitor, at the Indemnitor’s expense, all witnesses, pertinent records, materials and information in its sole discretion the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably requested by the Indemnitor in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor is not permitted to, or otherwise elects not to conduct defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of any such Third Party Claimproceeding; provided, however, that the Indemnitor shall not be liable obligated pursuant to indemnify any this Section 11.5 to pay for only one (1) firm of counsel for all Indemnified Parties plus one (1) additional local counsel firm. Neither the Indemnitor nor the Indemnified Party for any settlement of may settle any such Third Party Claim effected proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the prior written consent of the Indemnitorother party, which such consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned. If the Indemnified Party shall refuse to consent to the Indemnitor’s settlement of any such action third-Person claim, so long as only money damages are involved and there is no admission of liability or claim is settled wrongdoing with respect to the prior written consent Indemnified Party, the liability of the IndemnitorIndemnitor in respect of such third-Person claim shall not exceed the amount for which the third-Person claim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with such proposed settlement of such third-Person claim. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier’s check within thirty (30) days after the Indemnifying Party in a reasonable manner at reasonable times regarding date of such notice. (c) To the status extent of any Third Party Claiminconsistency between this Section 11.5 and Section 8.1(c) (relating to Tax contests), including regarding strategy, bona fide settlement offers or mediations and material results the provisions of discovery and investigationSection 8.1(c) shall control with respect to Tax contests.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within five business days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on within 10 business days after the part Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 10.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) In the event any legal proceeding shall be entitled threatened or instituted or any claim or demand shall be asserted by any 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 Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to indemnification be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, 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. In the event of the initiation of any Loss relating theretolegal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld; provided, that, if the Indemnitor wishes to settle any such proceeding and the Indemnified Party does not consent to such settlement, the Indemnitor shall not have any liability or obligation in excess of the proposed settlement amount. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall consult with forward to the Indemnifying Party in a reasonable manner at reasonable times regarding the status Indemnitor notice of any Third sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party Claimby wire transfer, including regarding strategy, bona fide settlement offers certified or mediations and material results bank cashier's check within 30 days after the date of discovery and investigationsuch notice.

Third Person Claims. The below paragraphs (aA) Promptly through (F) shall be applicable to THIRD PERSON CLAIMS against a PARTY and/or its AFFILIATES. (A) Within forty-five (45) days after receipt by an INDEMNITEE of written NOTICE of the assertion of a CLAIM or the commencement of any action, litigation or proceeding by any third party of any claim against any Indemnified Party THIRD PERSON (a "Third Party ClaimTHIRD PERSON CLAIM") that, in the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses with respect to any matter for which such Indemnified Party would indemnification is or may be entitled to indemnification owing pursuant to this AgreementSection 12.2 or 12.3, such Indemnified Party the INDEMNITEE shall deliver give a NOTICE OF CLAIM to the Indemnitor a Claim Notice; providedINDEMNITOR and shall thereafter keep the INDEMNITOR reasonably informed with respect thereto. (B) The INDEMNITOR shall have the right, that at its option and at its own expense, to participate in or, by giving written NOTICE to the INDEMNITEE no delay on the part later than thirty (30) days after delivery of the Indemnified Party in notifying NOTICE OF CLAIM, to take exclusive control of (after acknowledging its obligation to provide indemnification under this Article XII for such CLAIM), the Indemnitor shall relieve the Indemnitor defense, negotiations and/or settlement of any liability or obligations hereunder, except such THIRD PERSON CLAIM with counsel reasonably satisfactory to the extent that INDEMNITEE, whereupon the Indemnitor has been materially prejudiced thereby, INDEMNITOR shall assume all past and then only future responsibility for any CLAIMS incurred by the INDEMNITEE with respect to such extent. THIRD PERSON CLAIM. (C) The Indemnified Party INDEMNITEE shall have the right to participate in the defense, negotiation and/or settlement of any such THIRD PERSON CLAIM with counsel of its sole discretion own choosing; provided that after NOTICE from the INDEMNITOR to conduct the INDEMNITEE of the INDEMNITOR's election to take control of the defense, negotiation and/or settlement of any THIRD PERSON CLAIM, the INDEMNITOR shall not be liable to the INDEMNITEE for any legal or other expenses incurred by the INDEMNITEE on its own volition in connection with the defense, negotiation and/or settlement thereof other than reasonable costs of investigation. (D) Each PARTY agrees to cooperate with and render to the other PARTY such assistance as may reasonably be requested in order to insure the proper and adequate defense of any such THIRD PERSON CLAIM or proceeding which assistance shall include, without limitation, making appropriate personnel reasonably available for any discovery or trial. (E) If the INDEMNITOR fails or refuses to undertake the defense of any such Third Party Claim; providedTHIRD PERSON CLAIM within thirty (30) days after delivery of the NOTICE OF CLAIM, that the Indemnitor INDEMNITEE shall not be liable have the right to indemnify any Indemnified Party for any take exclusive control of the defense, negotiation and/or settlement of such THIRD PERSON CLAIM at the INDEMNITOR's expense. (F) Neither the INDEMNITOR nor the INDEMNITEE shall settle or compromise any such Third Party Claim effected THIRD PERSON CLAIM without the prior written consent of the Indemnitorother, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation.

Third Person Claims. (a) Promptly after The Indemnitor shall have the assertion by right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any third party of any claim Person claim, action or suit against any Indemnified Party (each a "Third Party Third-Person Claim") that, in the judgment of such Indemnified Party, may result in the incurrence as to which indemnification will be sought by such Indemnified Party of Losses for which from any Indemnitor hereunder, and in any such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such case the Indemnified Party shall deliver to cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor a Claim Noticein connection therewith; provided, (a) that no delay on the part of the Indemnified Party may participate, through counsel chosen by it and at its own expense, in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party ClaimThird-Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; provided, (b) that the Indemnitor shall not be liable pay for the reasonable fees and expenses of such Indemnified Party's counsel to indemnify any the extent that such Indemnified Party for has been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; (c) the Indemnitor shall not have the right to settle any settlement of any such Third Party Third- Person Claim effected without the prior written consent of -24- the Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and has (ii) no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall have no right to conduct or control any defense of a claim brought by a Governmental Body without the consent of the Indemnitor, Indemnified Party. So long as the Indemnitor is defending in good faith any third Person claim as to which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionindemnification has been sought hereunder, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers not settle or mediations and material results of discovery and investigationcompromise such third Person claim.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within ten (a "Third Party Claim"10) that, in the judgment of such Indemnified Party, may result in the incurrence business days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on the part of within ten (10) business days after the Indemnified Party in notifying Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within ten (10) business days after receipt thereof and shall deliver to the Indemnitor within five (5) business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) In the event any legal proceeding shall be entitled threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to indemnification be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, 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. In the event of the initiation of any Loss relating theretolegal proceeding against the Indemnified Party by a third Person, the Indemnitor shall, except as otherwise provided below, be represented by counsel of its choice and control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder. Notwithstanding the foregoing, if in the reasonable opinion of the Indemnified Party, any such third Person claim or the litigation or resolution of any such third Person claim, involves an issue or matter which, if determined adversely to the Indemnified Party, would have a material adverse effect on the Indemnified Party, including without limitation a dispute with a significant customer or supplier of the Business, then the Indemnified Party (upon notice to the Indemnitor) shall have the right to control the defense or settlement of any such claim or demand and its reasonable costs and expenses shall be included as part of the indemnification obligation of the Indemnitor; provided, however, that the party not controlling the defense may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor fails to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding without the consent of the other party, such consent not to be unreasonably withheld. (c) Notwithstanding anything contained herein to the contrary, Seller shall consult have the exclusive right to assume the defense of, or otherwise contest or settle any claim, action, suit, investigation or proceeding which is an Excluded Liability and Buyer shall have the exclusive right to control the defense of, or otherwise contest or settle any claim, action, suit or proceeding which is an Assumed Liability. Buyer and Seller agree to cooperate and assist the other with all reasonable requests (including, without limitation, making employees available for interviews, depositions and trials) and to afford the Indemnifying Party other access to any records, reports or other documents reasonably requested in a reasonable manner at reasonable times regarding the status of any Third Party Claimconnection with such claims, including regarding strategyactions, bona fide settlement offers suits or mediations and material results of discovery and investigationproceedings.

Third Person Claims. (a) Promptly after The Indemnitor shall have the assertion by right to conduct ------------------- and control, through counsel of its choosing, the defense, compromise or settlement of any third party of any claim person claim, action or suit against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence as to which indemnification will be sought by such Indemnified Party of Losses for which from any Indemnitor hereunder, and in any such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such case the Indemnified Party shall deliver to cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor a Claim Noticein connection therewith; provided, that no delay on the part of (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party's counsel to the extent that such Indemnified Party Claimhas been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; provided, that (c) the Indemnitor shall not be liable have the right to indemnify settle any Indemnified Party for any settlement of any such Third Party Claim effected third Person claim without the prior written consent of the Indemnitor, which consent Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall not be unreasonably withheld, conditioned have no right to conduct or delayed. If control any such action or defense of a claim is settled with brought by a Governmental Body without the prior written consent of the Indemnitor, or if there be a final judgment for Indemnified Party. So long as the plaintiff Indemnitor is defending in good faith any such actionthird Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers not settle or mediations and material results of discovery and investigationcompromise such third Person claim.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within five business days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on within 10 business days after the part Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 10.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) In the event any legal proceeding shall be entitled threatened or instituted or any claim or demand shall be asserted by any 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 Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to indemnification be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, 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. In the event of the initiation of any Loss relating theretolegal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld; provided, that, if the Indemnitor wishes to settle any such proceeding and the Indemnified Party does not consent to such settlement, the Indemnitor shall not have any liability or obligation in excess of the proposed settlement amount. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall consult with forward to the Indemnifying Party in a reasonable manner at reasonable times regarding the status Indemnitor notice of any Third sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party Claimby wire transfer, including regarding strategycertified or bank cashier’s check within 30 days after the date of such notice. (c) To the extent of any inconsistency between this Section 10.5 and Section 7.2(c) (relating to Tax contests), bona fide settlement offers or mediations and material results the provisions of discovery and investigationSection 7.2(c) shall control with respect to Tax contests.

Third Person Claims. (a) Promptly after the assertion by any third party of any claim against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the The Indemnitor a Claim Notice; provided, that no delay on the part of the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct and control, in good faith and at its expense, through counsel of its choosing, the defense, compromise or settlement of any Third-Person Claim by delivering written notice to the Indemnified Party within thirty (30) days after the Indemnitor’s receipt of the Claim Notice relating to such Third-Person Claim; provided, however, that the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Party ClaimThird-Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof; provided, further, that notwithstanding the foregoing, the Indemnitor will bear the reasonable expenses of one such separate counsel to the Indemnified Party in each jurisdiction (and shall pay such expenses as incurred) if the defendants in, or targets of, any such Action include both the Indemnified Party and the Indemnitor, and the Indemnified Party shall have reasonably concluded that there are or are reasonably likely to be legal defenses available to it which are different from or additional to those available to the Indemnitor or that representation by the same counsel is or is reasonably likely to be a conflict of interest; and provided, further, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected not, without the prior written consent of the Indemnitor, Indemnified Party (which written consent shall not be unreasonably withheld, conditioned or delayed. If ) pay, compromise or settle any such action Third-Person Claim unless such payment, settlement or claim compromise is settled solely for monetary damages, by its terms obligates the Indemnitor to pay the full amount of the liability in connection with such Third-Person Claim and includes an unconditional release of the Indemnified Party from all liability arising out of such Third-Person Claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third-Person Claim without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder. Notwithstanding anything contained herein to the contrary, the Indemnitor shall not be entitled to have sole control over (and if it so desires, the Indemnified Party shall have sole control over) the defense, settlement or compromise of (but the Indemnitor shall nevertheless be required to pay all Losses and Expenses incurred by the Indemnified Party in connection with such defense, settlement or compromise to the extent required pursuant to this Article IX): (i) any Third-Person Claim that seeks only an order, injunction or other equitable relief against any Indemnified Party or any of its Affiliates that does not involve the payment of money other than in a de minimis amount or (ii) any Third-Person Claim reasonably expected to have a material adverse financial impact on such Indemnified Party’s business relationship with such Third-Person or its Affiliates that is materially greater than the amount that would be reasonably expected to be indemnified by the Indemnitor if such Third-Person Claim were adversely determined against such Indemnified Party and Indemnitor. (b) If the Indemnitor elects not to assume the defense, settlement or compromise of an asserted liability, fails to timely and properly notify the Indemnified Party of its election as herein provided or, at any time after assuming such defense, fails to diligently defend against such Third-Person Claim in good faith or fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third-Person Claim (taking into account the balance of the Indemnity Escrow), the Indemnified Party may, at the Indemnitor’s expense, pay, defend, settle or compromise such asserted liability (but the Indemnitor shall nevertheless be required to pay all Losses and Expenses incurred by the Indemnified Party in connection with such payment, defense, settlement or compromise to the extent required pursuant hereto, subject to the limitations on such Indemnitor’s indemnification obligations hereunder); provided, however, that no Indemnified Party will, without the prior written consent of the IndemnitorIndemnitor (not to be unreasonably withheld, conditioned or if there be a final delayed) settle or compromise or consent to the entry of any judgment for with respect to any Third-Person Claim; provided, further, that the plaintiff Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such actionThird-Person Claim as to which the Indemnitor is not conducting and controlling the defense thereof pursuant to this Section 9.4(b). In connection with any defense of a Third-Person Claim (whether by the Indemnitor or the Indemnified Party), each of OpCo and Buyer shall, and shall cause their respective Affiliates to, cooperate in good faith in the defense or prosecution thereof, including providing the Indemnitor and its representatives reasonable access during normal business hours, to all personnel who may have knowledge of the facts and circumstances, and to all their respective properties, books, Contracts, commitments and records, relating to any claim by an Indemnified Party and to retain and furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested by a party hereto in connection therewith. (c) Notwithstanding the foregoing, the Indemnified Party procedures with respect to the conduct and control of the defense, compromise or settlement of any Third-Person Claim for any and all matters relating to Taxes shall be entitled to indemnification for governed exclusively by Section 6.1 and shall not be governed by the amount above provisions of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationthis Section 9.4.

Third Person Claims. (a) Promptly after the assertion by any third a party has received notice of or has knowledge of any claim against any Indemnified Party (it covered by Section 11 by a "Third Party Claimor the commencement of any action or proceeding by a Third Person with respect to any such claim, such party (sometimes referred to as the "Indemnitee") that, in shall give the judgment other party (sometimes referred to as the "Indemnitor") written notice of such Indemnified Party, may result in the incurrence by claim or commencement of such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Noticeaction or proceeding; provided, however, that no delay on the part of failure to give such notice will not affect the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability right to indemnification hereunder with respect to such claim, action or obligations hereunderproceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has been materially prejudiced therebynotified the Indemnitee within (30) days from the receipt of the foregoing notice that it wishes to defend against the claim by the Third Person, and then only to such extent. The Indemnified Party the Indemnitor shall have the right in its sole discretion to conduct assume and control the defense of any the claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, provided that the assumption of such Third Party Claim; provided, that defense by the Indemnitor shall not be liable constitute an acknowledgment of the obligation to indemnify any Indemnified Party for any settlement the Indemnitee hereunder. The Indemnitee may participate in the defense, at its sole expense, of any such Third Party Claim effected without claim for which the prior written consent of Indemnitor shall have assumed the Indemnitordefense pursuant to the preceding sentence, which consent shall not be unreasonably withheldprovided, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitorhowever, or if there be a final judgment that counsel for the plaintiff Indemnitor shall act as lead counsel in any all matters pertaining to the defense or settlement of such actionclaims, suit or proceeding other than claims that in Indemnitee's reasonable judgment could have a material and adverse effect on Indemnitee's business apart from the Indemnified Party payment of money damages. The Indemnitee shall be entitled to indemnification for the amount reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationclaim.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within five business days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on the part of within 10 business days after the Indemnified Party in notifying Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within 10 business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. (b) In the event any legal proceeding shall be entitled threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to indemnification be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and (if then known) the amount of the liability asserted against the Indemnitor by reason of the claim. In the event of the initiation of any Loss relating theretolegal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand (or fails to assume the defense of such proceeding, claim or demand within a reasonable time period), and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel of its choice, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall consult with forward to the Indemnifying Party in a reasonable manner at reasonable times regarding the status Indemnitor notice of any Third sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party Claimby wire transfer, including regarding strategy, bona fide settlement offers certified or mediations and material results bank cashier’s check within 10 business days after the date of discovery and investigationsuch notice.

Third Person Claims. (a) Promptly after the assertion In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Person Claim") that), in the judgment of such Indemnified Party, may result Party must notify the Indemnitor in writing of the incurrence Third Person Claim within 10 days after receipt by such Indemnified Party of Losses for written notice thereof. Any notice of a Third Person Claim shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such Indemnified Party would be entitled claim is based, the facts giving rise to indemnification pursuant to this Agreementan alleged basis for the claim and (if then known) the amount of the liability asserted against the Indemnitor by reason of the claim. Following such notice of a Third Person Claim, such the Indemnified Party shall deliver to the Indemnitor, within five business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating thereto. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Person Claim, the Indemnified Party must notify the Indemnitor with a Claim Noticecopy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. (b) In the event any legal proceeding shall be threatened or instituted or any claim or demand shall be asserted in respect of a Third Party Claim, the Indemnitor shall have the sole and absolute right after the receipt of the notice required by Section 7.4(a), at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any such proceeding, claim or demand; provided, however, that no delay on the part of the Indemnified Party may participate in notifying the Indemnitor shall relieve the Indemnitor any such proceeding with counsel of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, its choice and then only to such extentat its expense. The Indemnified Party shall have parties hereto agree to cooperate fully with each other in connection with the right in its sole discretion to conduct the defense of any such Third Party Claim; provideddefense, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any negotiation or settlement of any such Third legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party Claim effected defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the prior written consent of the Indemnitorother party, which consent shall not be unreasonably withheld. After any final judgment or award shall have been rendered by a court, conditioned arbitration board or delayed. If any such action or claim is settled with administrative agency of competent jurisdiction and the prior written consent of the Indemnitortime in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at an agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier's check within 30 days after the Indemnifying Party in a reasonable manner at reasonable times regarding the status date of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationsuch notice.

Third Person Claims. (a) Promptly after The Indemnitor shall have the assertion by right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any third party of any claim person claim, action or suit against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence as to which indemnification will be sought by such Indemnified Party of Losses for which from any Indemnitor hereunder, and in any such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such case the Indemnified Party shall deliver to cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor a Claim Noticein connection therewith; provided, that no delay on the part of (a) the Indemnified Party may participate, through counsel chosen by it and at its own expense, in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third claim, action or suit as to which the Indemnitor has so elected to conduct and control the defense thereof; (b) the Indemnitor shall pay for the fees and expenses of such Indemnified Party’s counsel to the extent that such Indemnified Party Claimhas been advised by counsel that there is a reasonable likelihood of conflict of interest between the Indemnified Party and the Indemnitor; provided, that (c) the Indemnitor shall not be liable have the right to indemnify settle any Indemnified Party for any settlement of any such Third Party Claim effected third Person claim without the prior written consent of the Indemnitor, which consent Indemnified Party unless such settlement (i) releases the Indemnified Party from all past and future liability concerning the subject matter of the action and (ii) has no effect on the business or assets of the Indemnified Party; and (d) the Indemnitor shall not be unreasonably withheld, conditioned have no right to conduct or delayed. If control any such action or defense of a claim is settled with brought by a Governmental Body without the prior written consent of the Indemnitor, or if there be a final judgment for Indemnified Party. So long as the plaintiff Indemnitor is defending in good faith any such actionthird Person claim as to which indemnification has been sought hereunder, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers not settle or mediations and material results of discovery and investigationcompromise such third Person claim.

Third Person Claims. (ai) Promptly after the assertion by If any third party of any claim against Third Person notifies any Indemnified Party Person with respect to any matter (a "“Third Person Claim”) that may give rise to a claim for indemnification against an Indemnifying Party Claim") thatunder Section 8.1 or Section 8.2, in then the judgment Indemnified Person shall promptly give written notification to the Indemnifying Party of this Agreement. Such notification shall be given within 30 days after receipt by the Indemnified Person of notice of such Indemnified PartyThird Person Claim, may result and shall describe in the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver reasonable detail (to the Indemnitor a extent known by the Indemnified Person) the facts constituting the basis for such Third Person Claim Noticeand the amount of the claimed Damages (if available); provided, however, that no delay or failure on the part of the Indemnified Party Person in so notifying the Indemnitor Indemnifying Party shall relieve the Indemnitor Indemnifying Party of any liability or obligations hereunder, obligation hereunder except to the extent that such delay or failure results in insufficient time being available to permit the Indemnitor has been materially prejudiced therebyIndemnifying Party to effectively defend against the Third Person Claim or otherwise prejudices the Indemnifying Party’s ability to defend against the Third Person Claim. Asset Purchase Agreement between Proprietary and Confidential (ii) The Indemnifying Party may, and then only upon written notice to such extent. The the Indemnified Party shall have the right in its sole discretion to conduct Person, assume control of the defense of any such Third Person Claim with counsel reasonably satisfactory to the Indemnified Person; provided that (a) the Indemnifying Party Claim; provided, notifies the Indemnified Person in writing within 30 days after the Indemnified Person has given notice of the Third Person Claim that the Indemnitor Indemnifying Party will indemnify the Indemnified Person from and against the Damages the Indemnified Person may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Person Claim (subject to the provisions of this Article VIII); (b) the ad damnum, if any, is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VIII; (c) the Indemnifying Party provides the Indemnified Person with evidence acceptable to the Indemnified Person that the Indemnifying Party will have the financial resources to defend against the Third Person Claim and fulfill its indemnification obligations hereunder; (d) the Third Person Claim does not involve criminal liability and seeks only money damages and not equitable relief against the Indemnified Person; (e) settlement of, or an adverse judgment with respect to, the Third Person Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person, and (f) the Indemnifying Party conducts the defense of the Third Person Claim actively and diligently. (iii) If the Indemnifying Party does not, or is not permitted under the terms of this Agreement to, so assume control of the defense of a Third Person Claim, the Indemnified Person shall control such defense. (iv) The Non-controlling Party may participate in such defense at its own expense. The Controlling Party shall keep the Non-controlling Party advised of the status and defense of such Third Person Claim and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such Third Person Claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Third Person Claim. The reasonable fees and expenses of counsel to the Indemnified Person with respect to a Third Person Claim shall be considered Damages for purposes of this Agreement if: (x) the Indemnified Person controls the defense of such Third Person Claim under the terms of this Section 8.3; or (y) the Indemnifying Party assumes control of such defense and the Indemnified Person reasonably concludes that the Indemnifying Party and the Indemnified Person have conflicting interests or different defenses available with respect to such Third Person Claim. (v) The Indemnifying Party shall not be liable agree to indemnify any Indemnified Party for any settlement of, or the entry of any such judgment arising from, any Third Party Person Claim effected without the prior written consent of the IndemnitorIndemnified Person, which consent shall not be unreasonably withheld, conditioned withheld or delayed; provided that the consent of the Indemnified Person shall not be required if the Indemnifying Party agrees in writing to pay any amounts payable under such settlement or judgment and such settlement or judgment includes a complete release of the Indemnified Person from further liability and has no other adverse effect on the Indemnified Person. The Indemnified Person shall send the Indemnifying Party at least ten days prior notice of any settlement of the Third Person Claim that it proposes to enter into, and if the Indemnifying Party has not yet assumed the defense of the Third Person Claim that is capable of being assumed under the terms of Section 8.3(a)(ii), the Indemnifying Party may admit in writing its obligation to provide indemnity as described in Section 8.3(a)(ii)(a), assume the defense, and reject the proposed settlement. If the Indemnifying Party has assumed the defense of the Third Person Claim or the initial 30-day period in which the Indemnifying Party may elect to assume the defense has not yet run, the Indemnified Person shall not agree to any settlement of, or the entry of any judgment arising from, any such action or claim is settled with Third Person Claim without the prior written consent of the IndemnitorIndemnifying Party, which shall not be unreasonably withheld or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationdelayed.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within thirty (a "Third Party Claim"30) that, in the judgment of such Indemnified Party, may result in the incurrence days after receipt by such Indemnified Party of Losses for written notice of the third Person claim. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such Indemnified Party would be entitled claim is based, the facts giving rise to indemnification pursuant to this Agreementan alleged basis for the claim and (if then known) the amount or method of computation of the liability asserted against the Indemnitor by reason of the claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on within 10 Business Days after the part Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party in notifying relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall provide the Indemnitor with a copy of the complaint within five (5) Business Days after receipt thereof and shall deliver to the Indemnitor within seven (7) Business Days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of any liability or its obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced therebyunder this Article XI except, and then only to the extent, it shall have been materially prejudiced by such extentfailure. (b) Within ten (10) Business Days after receiving a Claim Notice for indemnification or reimbursement under Section 11.3 or this Section 11.5, the Indemnitor shall, by written notice to the Indemnified Party, either (i) concede or deny liability for the claim in whole or in part, or (ii) in the case of a claim asserted by a third party, advise that the matters set forth in the notice are, or will be, subject to contest or legal proceedings not yet finally resolved. The If the Indemnitor concedes liability in whole or in part, it shall, within thirty (30) Business Days of such concession, make payment of the amount of the claim to the Indemnified Party to the extent of the liability conceded, in immediately available funds equal to the amount of such claim so payable. If the Indemnitor denies liability in whole or in part or advises that the matters set forth in the notice are, or will be, subject to contest or legal proceedings not yet finally resolved, then the Indemnitor shall have make no payment (except for the right amount of any conceded liability payable as set forth above) until the matter is resolved in its sole discretion accordance with this Agreement. (c) In the case of any third party claim, if within ten (10) Business Days after receiving the notice described in the preceding paragraph (a), the Indemnitor gives written notice to conduct the Indemnified Party stating that the Indemnitor would be liable under the provisions hereof for indemnity in the amount of such claim if such claim were valid and that the Indemnitor disputes and intends to defend against such claim, liability or expense at the Indemnitor’s own cost and expense then counsel for the defense shall be selected by the Indemnitor (subject to the consent of any such Third Indemnified Party Claim; provided, that which consent shall not be unreasonably withheld) and the Indemnitor shall not be liable required to indemnify consent to any payment to the Indemnified Party for any settlement with respect to such claim, liability or expense as long as the Indemnitor is conducting a good faith and diligent defense at its own expense; provided, however, that the assumption of defense of any such Third matters by the Indemnitor shall relate solely to the claim, liability or expense that is subject or potentially subject to indemnification If the Indemnitor assumes such defense in accordance with the preceding sentence, it shall have the right, with the consent of such Indemnified Party, which consent shall not be unreasonably withheld, to settle all indemnifiable matters related to claims by third parties which are susceptible to being settled provided the Indemnitor’s obligation to indemnify such Indemnified Party Claim effected without therefor will be fully satisfied only by payment of money by the prior written Indemnitor pursuant to a settlement which includes a complete release of such Indemnified Party. Notwithstanding anything herein stated, such Indemnified Party shall at all times have the right to fully participate in such defense at its own expense directly or through counsel; provided, however, if the named parties to the action or proceeding include both the Indemnitor and the Indemnified Party and representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the reasonable expense of separate counsel for such Indemnified Party shall be paid by the Indemnitor provided that such Indemnitor shall be obligated to pay for only one counsel for the Indemnified Party. If no such notice of intent to dispute and defend is given by the Indemnitor, or if such diligent good faith defense is not being or ceases to be conducted, such Indemnified Party may undertake the defense of (with counsel selected by such Indemnified Party), and shall have the right to compromise or settle, such claim, liability or expense (exercising reasonable business judgment) with the consent of the Indemnitor, which consent shall not be unreasonably withheld. After any final judgment or award shall have been rendered by a court, conditioned arbitration board or delayed. If any such action or claim is settled with administrative agency of competent jurisdiction and the prior written consent of the Indemnitortime in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier’s check within thirty (30) days after the Indemnifying Party in a reasonable manner at reasonable times regarding the status date of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationsuch notice.

Third Person Claims. (a) Promptly after the assertion by any third party an Indemnitee has received ------------------- notice of or has knowledge of any claim against any Indemnified Party by a person not a party to this Agreement (a "Third Party ClaimPerson") thator the commencement of any action or proceeding by a ------------ Third Person, in the judgment Indemnitee shall, as a condition precedent to a claim with respect thereto being made against the Escrow Agreement, give the Stockholders' Representative written notice of such Indemnified Party, may result in claim or the incurrence by commencement of such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Noticeaction or proceeding; provided, however that no delay on the part of failure to give such notice will not -------- ------- effect the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability Indemnitees' right to indemnification hereunder with respect to such claim, action or obligations hereunderproceeding, except to the extent that the Indemnitor has Stockholders' Representative has, or the stockholders have, been materially actually prejudiced therebyas a result of such failure. If the Stockholder Representative notifies the Indemnitee within 30 days from the receipt of the foregoing notice that he wishes to defend against the claim by the Third Person and if the estimated amount of the claim, and together with all other claims made against the Escrow Shares that have not been settled, is less than the remaining balance of the Escrow Shares, then only to such extent. The Indemnified Party the Stockholder Representative shall have the right to assume and control the defense of the claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the Stockholder Representative shall be entitled to reimbursement out of the Escrow Shares for such defense. The Indemnitee may participate in the defense, at its sole discretion expense of any such claim for which the Stockholder Representative shall have assumed the defense pursuant to conduct the preceding sentence, provided that counsel for the Stockholder Representative shall act as lead counsel in all matters pertaining to the defense or settlement of such claims, suit or proceedings; provided, however, -------- ------- that Indemnitee shall control the defense of any such Third Party Claim; provided, claim or proceeding that in Indemnitee's reasonable judgment could have a material and adverse effect on Indemnitee's business apart from the Indemnitor payment of money damages. The Indemnitee shall not be liable entitled to indemnify any Indemnified Party indemnification for the reasonable fees and expenses of its counsel for any settlement period during which the Stockholder Representative has not assumed the defense of any claim. Whether or not the Stockholder Representative shall have assumed the defense of any claim, nether the Indemnitee nor the Stockholder Representative shall make any settlement with respect to any such Third Party Claim effected claim, suit or proceeding without the prior written consent of the Indemnitorother, which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any such action or It is understood and agreed that in situations where failure to settle a claim is settled with expeditiously could have an adverse effect on the prior written consent party wishing to settle, the failure of the Indemnitor, or if there be party controlling the defense to act upon a final judgment request for the plaintiff in any consent to such action, the Indemnified Party settlement within five business days of receipt of notice thereof shall be entitled deemed to indemnification constitute consent to such settlement for the amount purposes of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationthis Article IX.

Third Person Claims. (a) Promptly after the assertion by any third party an Indemnitee has received notice ------------------- of or has knowledge of any claim against any Indemnified Party by a person not a party to this Agreement (a "Third Party ClaimPerson") thator the commencement of any action or proceeding by a Third Person, in the judgment Indemnitee shall, as a condition precedent to a claim with respect thereto being made against the Escrow Agreement, give the Stockholder Representative written notice of such Indemnified Party, may result in claim or the incurrence by commencement of such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Noticeaction or proceeding; provided, however, that no delay on the part of failure to give such notice will not -------- ------- effect the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability Indemnities' right to indemnification hereunder with respect to such claim, action or obligations hereunderproceeding, except to the extent that the Indemnitor has Stockholder Representative has, or the Stockholders have, been materially actually prejudiced therebyas a result of such failure. If the Stockholder Representative notifies the Indemnitee within 30 days from the receipt of the foregoing notice that he wishes to defend against the claim by the Third Person and if the estimated amount of the claim, and together with all other claims made against the Escrow Funds that have not been settled, is less than the remaining balance of the Escrow Funds, then only to such extent. The Indemnified Party the Stockholder Representative shall have the right to assume and control the defense of the claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the Stockholder Representative shall be entitled to reimbursement out of the Escrow Funds for such defense. The Indemnitee may participate in the defense, at its sole discretion expense of any such claim for which the Stockholder Representative shall have assumed the defense pursuant to conduct the preceding sentence, provided that counsel for the Stockholder Representative shall act as lead counsel in all matters pertaining to the defense or settlement of such claims, suit or proceedings; provided, however, that Indemnitee shall -------- ------- control the defense of any such Third Party Claim; provided, claim or proceeding that in Indemnitee's reasonable judgment could have a material and adverse effect on Indemnitee's business apart from the Indemnitor payment of money damages. The Indemnitee shall not be liable entitled to indemnify any Indemnified Party indemnification for the reasonable fees and expenses of its counsel for any settlement period during which the Stockholder Representative has not assumed the defense of any claim. Whether or not the Stockholder Representative shall have assumed the defense of any claim, neither the Indemnitee nor the Stockholder Representative shall make any settlement with respect to any such Third Party Claim effected claim, suit or proceeding without the prior written consent of the Indemnitorother, which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any such action or It is understood and agreed that in situations where failure to settle a claim is settled with expeditiously could have an adverse effect on the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionparty wishing to settle, the Indemnified Party failure of a party controlling the defense to act upon a request for consent to such settlement within five business days of receipt of notice thereof shall be entitled deemed to indemnification constitute consent to such settlement for the amount purposes of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationthis Section 8.1.

Third Person Claims. (a) Promptly after the assertion In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the incurrence third Person claim promptly after receipt by such Indemnified Party of Losses for which such written notice of the third Person claim. Thereafter, the Indemnified Party would be entitled shall promptly deliver to indemnification pursuant to this Agreement, such the Indemnitor copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint promptly after receipt thereof and shall deliver to the Indemnitor promptly after the receipt of such complaint copies of notices and documents (including court papers) physically served upon the Indemnified Party relating to the third Person claim. The failure of any Indemnified Party to give the Claim Notice promptly or to deliver copies of notices and documents as required by this Section 9.4 shall not affect such Indemnified Party’s rights under this Article 9 except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor. (b) In the event of the initiation of any legal proceeding against the Indemnified Party by a Claim Noticethird Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that, the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense, and that no delay on if the part interests of the Indemnified Party and Indemnitor are sufficiently divergent that representation by common counsel is inappropriate, the cost of the Indemnified Party’s separate counsel shall be included in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, Indemnified Party’s claim for Losses and then only to such extentExpenses. The Indemnified Party shall have parties hereto agree to cooperate fully with each other in connection with the right in its sole discretion to conduct the defense of any such Third Party Claim; provideddefense, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any negotiation or settlement of any such Third legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party Claim effected without defends against or otherwise deals with any such proceeding, claim or demand, the prior written consent Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement does not include a release in favor of the Indemnified Party or which obligates the other party to pay money, to perform obligations or to admit liability without the consent shall of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, conditioned arbitration board or delayed. If any such action or claim is settled with administrative agency of competent jurisdiction and the prior written consent of the Indemnitortime in which to appeal therefrom has expired, or if there a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be a final judgment for indemnified by the plaintiff in any such actionIndemnitor hereunder, the Indemnified Party shall be entitled forward to indemnification for the amount Indemnitor notice of any Loss relating thereto. The sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party shall consult with by wire transfer, certified or bank cashier’s check within thirty (30) days after the Indemnifying Party in a reasonable manner at reasonable times regarding the status date of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationsuch notice.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any the Indemnified Party (a "Third Party Claim") thatshall notify the Indemnitor in writing, and in reasonable detail, of the judgment of such Indemnified Party, may result in the incurrence third Person claim within five business days after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the third Person claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor a Claim Notice; providedIndemnitor, that no delay on the part of within 10 business days after the Indemnified Party in notifying Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except relating to the extent that third Person claim. Notwithstanding the Indemnitor has been materially prejudiced therebyforegoing, and then only should a party be physically served with a complaint with regard to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such actionthird Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within 10 business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. (b) In the event any legal proceeding shall be entitled threatened or instituted or any claim or demand shall be asserted by any Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly cause written notice of the assertion of any such claim of which it has knowledge which is covered by this indemnity to indemnification be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and (if then known) the amount of the liability asserted against the Indemnitor by reason of the claim. In the event of the initiation of any Loss relating theretolegal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand (or fails to assume the defense of such proceeding, claim or demand within a reasonable time period), and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel of its choice, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall consult with forward to the Indemnifying Party in a reasonable manner at reasonable times regarding the status Indemnitor notice of any Third sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party Claimby wire transfer, including regarding strategy, bona fide settlement offers certified or mediations and material results bank cashier's check within 10 business days after the date of discovery and investigationsuch notice.

Third Person Claims. 8.6.1. If the Claiming Party seeks indemnification under this Article VIII with respect to any pending or threatened action at law or suit in equity by a third Person against such Claiming Party (each such action being a “Third Person Claim”), the 3063972 43 Indemnifying Party will be entitled, if it so elects by written notice delivered to the Claiming Party no later than thirty (30) days after receiving the Claim Notice, and such notice (a) Promptly after includes the assertion by any third party Indemnifying Party’s acknowledgment that as between the Indemnifying Party and the Claiming Party, the Indemnifying Party shall be responsible for all Losses associated with such Third Person Claim in accordance with the terms set forth in this Agreement and (b) provides reasonably satisfactory evidence of any claim against any Indemnified Party (a "Third Party Claim") that, its financial ability to satisfy in the judgment of aggregate all such Indemnified Party, indemnification and cost and expense reimbursement obligations (which evidence may result in include funds under the incurrence by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnitor a Claim Notice; provided, that no delay on the part of the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except Indemnity Escrow Account but only to the extent such funds are not reserved for, or the subject of, any other claims, subject to Section 8.6.2, to conduct and control the defense, compromise or settlement of such Third Person Claim with counsel reasonably acceptable to the Claiming Party and at the expense of the Indemnifying Party. In any such case, the Claiming Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith; provided that the Indemnitor has been materially prejudiced therebyClaiming Party may participate, and then only to such extent. The Indemnified Party shall have the right through counsel chosen by it, in its sole discretion to conduct the defense of any such Third Person Claim as to which the Indemnifying Party Claim; providedhas so elected to conduct and control the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Claiming Party unless (i) the employment of such counsel at the Indemnifying Party’s expense shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Person Claim (including any impleaded parties) include both the Claiming Party and the Indemnifying Party, and the Claiming Party reasonably determines that representation by counsel to the Indemnitor Indemnifying Party of both the Indemnifying Party and such Claiming Party may present such counsel with a conflict of interest. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Person Claim that involves claims for equitable or injunctive relief, any claim that would impose criminal liability, or any claim for damages exceeding the Indemnifying Party’s responsibility therefor under the terms hereof, and the Claiming Party shall have the right to defend, at the expense of the Indemnifying Party (to the extent such expenses constitute Losses validly claimed under Section 8.2 or Section 8.3, as applicable), any such Third Person Claim. The Indemnifying Party shall be liable to indemnify any Indemnified for the fees and expenses of counsel employed by the Claiming Party for any settlement period during which the Indemnifying Party has failed to assume the defense thereof (to the extent such fees and expenses constitute Losses validly claimed under Section 8.2 or Section 8.3, as applicable). If the Indemnifying Party does not expressly elect to assume the defense of any such Third Person Claim within the time period and otherwise in accordance with the first sentence of this Section 8.6.1, the Claiming Party shall have the sole right to assume the defense of such Third Person Claim. 8.6.2. Neither the Indemnifying Party, on the one hand, nor the Claiming Party, on the other hand, shall admit liability to, or settle, compromise or discharge any Third Person Claim effected without the prior written consent of the Indemnitor, other Party (which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor); provided, or however, if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding assumes the status defense of any Third Party Person Claim, including regarding strategythe Indemnifying Party may admit any liability with respect to, bona fide or enter into any settlement offers or mediations compromise or consent to the entry of any judgment with respect to such Third Person Claim if such settlement, 3063972 44 compromise or judgment (i) does not involve a finding or admission of wrongdoing, (ii) includes an unconditional written release by the applicable claimant or plaintiff of the Claiming Party from all liability in respect of such Third Person Claim and material results of discovery and investigation(iii) imposes no equitable remedies on the Claiming Party.

Third Person Claims. (a) Promptly after the assertion In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim against any Indemnified Party Person other than the parties to this Agreement (a "“Third Party Claim"Person”) that, in against the judgment of such Indemnified Party, may result in the incurrence within 10 days after receipt by such Indemnified Party of Losses for which written notice of the Third Person claim, such Indemnified Party would be entitled must provide written notice to indemnification pursuant the Indemnitor describing in reasonable detail the Third Person claim (provided, however, that any delay of the Indemnified Party in providing such written notice shall not affect the Indemnitor’s obligations hereunder except to this Agreementthe extent the Indemnitor has been adversely affected or prejudiced by such delay). Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within five business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Person claim, the Indemnified Party must notify the Indemnitor with a Claim Noticecopy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Person claim. (b) In the event of the initiation of any legal proceeding against the Indemnified Party by a Third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that no delay on the part of the Indemnified Party may participate in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to the extent that the Indemnitor has been materially prejudiced thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion to conduct the defense of any such Third Party Claimproceeding with counsel of its choice and at its expense; providedand provided further, that the Indemnitor shall not have the right to assume the defense of any Third Person claims to the extent that such claim (x) seeks non-monetary damages, (y) relates to a criminal action or involves claims by a Governmental Body or (z) seeks damages in excess of the maximum amount for which indemnification may be liable required to indemnify any Indemnified Party for any be provided by the Indemnitor pursuant to Article X. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Third legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party Claim effected without defends against or otherwise deals with any such proceeding, claim or demand, the prior written consent Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent shall of the other party, such consent not to be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to indemnification for the amount of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigation.

Third Person Claims. (a) Promptly after the assertion by any third party Buyer (or, from and after the Closing Date, ▇▇▇▇▇▇) has received notice of or has knowledge of any claim against any Indemnified Party by a person not a party to this Agreement (a "Third Party ClaimPerson") that, in or the judgment commencement of such Indemnified Party, may result in the incurrence any action or proceeding by such Indemnified Party of Losses a Third Person for which such Indemnified Party would be ▇▇▇▇▇▇ or the Buyer is entitled to indemnification pursuant under this Article VIII, the Buyer and ▇▇▇▇▇▇ shall, as a condition precedent to this Agreementa claim with respect thereto being made against the Escrow Funds, give the Sellers written notice of such Indemnified Party shall deliver to claim or the Indemnitor a Claim Noticecommencement of such action or proceeding specifying in reasonable detail the nature of such claim or action; provided, however, that no delay on failure to give such notification shall not affect the part of the Indemnified Party in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, indemnification provided hereunder except to the extent the Sellers shall have been actually prejudiced as a result of such failure. If the Sellers notify ▇▇▇▇▇▇ within 30 days from the receipt of the foregoing notice that they wish to defend against the Indemnitor has claim by the Third Person and if the reasonable estimated amount payable with respect to the claim, together with amounts reasonably estimated to be payable with respect to all other claims made against the Escrow Funds that have not been materially prejudiced therebysettled, and is less than the remaining balance of the Escrow Funds, then only to such extent. The Indemnified Party the Sellers shall have the right right, at their sole expense, to assume and control the defense of the claim by appropriate proceedings with counsel reasonably acceptable to ▇▇▇▇▇▇ and the Buyer. If the reasonably estimated amount payable with respect to the claim, together with amounts reasonably estimated to be payable with respect to all other claims made against the Escrow Funds that have not been settled, is greater than the remaining balance of the Escrow Funds, then ▇▇▇▇▇▇ and the Buyer (on the one hand) and the Sellers (on the other hand) shall cooperate in a joint defense of the claim, with the party whose risk of loss with respect to such claim is greater (taking into account the amount of the remaining Escrow Funds and the amount by which the amounts reasonably estimated to be payable with respect to the claim exceed such remaining Escrow Funds) being the lead counsel in the defense. If the Sellers do assume the defense of such claim, ▇▇▇▇▇▇ and the Buyer may participate in the defense, at their sole expense, provided that counsel for the Sellers shall act as lead counsel in all matters pertaining to the defense or settlement of such claims, suit or proceedings; provided, however, that ▇▇▇▇▇▇ and the Buyer shall control the defense of, but the Sellers may participate in the defense of (i) any Tax audit or proceeding that would reasonably be expected to have a Material Adverse Effect for any taxable period ending on or after the Closing Date and (ii) any claim or proceeding that in ▇▇▇▇▇▇' reasonable judgment would have a Material Adverse Effect apart from the financial impact. ▇▇▇▇▇▇ shall be entitled to payment from the Escrow Funds for the reasonable fees and expenses of its sole discretion to conduct counsel in defending a claim for any period during which the Sellers have not assumed the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party claim and for any settlement matter described in clause (i) or (ii) of the immediately preceding sentence, provided it is otherwise entitled to indemnification hereunder. Whether or not the Sellers shall have assumed the defense of any claim, neither ▇▇▇▇▇▇, the Buyer nor the Sellers shall make any settlement with respect to any such Third Party Claim effected claim, suit or proceeding without the prior written consent of the Indemnitorother, which consent shall not be unreasonably withheld, conditioned withheld or delayed. If any such action or It is understood and agreed that in situations where failure to settle a claim is settled with expeditiously could have an adverse effect on the prior written consent party wishing to settle, the failure of the Indemnitor, or if there be party not controlling the defense to act upon a final judgment request for the plaintiff in any consent to such action, the Indemnified Party settlement within ten (10) days of receipt of notice thereof shall be entitled deemed to indemnification constitute consent to such settlement for purposes of this Section 8.4. Such notice shall prominently specify (i) the amount material terms and conditions of any Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in such settlement, (ii) that immediate attention thereto is requested and (iii) that consent to such settlement will be deemed granted upon a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or mediations and material results of discovery and investigationfailure to respond timely.

Third Person Claims. (a) Promptly after the assertion Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third party of any claim Person against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result other than an Indemnifiable Proceeding (a “Third Person Claim”), shall notify the Indemnitor in writing, and in reasonable detail, of the incurrence Third Person Claim within ten (10) Business Days (or reasonably more promptly dependent upon the circumstances) after receipt by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreementwritten notice of the Third Person Claim. Thereafter, such the Indemnified Party shall deliver to the Indemnitor, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the Third Person Claim. Any notice of a Claim Noticeclaim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim is based and describe in reasonable detail (to the extent known) 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 Third Person Claim; provided, however, that no the failure or delay on the part of the Indemnified Party in notifying to give notice to the Indemnitor as provided in this Section 11.4 shall not relieve the Indemnitor of any liability or its obligations hereunder, hereunder except to the extent that the Indemnitor has shall have been materially prejudiced therebyby such failure. (b) In the event of the initiation of a Third Person Claim, and then only to such extent. The Indemnified Party the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any Proceeding which relates to any Losses and Expenses indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such Proceeding with counsel of its sole discretion to conduct choice (and the defense fees and expenses of any one such firm of counsel in connection with such Third Party ClaimClaim shall nonetheless be considered Expenses for the purposes of this Agreement); providedprovided further, however, that the Indemnitor shall not be liable entitled to indemnify assume or continue control of the defense of any Third Person Claim if (i) the Third Person Claim relates to or arises in connection with any criminal Proceeding, (ii) the Third Person Claim seeks an Order, injunction, equitable relief or other relief other than money damages against any Indemnified Party, (iii) the Indemnitor refuses to or fails to provide notice to the Indemnified Party that it irrevocably and unconditionally assumes responsibility for any the defense of the Third Party Claim under this Section 11.4, or (iv) the Indemnitor refuses to or fails to diligently defend the Third Party Claim after giving notice of its intent to assume the defense under this Section 11.4. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any Third Person Claim. To the extent the Indemnitor elects not to defend such Third Person Claim, or is not entitled to defend such Third Person Claim pursuant to this Section 11.4(b), and the Indemnified Party Claim effected defends against or otherwise deals therewith, the Indemnified Party may retain counsel at the expense of the Indemnitor, which counsel shall be reasonably acceptable to the Indemnitor, and control the defense of such Proceeding; provided, however, that the Indemnitor shall be obligated pursuant to this Section 11.4 to pay for only one firm of counsel for all Indemnified Parties. Neither the Indemnitor nor the Indemnified Party may settle any such Proceeding which settlement obligates the other party to pay money, to perform obligations (including to refrain from taking any actions) or to admit liability without the prior written consent of the Indemnitorother party, which such consent shall not to be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled refuse to indemnification consent to the settlement of any Third Person Claim, so long as only money damages are involved and there is no admission of liability or wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such Third Person Claim shall not exceed the amount for which the Third Person Claim could have been settled plus the amount of any Loss relating thereto. The expenses incurred by the Indemnified Party shall consult prior to the time of and in connection with the Indemnifying Party in a reasonable manner at reasonable times regarding proposed settlement to which it is entitled to indemnification. (c) To the status extent of any Third Party Claiminconsistency between this Section 11.4 and Section 8.1(c) (relating to Tax contests), including regarding strategy, bona fide settlement offers or mediations and material results the provisions of discovery and investigationSection 8.1(c) shall control with respect to Tax contests.