Common use of Non-Third Party Claims Clause in Contracts

Non-Third Party Claims. Parent will send a Notice of Claim to the Stockholder Representative promptly following discovery by any Parent Indemnitee of any matter that gives rise to a claim of indemnity pursuant hereto and that does not involve a Third Party Claim being asserted against it. Concurrently therewith Parent shall send a duplicate copy of such Notice of Claim to the Escrow Agent. Subject to Section 9.4(a), failure or delay in notifying the Stockholder Representative will not relieve the Company Securityholders of any liability they may have to the Parent Indemnitee, except and only to the extent that such failure or delay causes harm to the Company Securityholders with respect to such claim. The Stockholder Representative will reasonably cooperate and assist the Parent Indemnitee in determining the validity of the claim for indemnity. Nothing in this Agreement shall be deemed to prevent a Parent Indemnitee from making a claim hereunder for potential or contingent claims or demands that may be made by a third party; provided, that the Notice of Claim sets forth the specific basis for any such contingent claim to the extent then feasible and the Parent Indemnitee has reasonable grounds to believe that it is more likely than not that such a claim will be made by a third party and Parent has established a reserve for such a claim on its financial statements in accordance with GAAP; provided, further that with respect to any such claim made either after the date that is eighteen (18) months following the Closing Date [***], Parent may cause a portion of [***] equal or up to the Claimed Amount with respect thereto to be placed in a separate escrow account, established and paid for by Parent with the Escrow Agent, which shall remain available to indemnify Parent for such Losses until the resolution of such Indemnification Claim pursuant to the procedures set forth herein; provided, further that, for the avoidance of doubt, no Parent Indemnitee will be entitled to receive an indemnification payment (or exercise a right of setoff) pursuant to Section 9.4 with respect to Losses for matters specified in such a Notice of Claim unless and until it actually incurs such Losses.

Non-Third Party Claims. Parent will send a Notice of Claim to In the Stockholder Representative promptly following discovery by event any Parent Seller Indemnitee of any matter that gives rise to should have a claim of indemnity pursuant hereto and against any indemnitor under this Agreement that does not involve a Third Seller Third-Party Claim, Seller Indemnitee shall deliver a Claim being asserted against it. Concurrently therewith Parent shall send a duplicate copy Notice to such indemnitor promptly following discovery of such Notice of Claim any indemnifiable Loss, but subject to the Escrow Agenttime limit described in Section 8.3(b). Subject to Section 9.4(a)Such Claim Notice shall, failure or delay in notifying the Stockholder Representative will not relieve the Company Securityholders of any liability they may have to the Parent Indemnitee, except and only to the extent that known by Seller Indemnitee at the time, state in reasonable detail the amount or an estimated amount of such failure or delay causes harm claim, and shall specify the facts and circumstances, to the Company Securityholders extent known by Seller Indemnitee at the time, which form the basis (or bases) for such claim, and shall further specify the representations, warranties or covenants alleged to have been breached. Failure to give a Claim Notice shall not affect the indemnification provided hereunder except to the extent Buyer or Parent shall have been actually prejudiced as a result of such failure. Upon receipt of any Claim Notice, Buyer and Parent shall notify Seller Indemnitee as to whether Buyer or Parent accepts liability for any Loss. If Buyer or Parent disputes its liability with respect to such claim, as provided above, the parties shall attempt to resolve such dispute in accordance with the terms and provisions of Section 11.8. The Stockholder Representative will reasonably cooperate All amounts due to Seller Indemnitee as so finally determined in accordance with Section 11.8 shall be paid by wire transfer within thirty (30) days after such final determination. Exclusive Remedy. From and assist after the Parent Indemnitee Closing, except: (i) in determining the validity event of fraud or willful misrepresentation (in which case the parties shall be entitled to exercise all of their rights, and seek all damages available to them, under law or equity); or (ii) for specific performance of obligations to be performed after the Closing Date, the sole and exclusive remedy of the claim parties hereto for indemnity. Nothing in breach of this Agreement shall be deemed to prevent a Parent Indemnitee from making a claim hereunder for potential or contingent claims or demands that may be made by a third party; provided, that the Notice of Claim sets forth the specific basis for any such contingent claim to the extent then feasible and the Parent Indemnitee has reasonable grounds to believe that it is more likely than not that such a claim will be made by a third party and Parent has established a reserve for such a claim on its financial statements indemnification in accordance with GAAP; provided, further that with respect to any such claim made either after the date that is eighteen (18) months following the Closing Date [***], Parent may cause a portion of [***] equal or up to the Claimed Amount with respect thereto to be placed in a separate escrow account, established and paid for by Parent with the Escrow Agent, which shall remain available to indemnify Parent for such Losses until the resolution of such Indemnification Claim pursuant to the procedures set forth herein; provided, further that, for the avoidance of doubt, no Parent Indemnitee will be entitled to receive an indemnification payment (or exercise a right of setoff) pursuant to Section 9.4 with respect to Losses for matters specified in such a Notice of Claim unless and until it actually incurs such Lossesthis Article 8.

Non-Third Party Claims. Parent will send If a Notice of claim for Losses (a “Claim”) is to be made by any Indemnified Party pursuant to Section 8.1, such Indemnified Party shall give written notice (a “Claim Notice”) to the Stockholder Stakeholders’ Representative if the Claim Notice is being given by a Parent Indemnified Party and to Parent if the Claim Notice is being given by an Equityholder Indemnified Party, in each case, reasonably promptly following discovery by any Parent Indemnitee after such Indemnified Party becomes aware of any matter that gives fact, condition or event giving rise to Losses for which indemnification may be sought under Section 8.1, which Claim Notice shall specify in reasonable detail, to the extent known at such time, the amount of the Claim, the date (if any) such item was incurred or suffered and the basis for indemnification under this Article VIII. The failure of any Indemnified Party to give timely notice hereunder shall not affect such Indemnified Party’s rights to indemnification hereunder, except to the extent the applicable Indemnifying Parties are actually and materially prejudiced by such delay or failure. If the applicable Indemnifying Parties notify the Indemnified Party in writing that they do not dispute the claim described in such Claim Notice or fail to notify the Indemnified Party in writing within thirty (30) days following receipt of the Claim Notice that they dispute the Claim described in such Claim Notice, the Losses identified in the Claim Notice will be conclusively deemed a claim liability of indemnity pursuant hereto and that does not involve the Indemnifying Party under Sections 8.1(a) or (b), as applicable, and, in the case of a Third Party Claim being asserted against it. Concurrently therewith Notice delivered by the Parent Indemnified Parties, the Parent shall send a duplicate copy of such Notice of Claim be entitled to instruct the Escrow Agent. Subject Agent to Section 9.4(a), failure or delay in notifying the Stockholder Representative will not relieve the Company Securityholders of any liability they may have release to the Parent Indemnitee, except and only Indemnified Parties the amount of such Losses pursuant to the extent that such failure or delay causes harm to terms of the Company Securityholders Escrow Agreement. If the applicable Indemnifying Parties have timely disputed their liability with respect to such claim. The Stockholder Representative will reasonably cooperate and assist Claim or the Parent Indemnitee estimated amount of such Losses pursuant to this Section 8.3, the parties shall attempt in determining good faith to resolve such dispute; provided that if such dispute has not been resolved within fifteen (15) days after receipt by the validity applicable Indemnified Party of notice of such dispute, then the claim for indemnity. Nothing in this Agreement shall be deemed to prevent a Parent Indemnitee from making a claim hereunder for potential or contingent claims or demands that may be made by a third party; provided, that the Notice of Claim sets forth the specific basis for any such contingent claim to the extent then feasible Indemnifying Party and the Parent Indemnitee has reasonable grounds to believe that it is more likely than not that such a claim will be made by a third party and Parent has established a reserve for such a claim on its financial statements Indemnified Party may seek legal redress in accordance with GAAP; providedArticle IX. Notwithstanding anything to the contrary contained herein, further that this Section 8.3(a) shall not apply with regard to the Specified Litigation Matters or reimbursement of an amount paid with respect to any such claim made either after the date that is eighteen (18Section 8.1(a)(iv) months following the Closing Date [***], Parent may cause a portion of [***] equal or up to the Claimed Amount with respect thereto to be placed in a separate escrow account, established and paid for by Parent with the Escrow Agent, which shall remain available to indemnify Parent for such Losses until the resolution of such Indemnification Claim pursuant to the procedures set forth herein; provided, further that, for the avoidance of doubt, no Parent Indemnitee will be entitled to receive an indemnification payment (or exercise a right of setoff) pursuant to Section 9.4 with respect to Losses for matters specified in such a Notice of Claim unless and until it actually incurs such Losses8.1(a)(v).

Non-Third Party Claims. Parent will send If a Notice of Claim claim for Losses (a “Claim”) is to the Stockholder Representative promptly following discovery be made by any Parent Indemnitee of any matter that gives rise to a claim of indemnity pursuant hereto and that does not involve a Third Party third party, such Indemnitee shall give written notice (a “Claim being asserted against it. Concurrently therewith Parent shall send a duplicate copy of such Notice of Claim to the Escrow Agent. Subject to Section 9.4(a), failure or delay in notifying the Stockholder Representative will not relieve the Company Securityholders of any liability they may have Notice”) to the Parent Indemniteeif the Claim Notice is being given by a Buyer Indemnified Party and to Buyer and Buyer Parent if the Claim Notice is being given by a Seller Indemnified Party, except and only in each case, promptly after such Indemnitee becomes aware of any fact, condition or event giving rise to Losses for which indemnification may be sought under Section 11.02(a) or 11.02(b), which Claim Notice shall specify in reasonable detail, to the extent that reasonably practicable at such time, the amount of the Claim and the Losses included in the amount so stated, the date (if any) such item was incurred or suffered, the basis for any anticipated liability and the nature of the misrepresentation, default, breach of warranty or breach of covenant or claim to which each such item is related. The failure or delay causes harm of any Indemnitee to give timely notice hereunder shall not affect such Indemnitee’s rights to indemnification hereunder, except to the Company Securityholders extent the applicable Indemnitor is actually prejudiced by such delay or failure, and the amount of reimbursement to which the Indemnitee is entitled shall be reduced by the amount, if any, by which the Indemnitee’s Losses would have been less had such Claim Notice been timely given. If the applicable Indemnitor notifies the Indemnitee that it does not dispute the claim described in such Claim Notice or fails to respond within 30 days following receipt of such Claim Notice, the Losses identified in the Claim Notice will be conclusively deemed a liability of the Indemnitor under Section 11.02(a) or 11.02(b), as applicable. If the applicable Indemnitor disputes its liability with respect to such claim. The Stockholder Representative will reasonably cooperate and assist Claim or the Parent Indemnitee estimated amount of such Losses pursuant to this Section 11.05, the parties shall attempt in determining the validity of the claim for indemnity. Nothing in this Agreement shall be deemed good faith to prevent a Parent Indemnitee from making a claim hereunder for potential or contingent claims or demands that may be made by a third partyresolve such dispute; provided, that if such dispute has not been resolved within 90 days following receipt of such Claim Notice, then the Notice of Claim sets forth the specific basis for any such contingent claim to the extent then feasible Indemnitor and the Parent Indemnitee has reasonable grounds to believe that it is more likely than not that such a claim will be made by a third party and Parent has established a reserve for such a claim on its financial statements may seek legal redress in accordance with GAAP; provided, further that with respect to any such claim made either after the date that is eighteen (18) months following the Closing Date [***], Parent may cause a portion terms of [***] equal or up to the Claimed Amount with respect thereto to be placed in a separate escrow account, established and paid for by Parent with the Escrow Agent, which shall remain available to indemnify Parent for such Losses until the resolution of such Indemnification Claim pursuant to the procedures set forth herein; provided, further that, for the avoidance of doubt, no Parent Indemnitee will be entitled to receive an indemnification payment (or exercise a right of setoff) pursuant to Section 9.4 with respect to Losses for matters specified in such a Notice of Claim unless and until it actually incurs such Lossesthis Agreement.

Non-Third Party Claims. In the event a Parent will send a Notice of Claim to the Stockholder Representative promptly following discovery by any Parent Indemnitee of any matter that gives rise to Indemnified Party has a claim of indemnity pursuant hereto and hereunder that does not involve a Third Party Claim claim being asserted against it. Concurrently therewith or sought to be collected by a third party, the Parent Indemnified Party shall with reasonable promptness send a duplicate copy of such Claim Notice of Claim to the Escrow Agent. Subject to Section 9.4(a), failure or delay in notifying the Stockholder Representative will not relieve the Company Securityholders of any liability they may have to the Parent Indemnitee, except and only to the extent that such failure or delay causes harm to the Company Securityholders with respect to such claim. The Stockholder Representative will reasonably cooperate and assist the Parent Indemnitee in determining the validity of the claim for indemnity. Nothing in this Agreement shall be deemed to prevent a Parent Indemnitee from making a claim hereunder for potential or contingent claims or demands that may be made by a third party; provided, that the Notice of Claim sets forth the specific basis for any such contingent claim to the extent then feasible Principals, as Shareholder Representative of the Company Stockholders and the Escrow Agent (if applicable). If both the Principals, as Shareholder Representative for the Company Stockholders do not notify the Parent Indemnitee has reasonable grounds Indemnified Party within ten (10) calendar days from the date of receipt of such Claim Notice that the indemnifying party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the indemnifying party hereunder. In case the Principals, as Shareholder Representative for the Company Stockholders shall object in writing to believe that it is more likely than not that such a any claim will be made by a third party and Parent has established a reserve for such a claim on its financial statements in accordance with GAAP; providedthis Section 6.03(b), further that the Parent Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Principals, as Shareholder Representative of the Company Stockholders. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the parties shall attempt in good faith for sixty (60) calendar days to agree upon the rights of the respective parties with respect to each of such claims. If the Parent Indemnified Parties and the Principals, as Shareholder Representative of the Company Stockholders should so agree, a memorandum setting forth such agreement shall be prepared and signed by the Parent Indemnified Parties and the Principals, as Shareholder Representative of the Company Stockholders, which agreement shall be binding on all of the Company Stockholders and the Company Stockholders agree that the Principals shall have the power to act for all of them as their respective Shareholder Representative. If the parties do not so agree, and a claim has been made against the Escrow Fund, the Escrow Agent shall refrain from disbursing any such claim made either after the date that is eighteen (18) months following the Closing Date [***], Parent may cause a portion of [***] equal or up to the Claimed Amount with respect thereto to be placed in a separate escrow account, established and paid for by Parent with the Escrow Agent, which shall remain available to indemnify Parent for such Losses Fund until the resolution of such Indemnification Claim pursuant to dispute in the procedures set forth herein; provided, further that, for the avoidance form of doubt, no Parent Indemnitee will be entitled to receive (i) a final written decision of an indemnification payment arbitrator or (or exercise ii) a right final non-appealable order of setoff) pursuant to Section 9.4 with respect to Losses for matters specified in such a Notice court of Claim unless and until it actually incurs such Lossescompetent jurisdiction.

Non-Third Party Claims. Parent will send If a Notice of Claim claim for Losses (a “Claim”) is to the Stockholder Representative promptly following discovery be made by any Parent Indemnitee of any matter that gives rise to a claim of indemnity pursuant hereto and Indemnified Party that does not involve a Third third party, such Indemnified Party shall give written notice (a “Claim being asserted against it. Concurrently therewith Parent shall send a duplicate copy of such Notice of Claim Notice”) to the Escrow Agent. Subject Seller Representative if the Claim Notice is being given by a Buyer Indemnified Party and to Section 9.4(a)Buyer if the Claim Notice is being given by an Seller Indemnified Party, failure or delay in notifying the Stockholder Representative will not relieve the Company Securityholders each case, within a reasonable time after such Indemnified Party becomes aware of any liability they fact, condition or event giving rise to Losses for which indemnification may have to the Parent Indemniteebe sought under Section 9.2, except and only which Claim Notice shall specify in reasonable detail, to the extent that reasonably known and practicable at such time, the amount of the Claim and each individual item of Loss included in the amount so stated and the basis for indemnification. The failure or delay causes harm of any Indemnified Party to give timely notice hereunder shall not affect such Indemnified Party’s rights to indemnification hereunder, except to the Company Securityholders extent the applicable Indemnifying Parties are actually prejudiced by such delay or failure, in which case the amount of reimbursement to which the Indemnified Party is entitled shall be reduced by the amount, if any, by which the Indemnified Party’s Losses would have been less had such Claim Notice been timely given. If the applicable Indemnifying Parties notify the Indemnified Party that they do not dispute the Claim described in such Claim Notice or fail to respond within thirty (30) days following receipt of such Claim Notice, the Losses identified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under Section 9.2(a) or Section 9.2(b), as applicable. If the applicable Indemnifying Parties dispute their liability with respect to such claim. The Stockholder Representative will reasonably cooperate and assist Claim or the Parent Indemnitee estimated amount of such Losses pursuant to this Section 9.4 within thirty (30) days following receipt of such Claim Notice, the parties shall attempt in determining the validity of the claim for indemnity. Nothing in this Agreement shall be deemed good faith to prevent a Parent Indemnitee from making a claim hereunder for potential or contingent claims or demands that may be made by a third partyresolve such dispute; provided, that if such dispute has not been resolved within sixty (60) days following receipt of such Claim Notice, then the Notice of Claim sets forth the specific basis for any such contingent claim to the extent then feasible Indemnifying Parties and the Parent Indemnitee has reasonable grounds to believe that it is more likely than not that such a claim will be made by a third party and Parent has established a reserve for such a claim on its financial statements Indemnified Parties may seek legal redress in accordance with GAAP; providedArticle X. In the event the parties seek legal redress, further that with respect to any such claim made either after the date that is eighteen (18) months following the Closing Date [***], Parent may cause a portion of [***] equal or up to the Claimed Amount with respect thereto to be placed in a separate escrow account, established and paid for by Parent with the Escrow Agent, which prevailing party shall remain available to indemnify Parent for such Losses until the resolution of such Indemnification Claim pursuant to the procedures set forth herein; provided, further that, for the avoidance of doubt, no Parent Indemnitee will be entitled to receive an indemnification payment recover from the other party its expenses (or exercise a right including reasonable attorney’s fees) incurred in connection with any such action. In the event the Seller Representative is such prevailing party such expenses shall be delivered to the Seller Representative to be held in escrow as part of setoff) pursuant to Section 9.4 the Seller Representative Amount in accordance with respect to Losses for matters specified in such a Notice the terms of Claim unless and until it actually incurs such Lossesthis Agreement.

Non-Third Party Claims. Parent will send A Buyer Indemnitee shall deliver a Claims Notice of Claim to the Stockholder Representative Indemnitor in accordance with Section 7.4(b) promptly following upon its discovery by any Parent Indemnitee of any matter that gives rise for which the Indemnitor may be liable to a claim of indemnity pursuant hereto and the Buyer Indemnitee hereunder that does not involve a Third Party Claim being asserted against it. Concurrently therewith Parent Claim, which Claims Notice shall send a duplicate copy of also state (a) that the Buyer Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Notice of Claim Buyer Indemnitee is entitled to indemnification pursuant to this Agreement, and (b) the Escrow Agent. Subject to Section 9.4(a)date such item was paid or accrued, failure if such item has been paid or delay in notifying the Stockholder Representative will not relieve the Company Securityholders of any liability they may have to the Parent Indemnitee, except and only to the extent that such failure or delay causes harm to the Company Securityholders with respect to such claimaccrued. The Stockholder Representative will Buyer Indemnitee shall reasonably cooperate and assist the Parent Indemnitee Indemnitor in determining the validity of the any claim for indemnityindemnity by the Buyer Indemnitee and in otherwise resolving such matters. Nothing Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters and furnishing Employees to assist in the investigation, defense and resolution of such matters; provided that, the Indemnitor shall be obligated to reimburse the Buyer Indemnitees for the amount of any reasonable and documented costs of photocopying documents, records and information. After the delivery of any Claims Notice pursuant to this Agreement Section 7.5, the amount of indemnification to which a Buyer Indemnitee shall be entitled under this Article 7 shall be determined by (i) the written agreement of the Buyer Indemnitee and the Indemnitor, (ii) a final Governmental Order of any Governmental Authority of competent jurisdiction, or (iii) any other means to which the Buyer Indemnitee and the Indemnitor shall agree. The Governmental Order 738336390 of a court shall be deemed to prevent a Parent Indemnitee from making a claim hereunder final when the time for potential appeal, if any, shall have expired and no appeal shall have been taken or contingent claims or demands that may be made by a third party; provided, that the Notice of Claim sets forth the specific basis for any such contingent claim to the extent then feasible and the Parent Indemnitee has reasonable grounds to believe that it is more likely than not that such a claim will be made by a third party and Parent has established a reserve for such a claim on its financial statements in accordance with GAAP; provided, further that with respect to any such claim made either after the date that is eighteen (18) months following the Closing Date [***], Parent may cause a portion of [***] equal or up to the Claimed Amount with respect thereto to be placed in a separate escrow account, established and paid for by Parent with the Escrow Agent, which when all appeals taken shall remain available to indemnify Parent for such Losses until the resolution of such Indemnification Claim pursuant to the procedures set forth herein; provided, further that, for the avoidance of doubt, no Parent Indemnitee will be entitled to receive an indemnification payment (or exercise a right of setoff) pursuant to Section 9.4 with respect to Losses for matters specified in such a Notice of Claim unless and until it actually incurs such Losseshave been finally determined.

Non-Third Party Claims. Parent will send The indemnity obligations of an Indemnifying Person pursuant to Section 8.2 arising out of or relating to any Indemnity Claim by a Notice Company Indemnified Person, other than in respect of Claim to the Stockholder Representative promptly following discovery by any Parent Indemnitee of any matter that gives rise to a claim of indemnity pursuant hereto and that does not involve a Third Party Claim, shall be subject to the following terms and conditions: (a) A Company Indemnified Person seeking indemnification under Article VIII shall give the Indemnifying Person notice (each such notice, a “Notice of Claim”) of such Indemnity Claim being asserted against it. Concurrently therewith Parent shall send (each a duplicate copy “Non-Third Party Claim”) stating (to the extent known or reasonably anticipated) the nature and basis of such Non-Third Party Claim and, to the extent available to the Company Indemnified Person, the amount thereof (the “Claim Amount”); provided that, the failure to give such Notice of Claim to shall not affect the Escrow Agent. Subject to Section 9.4(a), failure or delay in notifying the Stockholder Representative will not relieve rights of the Company Securityholders of any liability they may have to the Parent IndemniteeIndemnified Person hereunder, except and only to the extent that the Indemnifying Person shall have been actually and materially prejudiced by reason of such failure failure. Any Notice of Claim delivered pursuant to this Section 8.4(a) may be supplemented, and any Claim Amount may be increased, added or delay causes harm supplemented, at a later date by the Company Indemnified Person. (b) If the Indemnifying Person objects to such Non-Third Party Claim or Claim Amount, or any portion thereof, as specified in such Notice of Claim, the Indemnifying Person shall, within 30 days after receipt of any such Notice of Claim, deliver to the Company Securityholders with respect Indemnified 26 (a) No Indemnifying Person shall have any obligation to indemnify any Company Indemnified Person unless and until the aggregate Indemnity Losses incurred or suffered by all Company Indemnified Persons entitled to indemnification from such claim. The Stockholder Representative will reasonably cooperate and assist Indemnifying Person thereunder exceed $2,500,000 (the Parent Indemnitee “Deductible”), in determining the validity which case, such Indemnifying Person shall be responsible for such Indemnity Losses in excess of the claim Deductible, and after the aggregate Indemnity Losses paid by such Indemnifying Person exceed (A) $275,000,000, in the case of Embraer, or (B) $275,000,000, in the case of Boeing (in either case, the “Cap”), which amount shall be reduced dollar-for-dollar for indemnityEmbraer or Boeing, as applicable, for payments made by such party arising out of any indemnification claims made under the LLC Agreement; provided, that neither the Deductible nor the Cap shall apply to any amounts payable in respect of Indemnity Losses arising from or related to (x) any inaccuracy or breach of any Fundamental Representation or (y) any Indemnity Claim based on Fraud, although such amounts shall be aggregated with all other Indemnity Losses to determine if indemnification obligations exceed the Deductible, and no such amounts shall be counted towards the Cap. (b) For purposes of this Article VIII, when (i) determining whether any breach or inaccuracy of a representation or warranty in this Agreement has occurred and (ii) calculating the amount of any Indemnity Losses relating thereto, in each case, all references as to materiality or other similar materiality-based qualifications set forth therein shall be disregarded. (c) In the event any Company Indemnified Person becomes aware of any breach giving rise to an indemnification obligation of any Indemnifying Person under Section 8.2, such Company Indemnified Person shall take commercially reasonable steps to, in its reasonable judgment, mitigate any Indemnity Losses which form the basis of such indemnification obligation. Any and all amounts paid or payable by a Company Indemnified Person in connection with any mitigation required by this Section 8.3(c) shall constitute Indemnity Losses. Nothing in this Agreement shall be deemed Section 8.3(c) is intended to prevent a Parent Indemnitee from making a claim hereunder for potential or contingent claims or demands that may be made by a third party; provided, that the Notice of Claim sets forth the specific basis for supersede any such contingent claim obligations under Law to the extent then feasible and the Parent Indemnitee has reasonable grounds to believe that it is more likely than not that such a claim will be made by a third party and Parent has established a reserve for such a claim on its financial statements in accordance with GAAP; provided, further that with respect to any such claim made either after the date that is eighteen (18) months following the Closing Date [***], Parent may cause a portion of [***] equal or up to the Claimed Amount with respect thereto to be placed in a separate escrow account, established and paid for by Parent with the Escrow Agent, which shall remain available to indemnify Parent for such Losses until the resolution of such Indemnification Claim pursuant to the procedures set forth herein; provided, further that, for the avoidance of doubt, no Parent Indemnitee will be entitled to receive an indemnification payment (or exercise a right of setoff) pursuant to mitigate Indemnity Losses. Section 9.4 with respect to Losses for matters specified in such a Notice of Claim unless and until it actually incurs such Losses.8.4

Non-Third Party Claims. Parent will send In the event an Indemnified Party claims a Notice of Claim right to the Stockholder Representative promptly following discovery by any Parent Indemnitee of any matter that gives rise payment pursuant to a claim of indemnity pursuant hereto and that does this Article IX not involve involving a Third Party Claim being asserted against it. Concurrently therewith Parent Claim, such Indemnified Party shall send a duplicate copy written notice of such Notice of claim (“Claim Notice”) to the Escrow Agentto the Purchaser, if the Purchaser is the Indemnifying Party, or Holdco, if the Sellers are the Indemnifying Parties. Subject The Claim Notice shall describe in reasonable detail the facts giving rise, or that could reasonably be expected to give rise, to the claim for indemnification hereunder that is the subject to the Claim Notice. The Claim Notice shall include (if and to the extent then known) the amount and the method of computation of the amount of such claim, and a reference to the provision or provisions of this Agreement or any agreement, certificate or instrument executed pursuant hereto or in connection herewith upon which such claim is based and all material documentation relevant to the claim (to the extent not previously provided under this Section 9.4(a9.3(b), ). The failure or delay in notifying by any Indemnified Party to so notify the Stockholder Representative will not Indemnifying Party shall relieve the Company Securityholders of Indemnifying Party from any liability they that it may have to the Parent Indemniteesuch Indemnified Party with respect to any claim made pursuant to this Section 9.3(b) if, except and only to the extent that that, such failure or delay causes harm to so notify the Indemnifying Party materially prejudices the Indemnifying Party. The Indemnifying Party (acting through Holdco, in the case of indemnification sought by a Purchaser Indemnified Party, and acting through the Purchaser, in the case of indemnification sought by a Seller Indemnified Party) shall have thirty (30) days after the giving of any proper Claim Notice pursuant hereto to (i) agree to the Company Securityholders with respect amount or method of determination set forth in the Claim Notice and to pay or cause to be paid such amount to such claimIndemnified Party in immediately available funds, or (ii) provide such Indemnified Party with written notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the “Indemnity Claim Dispute Notice”). The Stockholder Representative will reasonably cooperate For a period of thirty (30) days after the giving of any Indemnity Claim Dispute Notice, the Indemnifying Party and assist the Parent Indemnitee Indemnified Party shall negotiate in determining good faith to resolve the validity of matter. In the claim for indemnity. Nothing in this Agreement shall be deemed to prevent a Parent Indemnitee from making a claim hereunder for potential or contingent claims or demands that may be made by a third party; provided, event that the Notice of Claim sets forth the specific basis for any such contingent claim to the extent then feasible and the Parent Indemnitee has reasonable grounds to believe that it controversy is more likely than not that such a claim will be made by a third party and Parent has established a reserve for such a claim on its financial statements in accordance with GAAP; provided, further that with respect to any such claim made either resolved within thirty (30) days after the date that the Indemnity Claim Dispute Notice is eighteen (18) months following given, the Closing Date [***], Parent Indemnifying Party and the Indemnified Party may cause a portion of [***] equal or up thereupon proceed to pursue any and all available remedies at law. If the Indemnifying Party agrees to the Claimed Amount with respect thereto to be placed in a separate escrow account, established and paid for by Parent with the Escrow Agent, which shall remain available to indemnify Parent for such Losses until the resolution of such Indemnification Claim Notice pursuant to the procedures set forth herein; providedimmediately preceding clause (i) or fails to provide a timely Indemnity Claim Dispute Notice pursuant to the immediately preceding clause (ii), further thatthen promptly following the date the applicable Purchaser Loss or Seller Loss becomes finally determined (x) if the Indemnified Party is a Purchaser Indemnified Party, for the avoidance of doubt, no Parent Indemnitee will then such Purchaser Indemnified Party shall be entitled to receive an indemnification payment the applicable amount set forth in the Claim Notice in accordance with Section 9.5(c), and Holdco shall promptly execute a written instruction to the Escrow Agent to release any applicable amount (up to the maximum amount contained in the Escrow Fund) to such Indemnified Party, or exercise (y) if the Indemnified Party is a right of setoff) pursuant to Section 9.4 with respect to Losses for matters specified Seller Indemnified Party, then the Purchaser shall, using its own funds, pay the Seller Indemnified Party the amount set forth in such a Notice of the Claim unless and until it actually incurs such LossesNotice.