Common use of Payment of Claims Clause in Contracts

Payment of Claims. If any amount is determined, agreed or deemed agreed to be owed to any Parent Indemnified Party in accordance with this Section 10.6, then, subject to Section 11.1(c), (i) first, Parent shall permanently withhold a portion of the Holdback Amount with a value (based on FMV) equal to such amount (or, if such amount exceeds the then remaining Holdback Amount, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Payment), and (ii) second, if the remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), then, subject to the limitations contained in Section 10.4, each Company Member shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed pay such Company Member’s Pro Rata Share of the amount owed, to such Parent Indemnified Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) in cash, or (ii) prior to the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance of Parent Shares with a value (based on FMV) equal to such amount.

Payment of Claims. If any amount is determined, agreed or deemed agreed to be owed to any Parent Indemnified Party in accordance with this Section 10.610.5, then, subject to Section 11.1(c), then (i) first, Parent shall permanently withhold be entitled to receive a portion of the Holdback Escrow Amount with a value (based on FMV) equal to such amount in which case, the Representative and Parent shall execute a joint written instruction to the Escrow Agent instructing the Escrow Agent to release to Parent from the Escrow Fund such amounts (or, if such amount exceeds the amounts then remaining Holdback Amountin the Escrow Fund, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Paymentremaining Escrow Fund), and (ii) second, if the amounts remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, in the Escrow Fund are insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (Party, or if the Holdback Amount, including amounts that would otherwise become subject to all of the Holdback Amount, Escrow Fund has been previously permanently withheld forfeited to Parent or released to the Indemnifying Parties pursuant to Section 10.8)10.7, then, subject to the limitations contained in Section 10.410.3, each Company Member shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed pay such Company Member’s Pro Rata Share of the amount owed, to such Parent Indemnified Indemnifying Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) in cash, or (ii) prior to the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such Indemnifying Party’s Pro Rata Share of the amount owed to such Company Indemnified Party (the “Owed Amount”). If an Indemnifying Party is an Accredited Investor, the Owed Amount shall be satisfied by the delivery of cash and Parent Shares in the same proportion as such Indemnifying Party’s Merger Consideration was paid at the Closing with an aggregate value equal to the Owed Amount (valuing such Parent Shares based on their respective Pro Rata Sharethe Reference Price for such purpose, and with the amount attributable to any fractional shares to be paid in cash). Parent If an Indemnifying Party is an Unaccredited Investor the Owed Amount shall satisfy be satisfied by the payment of cash by such Indemnifying Party. The Representative hereby agrees to give notice to each Indemnifying Party of such payment obligation within three (A3) in cash orBusiness Days of such determination, (B) prior to the QA Closing, at Parent’s option, through issuance of Parent Shares with a value (based on FMV) equal to such amountagreement or deemed agreement.

Payment of Claims. If and to the extent the CHC Indemnitees are entitled to recover any amounts pursuant to this ARTICLE VII (other than Losses arising out of a breach or inaccuracy of a Fundamental Representation), such amounts shall be recovered only by reducing the principal amount is determined, agreed or deemed agreed of CHC Convertible Debentures to be owed issued by CHC pursuant to Section 1.7(b) by a principal amount of CHC Convertible Debentures with a Value equal to such amounts. Notwithstanding anything in this Agreement to the contrary, the CHC Indemnitees shall be entitled to recover any Parent Indemnified Party Losses arising out of a breach of inaccuracy of a Fundamental Representation (i) first by reducing the principal amount of CHC Convertible Debentures to be issued by CHC pursuant to Section 1.7(b) by a principal amount of CHC Convertible Debentures with a Value up to the Set-Off Amount in accordance with the foregoing terms, (ii) second, from the Skyline Members pro rata pursuant to the percentages set forth in Section 1.7(a)(i) of the Consideration Spreadsheet by set-off and cancellation against the outstanding CHC Convertible Debentures with a Value equal to such Losses in accordance with the Consideration Spreadsheet, (iii) third, from the Skyline Members pro rata pursuant to the percentages set forth in Section 1.7(a)(i) of the Consideration Spreadsheet by setoffs and cancellation against the outstanding CHC Term Notes in a principal amount equal to such Loses, and (iv) fourth, from the Skyline Members pro rata pursuant to the percentages set forth in Section 1.7(a)(i) of the Consideration Spreadsheet in cash. Notwithstanding anything herein or otherwise to the contrary, the sole remedy for CHC Indemnitees to recover any consideration for a breach of a Fundamental Representation is offset against the CHC Convertible Debentures, CHC Term Debentures and cash issuable, issued or paid to the Skyline Members. If and to the extent the Skyline Indemnitees are entitled to recover any amounts pursuant to this Section 10.6, then, subject to Section 11.1(cARTICLE VII (other than Losses arising out of a breach or inaccuracy of a Fundamental Representation), such amounts shall be recovered only by the issuance and delivery by CHC of shares of CHC Common Stock having a Value equal to such amounts. Notwithstanding anything in this Agreement to the contrary, the Skyline Indemnitees shall be entitled to recover any Losses arising out of a breach of inaccuracy of a Fundamental Representation by CHC (i) first, Parent shall permanently withhold a portion of first from the Holdback Amount with a value (based on FMV) equal to such amount (or, if such amount exceeds the then remaining Holdback Amount, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject shares of CHC Common Stock having a Value of up to $2,000,000 in accordance with the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Payment)foregoing terms, and (ii) second, if the remaining Holdback Amount and such setoff rights are, as reasonably determined in cash by Parent, insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject wire transfer of immediately available funds to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), then, subject to the limitations contained in Section 10.4, each Company Member shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed pay such Company Member’s Pro Rata Share of the amount owed, to such Parent Indemnified Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) in cash, or (ii) prior to the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within Skyline Members no later than three (3) Business Days following the determination of any such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject pursuant to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance terms of Parent Shares with a value (based on FMV) equal to such amountthis Agreement.

Payment of Claims. If any amount is determined, agreed or deemed agreed to be owed to any Parent Indemnified Party Person in accordance with this Section 10.69.8, then, subject to Section 11.1(c), then (i) firstwithin three Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Representative shall permanently withhold a portion execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Parent Indemnified Person from the Escrow Fund (to the extent of the Holdback Amount with a value (based on FMVEscrow Fund) equal to such amount (or, if such amount exceeds the then remaining Holdback Amount, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Payment), and (ii) second, if the amount remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, in the Escrow Fund is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Parent Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8)Person, then, subject to the limitations contained in Section 10.49.4, each Company Member Indemnifying Party shall, within ten (10) Business Days 10 days following the date such amount is determined, agreed or deemed agreed to be owed owed, pay such Company MemberIndemnifying Party’s Pro Rata Share of the amount owed, of such shortfall to such Parent Indemnified Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) in cash, or (ii) prior to the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreementPerson. If any amount is determined, agreed or deemed agreed to be owed to any Company Securityholder Indemnified PartyPerson in accordance with this Section 9.8, then, subject to the limitations contained in Section 10.4, Parent shall, then within ten (10) three Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay Parent shall deliver such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA ClosingPaying Agent, at Parent’s optionsubject to Section 9.10, through issuance of Parent Shares with a value for further distribution (based on FMVeach Company Indemnifying Party’s Equityholder Pro Rata Share of the Escrow Amount) equal to the Company Indemnifying Parties (other than the holders of Withholding Options), and, on behalf of the holders of Withholding Options, to the Surviving Corporation or an Affiliate thereof, for subsequent release to such amountholders of Withholding Options as part of the second regularly scheduled payroll cycle of the Surviving Corporation or such Affiliate following such release.

Payment of Claims. If In the event of any amount is determinedbona fide claim for indemnification hereunder, agreed or deemed agreed to be owed to any Parent the Indemnified Party will advise the Indemnifying Party that it is required to provide indemnification therefor in accordance with this Section 10.6, then, subject writing. With respect to Section 11.1(c), (i) first, Parent shall permanently withhold a portion of the Holdback Amount with a value (based on FMV) equal to such amount (orliquidated claims for Damages, if within thirty (30) days the Indemnifying Party has not contested such amount exceeds the then remaining Holdback Amountclaim in writing, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Payment), and (ii) second, if the remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, insufficient to cover Indemnifying Party will pay the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), thenthereof, subject to the limitations contained set forth in Section 10.49.5 and, each Company Member shallexcept as set forth in the following sentence of this Section 9.4, within ten (10) Business Days following days after the date expiration of such amount is determined, agreed or deemed agreed period. In order to be owed pay such Company Member’s Pro Rata Share satisfy any indemnification obligations of the Company, the Company Stockholders and the Participating Rights Holders pursuant to this Article 9, Parent, the Surviving Corporation and their respective Affiliates (and the respective directors, officers, employees and representatives of any of them) shall have the right to recover Damages that have been incurred, or may be incurred, first from the Indemnity Holdback Amount which Parent is entitled to withhold pursuant to Section 1.7(d) and then by setting off any indemnity payments owed by Parent and the Surviving Corporation pursuant to Section 9.1. In the event that the aggregate of the Indemnity Holdback Amount which Parent is entitled to withhold pursuant to Section 1.7(d) and any indemnity payments owed by Parent and the Surviving Corporation pursuant to Section 9.1 is less than the Damages incurred by any or all of Parent, the Surviving Corporation and their respective Affiliates (and the respective directors, officers, employees and representatives of any of them), none of such Indemnified Parties shall have any further recourse to any of the Company Stockholders or the Participating Rights Holders. Notwithstanding anything to the contrary herein and for purposes of clarification, except in the case of fraud, the liability of the Company Stockholders and the Participating Rights Holders, including indemnification obligations and claims of Parent and the Surviving Corporation and any Affiliate thereof and their respective Representatives for Damages shall be limited solely to (and payable in the order set forth in the third sentence of this Section 9.4) (x) any indemnity payments owed by Parent and the Surviving Corporation pursuant to Section 9.1 and (y) the Maximum Indemnification Amount (as defined in Section 9.5(b)) and payable solely from monies in the Indemnity Holdback Amount, as adjusted downward if the FDA Milestone Payment is not made, and once any payment from the Indemnity Holdback Amount is released to the Participating Rights Holders (or the Closing Amount has been paid to the Participating Rights Holders, except in the case of fraud by the Company), Parent, the Surviving Corporation and any Affiliate thereof, and their respective Representatives, shall have no further claim to any amount owedunder this Agreement from the Company Stockholders and the Participating Rights Holders other than Parent and Surviving Corporation offsets against indemnification payments pursuant to Section 9.1. All such recoveries from the Indemnity Holdback Amount and offsets against indemnification payments shall be made on a pro rata basis from all Participating Rights Holders in the same proportions in which they would otherwise be entitled to receive payments of the Holdback Amount or indemnification payments, except that, to the extent of any claim arising under Section 9.2(a) that was caused by a breach of any Participating Rights Holder, such Parent Indemnified Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount recoveries shall be satisfied made severally from the Participating Rights Holder responsible for such breach and no other Participating Rights Holder shall have any liability. Any indemnification obligations of Parent or Merger Sub pursuant to this Article 9 shall be paid, at Parent’s election, (i) in cash, or (ii) prior to by issuing Parent Common Stock (each share of which shall be valued for such purpose at the QA Closing, at such Company Member’s option, through remittance Reference Market Value of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member Common Stock as of the date of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, thenissuance), subject to the limitations contained conditions set forth in Section 10.41.6(b), Parent shall(iii) by setting off against (i.e., within ten (10reducing) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount any indemnification payments owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation pursuant to this Article 9 or (Aiv) through a combination of the methods specified in cash orclauses (i), (Bii) prior and (iii). The parties agree that, for Tax purposes, to the QA Closinggreatest extent possible, at the payment of any indemnity hereunder shall be treated as an adjustment to the Merger Consideration paid by Parent hereunder. Notwithstanding anything to the contrary contained herein and except in the case of fraud, the sole and exclusive remedy of Parent’s option, through issuance the Surviving Corporation and any Affiliate thereof in respect of Parent Shares any and all claims relating to this Agreement, the transactions contemplated hereby and any certificate, document or other instrument delivered pursuant to or in connection with a value (based on FMV) equal this Agreement shall be the rights to such amountindemnification set forth in this Article IX and to make claims against the Indemnity Holdback Amount and offsets against indemnification payments in accordance with the terms of this Agreement.

Payment of Claims. If and to the extent the CHC Indemnitees are entitled to recover any amount is determinedamounts pursuant to this ARTICLE X (other than Losses arising out of (i) a breach or inaccuracy of a Fundamental representation (ii) Non-Consenting Shareholders Payments, agreed or deemed agreed and (iii) any Overstated Working Capital), such amounts shall be recovered only by release to CHC pursuant to the Escrow Agreement of Escrow Shares with a Value equal to such amounts. Notwithstanding anything in this Agreement to the contrary, the CHC Indemnitees shall be owed entitled to recover any Parent Indemnified Party in accordance with this Section 10.6Losses arising out of (a) a breach of inaccuracy of a Fundamental Representation, then(b) Non-Consenting Shareholders Payments, subject to Section 11.1(c)and (c) any Overstated Working Capital, (i) first, Parent shall permanently withhold a portion of from the Holdback Amount Escrow Shares in accordance with a value (based on FMV) equal to such amount (orthe foregoing terms, if such amount exceeds the then remaining Holdback Amount, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Payment), and (ii) second, if from the remaining Holdback Amount Indemnifying Parties in shares of CHC Common Stock, in which case each of the Indemnifying Parties shall deliver its Pro Rata Share in shares of CHC Common Stock received as part of the Total Consideration (for this purpose, the value of the shares of CHC Common Stock so delivered will be the Value of such shares of CHC Common Stock), and such setoff rights are(iii) only to the extent that the Indemnifying Parties sold any portion of the CHC Common Shares received under this Agreement, as reasonably determined by Parent, insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become and subject to the Holdback Amountimmediately following sentence, has been previously permanently withheld pursuant to Section 10.8)from the Indemnifying Parties in cash, then, subject to in which case each of the limitations contained in Section 10.4, each Company Member shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed Indemnifying Parties shall pay such Company Member’s its Pro Rata Share of the amount owed, to of such Parent Indemnified Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) in cash, or (ii) prior Losses to the QA Closing, at applicable CHC Indemnitee by wire transfer of immediately available funds to an account designated by such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within CHC Indemnitee no later than three (3) Business Days following the determination of any such amount pursuant to the terms of this Agreement. Notwithstanding anything herein or otherwise to the contrary, each Indemnifying Parties’ maximum liability under this Agreement (other than due to fraud), shall be capped at the lesser of (x) such Indemnifying Parties’ Value of the Pro Rata Share of the Total Consideration, and (y) in the event that such Indemnifying Party sold any portion of the CHC Common Shares received under this Agreement, then with respect to such portion, the amount received by such Indemnifying Party for the sale of such determination, agreement or deemed agreementCHC Common Shares. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject and to the limitations contained extent the SKS Indemnitees are entitled to recover any amounts pursuant to this ARTICLE X (other than Losses arising out of a breach or inaccuracy of a Fundamental Representation, Non-Consenting Shareholders Payments, and any Overstated Working Capital), such amounts shall be recovered only by the issuance and delivery by CHC of shares of CHC Common Stock having a Value equal to such amounts, or by cash, or the combination thereof, at CHC’s election. Notwithstanding anything in Section 10.4this Agreement to the contrary, Parent shallthe SKS Indemnitees shall be entitled to recover any Losses arising out of a breach of inaccuracy of a Fundamental Representation by CHC (A) first from the issuance of shares of CHC Common Stock having a Value of up to $5,000,000 in accordance with the foregoing terms, within ten and (10B) second, in cash by wire transfer of immediately available funds to the Exchange Agent no later than three (3) Business Days following the date determination of any such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior pursuant to the QA Closing, at Parent’s option, through issuance terms of Parent Shares with a value (based on FMV) equal to such amountthis Agreement.

Payment of Claims. (a) If any amount is determineda Claims Notice was delivered to the Escrow Agent and no Objection Notice was delivered to the Escrow Agent within the Objection Period, agreed or deemed agreed an Objection Notice was delivered to be owed the Escrow Agent within the Objection Period but such Objection Notice was only with respect to any Parent Indemnified Party in accordance with this Section 10.6, then, subject to Section 11.1(c), (i) first, Parent shall permanently withhold a portion of the Holdback Amount with Losses claimed in the Claims Notice, the amount available to be drawn under the Letter of Credit by the Escrow Agent and the aggregate principal amount of the Company Shareholder Notes held in the Escrow Fund shall be reduced proportionally based on the respective Indemnification Percentages having a value (based on FMV) equal to such amount (or, if such amount exceeds the then remaining Holdback Amount, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Payment), and (ii) second, if the remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), then, subject to the limitations contained in Section 10.4, each Company Member shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed pay such Company Member’s Pro Rata Share of the amount owed, to such Parent Indemnified Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) the amount of the Losses set forth in cashsuch Claims Notice, if no Objection Notice was delivered to the Escrow Agent, or (ii) prior the amount of the portion of the Losses set forth in such Claims Notice to which no objection was made, if an Objection Notice was delivered to the QA ClosingEscrow Agent and, at if such Losses specified in clauses (i) or (ii) were Escrow Specified Losses and if such reduction in the amount available to be drawn under the Letter of Credit and the aggregate principal amount of the Company Member’s optionShareholder Notes from the Escrow Fund is insufficient to fully satisfy all such Losses, through remittance each Principal Shareholder obligated to indemnify Purchaser (on behalf of Parent Shares with a value (based on FMVitself or any other Purchaser Indemnified Person) shall promptly wire transfer to Purchaser an amount of cash equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member its Indemnification Percentage of such payment obligation within three (3) Business Days the value of such determination, agreement or deemed agreement. If any amount by which the Escrow Fund is determined, agreed or deemed agreed insufficient to be owed to any Company Indemnified Party, thenfully satisfy all such Losses, subject to the any applicable limitations contained in Section 10.49.3(c); provided, Parent shallhowever, within ten (10) Business Days following the date such amount is determinedthat, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closingextent that the amount of the Losses set forth in the Claims Notice (or portion thereof) is an estimate, at Parent’s optionthe Indemnified Persons shall not be so entitled to receive, through issuance and the Escrow Agent shall not deliver, funds in respect of Parent Shares with a value (based on FMV) equal to such amountportions of such estimated Losses unless and until the amount of such estimated Losses is finally determined.

Payment of Claims. If (a) In the event of any amount is determinedbona fide claim for indemnification hereunder, agreed including a Third-Party Claim, the Indemnified Party will provide to the Indemnifying Party a certificate signed by any officer of the Indemnified Party (an “Officer’s Certificate”) stating that Damages have been incurred, or deemed agreed are reasonably expected to be owed incurred, or are claimed by a third party to be or have been incurred with respect to the indemnification obligations of the Indemnifying Party set forth in Article 11, specifying, in reasonable detail and to the extent known to the Indemnified Party in each case: (i) the amount of such Damages that have been incurred at the time of the delivery of the Officer’s Certificate (or a reasonable estimate of such Damages) and, to the extent known, the amount of Damages that are expected to be incurred (or a reasonable estimate of such Damages), (ii) the individual items of such Damages included in the amount so stated, (iii) the date of the occurrence of each such item, and (iv) the nature of the misrepresentation, breach of warranty, covenant or claim to which such item is related and the specific representation, warranty, covenant or obligation in this Agreement to which the claim for such misrepresentation or breach relates. The Officer’s Certificate shall be accompanied with a copy of all court filings with respect to a Third-Party Claim. The Indemnifying Party will have a period of thirty (30) days within which to respond in writing to any Parent claim by an Indemnified Party on account of a Damage that does not result from a Third-Party Claim. If the Indemnifying Party does not so respond within such thirty (30) day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be entitled to pursue such remedies as may be available to the Indemnified Party. In order to satisfy any indemnification obligations of the Participating Rights Holders and the Founders with respect to any claim for indemnification pursuant to this Article 11, the Holdco Indemnitees shall recover any Damages that are finally determined to be payable hereunder, subject to the limitations in this Article 11, from the Escrowed Shares (to the extent not yet released) or amounts set-off with respect to a claim for indemnification from portions of certain Contingent Payments in accordance with this Section 10.611.4 whether or not such Contingent Payments are then required to be paid; provided that set-off with respect to Intellectual Property Claims shall only be from the Net Sales Contingent Payment; provided, then, subject to Section 11.1(c), (i) first, Parent shall permanently withhold a portion further that if the OCS Claims remain outstanding as of the Holdback date of the release of the Escrowed Shares, an amount equal to the OCS Maximum Amount shall remain in escrow until the OCS Settlement is obtained and the OCS Claims are finally determined. Notwithstanding any other provision herein or in the Escrow Agreement, the Holdco Indemnitees shall only be entitled to recover any Damages for Intellectual Property Claims from amounts set-off from the Net Sales Contingent Payment. All such recoveries from the Escrowed Shares or set-offs against such Contingent Payments shall be made on a pro rata basis from all Participating Rights Holders and all Founders in accordance with each such Person’s Pro Rata Share. For purposes of determining the value of any Holdco Common Shares used to satisfy indemnification claims made by Holdco Indemnitees under this Agreement, each such share shall be deemed to have a value (based on FMV) equal to the Reference Market Value on the date of issuance; provided, however, that in the case of any Escrowed Shares used to satisfy an indemnification claim made by the Holdco Indemnitees under this Agreement, such amount (or, if share shall be deemed to have a value equal to the Reference Market Value on the date of such amount exceeds the then remaining Holdback Amount, the entire Holdback Amount including, for indemnification claim. For the avoidance of doubt, by permanently withholding once the payment Escrowed Shares or issuance of amounts that would otherwise become subject Contingent Payments have been actually paid to the Holdback Amount) and/or setoff Participating Rights Holders and the Founders, absent fraud, Holdco shall have no right of recovery against any Merger Consideration that remains payable such Escrowed Shares or Contingent Payments or the Participating Rights Holders and the Founders in respect thereof pursuant to this Agreement (including this Article 11). Other than in the case of fraud by such Person, in no event shall any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment Participating Rights Holder or the Third Cash Payment), any Founder have any personal liability above and (ii) second, if the remaining Holdback Amount and beyond such setoff rights are, as reasonably determined by Parent, insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), then, subject to the limitations contained in Section 10.4, each Company Member shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed pay such Company MemberPerson’s Pro Rata Share of the amount owed, Escrowed Shares or such Person’s Pro Rata Share of portions of Contingent Payments set-off for Damages recoverable hereunder. Any indemnification obligations of Holdco pursuant to such Parent Indemnified Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount this Article 11 shall be satisfied paid to the Participating Rights Holders and the Founders as Contingent Payments, at Holdco’s election either (ix) in cashcash or (y) in Holdco Common Shares valued at the Reference Market Value on the date of issuance, or (iiz) prior through a combination of the methods specified in clauses (x) and (y). The parties agree that to the QA Closing, at such Company Member’s option, through remittance greatest extent permitted by Law the payment of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to indemnity hereunder shall be owed to any Company Indemnified Party, then, subject treated as an adjustment to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance of Parent Shares with a value (based on FMV) equal to such amountMerger Consideration and Founders’ Portion for Tax purposes.

Payment of Claims. If In the event of any amount is determinedbona fide claim for indemnification hereunder, agreed or deemed agreed to be owed to any Parent the Indemnified Party Person will advise the Indemnification Control Person in accordance with this Section 10.6writing, then, subject to Section 11.1(c), (i) first, Parent shall permanently withhold a portion advising the Indemnification Control person of the Holdback Amount amount of the claim and, with a value reasonable specificity, the circumstances surrounding the claim. With respect to liquidated claims for Damages, if within thirty (based on FMV30) equal days the Indemnification Control Person has neither objected nor contested to such amount (or, if such amount exceeds the then remaining Holdback Amountclaim in writing, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Payment), and (ii) second, if the remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, insufficient to cover Indemnifying Party will pay the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party thereof (or if in the Holdback Amountcase of a claim by an Parent Indemnitee against the Escrowed Funds, including amounts that would otherwise become subject to such Parent Indemnitee shall recover the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8full amount thereof from the Escrowed Funds), then, subject to the limitations contained set forth in Section 10.4, each Company Member shall, within ten (10) Business Days following 9.5. If the date such amount is determined, agreed or deemed agreed to be owed pay such Company Member’s Pro Rata Share of the amount owed, Indemnification Control Person objects to such claim in writing within such thirty-day period, the objection will be resolved pursuant to the procedures in the Escrow Agreement. All recoveries from Escrowed Funds shall be made on a pro rata basis from the amounts that would otherwise be released from the Escrowed Funds to the Participating Rights Holders. The parties agree that to the greatest extent possible the payment of any indemnity hereunder shall be treated as an adjustment to the Closing Payment Amount paid by Parent Indemnified Party (hereunder for Tax purposes. Indemnification obligations of Parent and the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount Merger Sub shall be satisfied by the Parent in cash. Except in the case of fraud, resort to indemnification pursuant to this Article 9 through claims against the Escrowed Funds shall be the sole remedy of Parent and Merger Sub and any other Parent Indemnitee with respect to any and all Damages related to or arising out of or in connection with (i) any breach by Company of any representation, warranty, covenant, agreement, obligation or undertaking made by the Company in cashor pursuant to this Agreement or any other agreement, instrument, certificate or other document delivered by or on behalf of the Company in connection with this Agreement, or (ii) prior any other claim, for indemnification or otherwise, arising out of or related to the QA Closingsubject matter of this Agreement or any other agreement, at such instrument, certificate or other document delivered by or on behalf of the Company Member’s option, through remittance of Parent Shares in connection with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance of Parent Shares with a value (based on FMV) equal to such amountthis Agreement.

Payment of Claims. If In the event of any amount is determinedbona fide claim for indemnification hereunder, agreed or deemed agreed to be owed to any Parent the Indemnified Party will advise the Indemnifying Party that is required to provide indemnification therefor in accordance writing with this Section 10.6, then, subject to Section 11.1(c), (i) first, Parent shall permanently withhold a portion reasonable specificity of the Holdback Amount with a value amount and circumstances surrounding such claim (based on FMV) equal the “Indemnification Notice”). With respect to such amount (orliquidated claims for Damages, if such amount exceeds within thirty (30) days following the then remaining Holdback AmountIndemnifying Party’s receipt of the Indemnification Notice, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV)Indemnifying Party has not contested such claim in writing, the First Cash Payment, the Second Cash Payment or the Third Cash Payment), and (ii) second, if the remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, insufficient to cover Indemnifying Party will pay the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), thenthereof, subject to the limitations contained set forth in Section 10.4, each Company Member shall9.5 and except as set forth in the following sentence of this Section 9.4, within ten (10) Business Days following days after the date expiration of such amount is determined, agreed or deemed agreed period. In order to be owed pay such Company Member’s Pro Rata Share satisfy any indemnification obligations of the amount owedCompany, the Company Stockholders and the Participating Rights Holders pursuant to such this Article 9, Parent Indemnified Party and the Surviving Corporation (and each of their respective directors, officers, employees, representatives and other Affiliates) shall have the “Owed Amount”). In such case of recovery right to recover Damages that have been incurred or may be incurred solely from the Escrowed Funds or as a Company Indemnifying Partyset-off against any Contingent Payments otherwise due, each Company Indemnifying Party’s Owed Amount which shall be satisfied paid first from the Escrowed Funds to the extent available and then by setting off any remaining such amounts against any Contingent Payments otherwise due to the Participating Rights Holders pursuant to this Agreement or any indemnity payments owed by Parent and the Surviving Corporation pursuant to Section 9.1; provided, that the right of set-off against any Contingent Payments with respect to any Parent-Handled Claims shall be limited to fifty percent (i50%) of any such Contingent Payment. All such recoveries from Escrowed Funds and offsets against Contingent Payments or indemnification payments shall be made on a pro rata basis from all Participating Rights Holders in the same proportions in which they would otherwise be entitled to receive such Escrowed Funds, Contingent Payments or indemnification payments. Any indemnification obligations of Parent or Merger Sub pursuant to this Article 9 shall be satisfied, at Parent’s election (a) in cash, or (iib) prior to the QA Closing, at such Company Member’s option, through remittance by issuing shares of Parent Shares with a value Common Stock (based on FMV) equal to each share of which shall be valued for such Owed Amount. The Representative hereby agrees to give notice to each Company Member purpose at the Reference Market Value of Parent Common Stock as of the date of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, thenissuance), subject to the limitations contained conditions set forth in Section 10.4, Parent shall, within ten (101.8(b) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash orabove, (Bc) prior by setting off against (i.e. reducing) any indemnification payments Parent is required to make pursuant to Section 9.1 or (d) through a combination of the methods specified in clauses (a), (b) and (c). The parties agree that to the QA Closing, at Parent’s option, through issuance greatest extent possible the payment of any indemnity hereunder shall be treated as an adjustment to the Merger Consideration paid by Parent Shares with a value (based on FMV) equal to such amounthereunder for Tax purposes.

Payment of Claims. If As used in this Section, the phrase "determination of the amount" of a Claim shall mean agreement on such amount between the affected parties or the amount as set forth in a court Order or judgment. Upon determination of the amount of a Claim made by Seller pursuant to a properly submitted Claim Notice, Buyer covenants to pay promptly to Seller the amount of such Claim, plus interest at ten percent (10%) per annum calculated on the basis of the actual number of days elapsed over 360 from the date any Damage is suffered or sustained to the date of payment. In the event that the Buyer does not promptly pay to Seller the amount of any such Claim, Seller shall have the right, in addition to any other remedies under this Agreement or at law or equity, to (i) retain that portion of any Working Capital Deficit, if any, up to the amount of the Claim not paid; (ii) reduce, or cause the Company to reduce, any other amounts required to be paid to Buyer hereunder up to the amount of the Claim not paid; and/or (iii) offset on a dollar-for-dollar basis, up to the amount of the Claim not paid, any amount is determined, agreed or deemed agreed required to be owed paid by the Seller to the Company under the Drilling Services Agreement. Seller shall have the right to pursue and/or take, in whole or in part, any Parent Indemnified Party of the remedies set forth in accordance with this Section 10.6, then, subject to Section 11.1(csubparagraphs (i), (iii) firstand/or (iii) above, Parent but in no event shall permanently withhold be entitled to retain or offset more than the aggregate amount of Damages related to such Claim. Upon determination of the amount of a Claim made by Buyer pursuant to a properly submitted Claim Notice, the Indemnitors covenant jointly and severally to pay promptly to Buyer the determined amount of such Claim, plus interest at ten percent (10%) per annum calculated on the basis of the actual number of days elapsed over 360 from the date any Damage is suffered or sustained to the date of payment. In the event that the Indemnitors do not promptly pay to Buyer the amount of any such Claim, Buyer shall have the right, in addition to any other remedies under this Agreement or at law or equity, to (i)retain that portion of the Holdback Amount with a value (based on FMV) equal to such amount (orany Excess Working Capital, if such any, up to the amount exceeds of the then remaining Holdback AmountClaim not paid; (ii)reduce, or cause the Company to reduce, any other amounts required to be paid to Seller hereunder up to the amount of the Claim not paid; and/or (iii) offset on a dollar-for-dollar basis, up to the amount of the Claim not paid, the entire Holdback Amount includingvalue of any drilling services required to be provided by the Company to Seller under the Drilling Services Agreement. Buyer shall have the right to pursue and/or take, for in whole or in part, any of the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable remedies set forth in subparagraphs (including any Parent Shares (with a value based on FMVi), the First Cash Payment, the Second Cash Payment or the Third Cash Payment), and (ii) secondand/or (iii) above, if but in no event shall be entitled to retain or offset more than the remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, insufficient to cover the full aggregate amount that is determined, agreed or deemed agreed to be owed of Damages related to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), then, subject to the limitations contained in Section 10.4, each Company Member shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed pay such Company Member’s Pro Rata Share of the amount owed, to such Parent Indemnified Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) in cash, or (ii) prior to the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance of Parent Shares with a value (based on FMV) equal to such amountClaim.

Payment of Claims. If In the event of any amount is determinedbona fide claim for indemnification hereunder, agreed or deemed agreed to be owed to any Parent the Indemnified Party will advise the Indemnifying Party that is required to provide indemnification therefor in accordance writing with this Section 10.6, then, subject to Section 11.1(c), (i) first, Parent shall permanently withhold a portion reasonable specificity of the Holdback Amount with a value (based on FMV) equal amount and circumstances surrounding such claim. With respect to such amount (orliquidated claims, if within thirty (30) days the Indemnifying Party has not contested such amount exceeds the then remaining Holdback Amountclaim in writing, the entire Holdback Amount including, for Indemnifying Party will pay and/or the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Payment), and (ii) second, if the remaining Holdback Amount and such setoff rights areEscrow Agent shall pay, as reasonably determined by Parentapplicable, insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), thenthereof, subject to the limitations contained set forth in Section 10.4, each Company Member shall16.5, within ten (10) Business Days following days after the expiration of such period. Any indemnification obligations pursuant to this Section 16 of the Buyer or Merger Sub shall be paid, at such party's option (i) in cash, (ii) by issuing Buyer Common Stock (each share of which shall be valued for such purpose at the Closing Price Per Share on the date such amount is determinedof issuance), agreed or deemed agreed to be owed pay such Company Member’s Pro Rata Share (iii) through a combination of the amount owedmethods specified in clauses (i) and (ii). Subject to the limitations set forth in Section 16.5, any indemnification obligations pursuant to such Parent Indemnified this Section 16 of any Principal Company Stockholder who is an Indemnifying Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount other than indemnification obligations for Unlimited Claims) shall be satisfied solely (a) through the terms and provisions of the Escrow Agreement and (b) if Buyer elects to reduce the number of shares of Buyer Common Stock included in the Escrowed Merger Consideration pursuant to Section 3.3(b) and the amount of Damages for which such Principal Company Stockholder is liable under Section 16 exceeds the value of the Escrowed Merger Consideration then held by the Escrow Agent on behalf of such Principal Company Stockholder, the amount of such excess shall be settled in cash. Subject to the limitations set forth in Section 16.5, indemnification obligations for Unlimited Claims pursuant to this Section 16 of any Principal Company Stockholder who is an Indemnifying Party shall be satisfied (x) first, through the terms and provisions of the Escrow Agreement and (y) second, to the extent not satisfied through the terms and provisions of the Escrow Agreement, at the option of such Principal Company Stockholder: (i) in cash, or (ii) prior by delivery of a combination of cash and Buyer Common Stock (each share of which shall be valued for such purpose at the Closing Price Per Share on the date of delivery), PROVIDED, that in the event that any Principal Stockholder elects to deliver a combination of cash and shares of Buyer Common Stock, the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member portion of such payment obligation within three (3) Business Days delivery made up of Buyer Common Stock shall not be more than, on a percentage basis, the portion of the merger consideration received by such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Principal Company Indemnified Party, then, Stockholder that was not subject to the limitations contained escrow in the form of Buyer Common Stock with any Buyer Common Stock delivered in the Merger or pursuant to this Section 10.416.4 being valued solely for purposes of this proviso at the Closing Date Price Per Share (but not for any other purpose). Notwithstanding clause (y) of the previous sentence, Parent shall, a Principal Company Stockholder may not use Buyer Common Stock to satisfy an indemnification obligation for an Unlimited Claim if it could reasonably be expected that satisfaction of such indemnification obligation with Buyer Common Stock could disqualify the transactions contemplated hereby as a reorganization within ten (10the meaning of Section 368(a) Business Days following of the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata ShareCode. Parent shall satisfy such obligation (A) in cash or, (B) prior The parties agree that to the QA Closing, at Parent’s option, through issuance greatest extent possible the payment of Parent Shares with a value (based on FMV) equal any indemnity hereunder shall be treated as an adjustment to such amountthe merger consideration paid by Buyer hereunder for tax purposes.

Payment of Claims. If (a) In order to satisfy any amount is determined, agreed or deemed agreed indemnification obligations of the Equityholders pursuant to be owed to any Parent Indemnified Party in accordance with this Section 10.6, then9.2, subject to the limitations of Section 11.1(c)9.7, Buyer (and each of the Indemnified Parties) shall recover Damages (i) first, Parent shall permanently withhold a portion of from the Holdback Amount with a value (based on FMV) equal Escrow Fund to such amount (or, if such amount exceeds the then remaining Holdback Amount, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become extent available and subject to the Holdback Amountterms of the Escrow Agreement, provided that all claims under Section 9.2(i) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), shall be paid solely from the First Cash Payment, Special Escrow Amount of the Second Cash Payment or Escrow Fund and all other claims shall be paid solely from the Third Cash Payment), and Indemnification Escrow Amount of the Escrow Fund; (ii) second, if but only in the remaining Holdback Amount and event of a claim based on fraud or intentional misrepresentation of a Listed Employee, by offsetting against such setoff rights are, as reasonably determined by Parent, insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject Listed Employee’s Retention Payments to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), then, subject to the limitations contained in Section 10.4, each Company Member shall, within ten (10) Business Days following the date extent such amount is determinedor becomes due and payable pursuant to a Retention Letter of such Listed Employee, agreed or deemed agreed to be owed pay such Company Member’s Pro Rata Share and (iii) thereafter, directly from the Equityholders by wire transfer of immediately available funds; provided, that (x) the obligations of the Equityholders under this Section 9.6(a) shall be several and not joint and (y) the Indemnified Parties shall in no event be entitled to recover from any Equityholder an amount owed, greater than such amounts as have actually been paid to such Parent Indemnified Party Equityholder pursuant to this Agreement (the “Owed Amount”). In such case of recovery from and a Company Indemnifying PartyRetention Letter, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) in cash, or if applicable pursuant to item (ii) prior above). All such recoveries directly from the Equityholders shall be made on a Damages Pro Rata Percentage with respect to each Equityholder and all recoveries by offsetting against Retention Payments shall be made from the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amountapplicable Listed Employee. The Representative hereby agrees to give notice shall make the final determination as to each Equityholder’s Damages Pro Rata Percentage and the Equityholders shall not be entitled to make any claim against the Buyer, Parent or Company Member of such payment obligation within three (3) Business Days in respect of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance of Parent Shares with a value (based on FMV) equal to such amount.

Payment of Claims. If any amount is Losses are determined, agreed or deemed agreed to be owed to any Parent Indemnified Party in accordance with this Section 10.68.5 (such amount, the “Owed Amount”), then, subject to Section 11.1(c), any Losses with respect thereto shall be satisfied (i) first, so long as there are amounts remaining in the Indemnity Escrow Fund, Parent shall permanently withhold be entitled to receive a portion of the Holdback Amount Indemnity Escrow Fund with a value (based on FMV) equal to such amount the Owed Amount, in which case, the Securityholder Representative and Parent shall execute and deliver a joint written instruction to the Escrow Agent instructing the Escrow Agent to release to Parent from the Indemnity Escrow Fund the Owed Amount (or, if such amount exceeds the amounts then remaining Holdback Amountin the Indemnity Escrow Fund, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Paymentremaining Indemnity Escrow Fund), and (ii) second, if the amount remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, in the Indemnity Escrow Fund is insufficient to cover the full amount that is determinedOwed Amount, agreed or deemed agreed to be owed to such Indemnified Party (or if all of the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, Indemnity Escrow Fund has been previously permanently withheld pursuant delivered to Section 10.8)Parent and/or the Indemnifying Parties, then, subject to the limitations contained in Section 10.48.3, each Company Member Indemnifying Party shall, within ten (10) Business Days following the date such amount Owed Amount is determined, agreed or deemed agreed to be owed owed, pay in cash such Company MemberIndemnifying Party’s Pro Rata Share of the amount owed, Owed Amount to such Parent Indemnified Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) in cash, or (ii) prior to the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Securityholder Representative hereby agrees to give notice to each Company Member Indemnifying Party of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance of Parent Shares with a value (based on FMV) equal to such amount.

Payment of Claims. If In the event of any claim for indemnification pursuant to Section 9.2 or 9.3 hereof, the Parent Covered Party or the Company Covered Party claiming indemnification (the “Indemnified Party”) will advise the other (the “Indemnifying Party”) and, in the case that the Indemnified Party is a Parent Covered Party, the Escrow Agent, in writing with reasonable specificity, to the extent known, of the amount is determinedand circumstances surrounding such claim. If, agreed or deemed agreed after the Indemnified Party delivers a claim for indemnification to be owed to any Parent Indemnified the Indemnifying Party in accordance with the immediately preceding sentence of this Section 10.69.5(b) the Indemnifying Party accepts such claim in writing, then, the full amount thereof shall be paid (subject to Section 11.1(c), the provisions of this Article 9 that may impose limitations on such claim) (i) firstwith respect to any Parent Covered Party, Parent shall permanently withhold a portion out of the Holdback Amount with Indemnity Escrow Shares and the Carve Out Escrowed Indemnity Shares, on a value pro rata basis, within two (based on FMV2) equal to days after the Stockholder Representative Committed has accepted such amount claim for indemnification (or, if such amount exceeds the then remaining Holdback Amount, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Indemnity Escrow Shares (with a value based on FMV), and the First Cash Payment, the Second Cash Payment or the Third Cash PaymentCarve Out Escrowed Indemnity Shares being available and sufficient to satisfy such claim), and (ii) secondwith respect to any Company Covered Party, if the remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject Parent via wire transfer to the Holdback Amount, Stockholders Representative Committee promptly after Parent has been previously permanently withheld pursuant to Section 10.8), then, subject to the limitations contained in Section 10.4, each Company Member shallaccepted such claim for indemnification. If, within ten (10) Business Days following days after the date Indemnified Party delivers a claim for indemnification to the Indemnifying Party in accordance with the first sentence of this Section 9.5(b) or Section 9.5(a), the Indemnifying Party has not accepted such amount claim for indemnification, then, (A) if the Indemnified Party is determineda Parent Covered Party, agreed such Parent Covered Party may make a claim against the Indemnity Escrow Shares and the Carve Out Escrowed Indemnity Shares pursuant to, and in accordance with, the Escrow Agreement (subject to the provisions of this Article 9 that may impose limitations on such claim and subject to subject to the Indemnity Escrow Shares and the Carve Out Escrowed Indemnity Shares being available and sufficient to satisfy such claim), and (B) if the Indemnified Party is either a Parent Covered Party or deemed agreed a Company Covered Party, such Indemnified Party may commence an action or proceeding in a court of competent jurisdiction seeking to be owed pay enforce the Indemnified Party’s right to indemnification subject to, and in accordance with, the provisions of this Article 9. Promptly after receipt by the Stockholder Representative of any payment under this Section 9.5(b) by Parent in connection with any claim for indemnification by or on behalf of one or more Company Covered Parties, the Stockholder Representative shall distribute to such Company Member’s Pro Rata Share of the amount owed, to such Parent Indemnified Covered Party (the “Owed Amount”). In such case of recovery from a or Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) in cash, or (ii) prior to the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member Covered Parties that portion of such payment obligation within three (3) Business Days to which such Company Covered Party or Company Covered Parties are entitled under this Agreement by virtue of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance of Parent Shares with a value (based on FMV) equal to such amountclaim for indemnification.

Payment of Claims. If any amount is is, in good faith, determined, agreed or deemed agreed to be owed to any Parent Indemnified Party Person in accordance with this Section 10.610.7, then, subject to Section 11.1(c), then (i) firstwithin three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall permanently withhold a portion execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Holdback Amount with a value (based on FMV) equal Indemnification Escrow Account), in each case to such amount (or, if such amount exceeds be released in the then remaining Holdback Amount, the entire Holdback Amount including, for the avoidance same proportion of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject cash and shares as were contributed to the Holdback Amount) and/or setoff against any Merger Consideration Indemnification Escrow Account, it being understood that remains payable (including any Parent Shares (with a value based on FMVfor purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the First Cash Payment, Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Second Cash Payment or the Third Cash Payment), Collared Stock Price and (ii) second, if the amount remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), then, subject to the limitations contained in Section 10.4, each Company Member shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed pay such Company Member’s Pro Rata Share of the amount owed, to such Parent Indemnified Party (the “Owed Amount”). In such case of recovery from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount shall be satisfied (i) in cash, or (ii) prior to the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject to the limitations contained in Section 10.410.3, Parent shall, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) Business Days days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance and/or forfeit shares of Parent Shares with Common Stock having a value (based on FMVthe Collared Stock Price) equal to such amountIndemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified Party.

Payment of Claims. If In the event of any amount is determinedbona fide claim for indemnification hereunder, agreed or deemed agreed to be owed to any Parent the Indemnified Party will advise the Indemnifying Party that is required to provide indemnification therefor in writing. With respect to liquidated claims for Damages, the Indemnifying Party shall be responsible for the payment thereof upon the earlier of (w) the issuance of a final non-appealable order from a court of competent jurisdiction directing such payment, (x) a settlement to which the Indemnifying Party has consented, (y) the date on which the Buyer and the Stockholders’ Representative agree in writing that such payment must be paid, and (z) the final resolution of a Tax Claim in accordance with this Section 10.6, then, subject to Section 11.1(c), (i) first, Parent shall permanently withhold a portion of the Holdback Amount with a value (based on FMV) equal to such amount (or, if such amount exceeds the then remaining Holdback Amount, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Payment), and (ii) second, if the remaining Holdback Amount and such setoff rights are, as reasonably determined by Parent, insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), then7.3, subject to the limitations contained set forth in Section 10.4, each Company Member shall11.5 and except as set forth in the following sentence of this Section 11.4, within ten (10) Business Days following the date days after such amount order is determinedissued, agreed such settlement or deemed agreed mutual written agreement is executed, or such resolution is reached. In order to be owed pay such Company Member’s Pro Rata Share satisfy any indemnification obligations of the amount owedCompany, the Stockholders and the Fully Diluted Common Holders with respect to any claim for indemnification pursuant to this Article XI (other than claims under Section 11.2(c)), Buyer and the Surviving Corporation (and each of their respective directors, officers, employees, representatives and other Affiliates) shall have the right to recover Damages that have been incurred, at the election of Buyer and the Surviving Corporation, first, from the Indemnity Escrow Account to the extent available, or, solely with respect to claims pursuant to Section 11.2 (other than Section 11.2(c) or with respect to an Ordinary Breach) to the extent there are no funds remaining in the Indemnity Escrow Account sufficient to satisfy such Parent Indemnified Party (Damages, by offset from the “Owed Amount”Contingent Payments pursuant to the terms of Section 2.10(c). In All such case of recovery recoveries from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount the Indemnity Escrow Account and offsets against Contingent Payments shall be satisfied (i) made on a pro rata basis from all Fully Diluted Common Holders in cash, the same proportions in which they would otherwise be entitled to receive such escrowed funds or (ii) prior Contingent Payments. The parties agree that to the QA Closing, at such Company Member’s option, through remittance greatest extent permitted by Law the payment of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to indemnity hereunder shall be owed to any Company Indemnified Party, then, subject treated as an adjustment to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance of Parent Shares with a value (based on FMV) equal to such amountMerger Consideration paid by Buyer hereunder for Tax purposes.

Payment of Claims. If In the event of any amount is determinedbona fide claim for indemnification hereunder, agreed or deemed agreed to be owed to any Parent the Indemnified Party will advise the Indemnifying Party that is required to provide indemnification therefor in accordance with this Section 10.6, then, subject to Section 11.1(c), writing. Such notice shall be signed by the Indemnified Party: (ia) first, Parent shall permanently withhold a portion of the Holdback Amount with a value (based on FMV) equal to stating that such amount (or, if such amount exceeds the then remaining Holdback Amount, the entire Holdback Amount including, for the avoidance of doubt, by permanently withholding the payment Indemnified Party has paid or issuance of amounts that would otherwise become subject to the Holdback Amount) and/or setoff against any Merger Consideration that remains payable (including any Parent Shares (with a value based on FMV), the First Cash Payment, the Second Cash Payment or the Third Cash Payment)incurred Damages, and (iib) secondspecifying in reasonable detail the individual items of Damages included in the amount so stated, the date each such item was paid or incurred, if applicable, and the remaining Holdback Amount and nature of the misrepresentation, breach of warranty or covenant or other event or circumstances which resulted in the indemnification obligation of the Indemnifying Party. With respect to liquidated claims for Damages, if within sixty (60) days the Indemnifying Party has not contested such setoff rights areclaim in writing, as reasonably determined by Parent, insufficient to cover the Indemnifying Party will be liable for the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party (or if the Holdback Amount, including amounts that would otherwise become subject to the Holdback Amount, has been previously permanently withheld pursuant to Section 10.8), thenthereof, subject to the limitations contained set forth in Section 10.4, each Company Member shall9.5 and except as set forth in the following sentence of this Section 9.4, within ten (10) Business Days following days after the date expiration of such amount is determined, agreed or deemed agreed period. As the sole and exclusive remedy to be owed pay such Company Member’s Pro Rata Share satisfy any indemnification obligations of the amount owed, Company Stockholders and the Participating Rights Holders pursuant to such Parent Indemnified Party this Article 9 (other than in the “Owed Amount”). In such case of recovery fraud), and subject to all of the limitations of liability stated in this Article 9, Parent and the Surviving Corporation (and each of their respective directors, officers, employees, representatives and other Affiliates) shall have the right to recover Damages that have been incurred first from a Company Indemnifying Party, each Company Indemnifying Party’s Owed Amount the Escrowed Funds to the extent available and then by setting off any remaining such amounts against any Contingent Payments that have not yet been paid and are otherwise due to the Participating Rights Holders pursuant to this Agreement or any indemnity payments owed by Parent and the Surviving Corporation pursuant to Section 9.1. All such recoveries from Escrowed Funds and offsets against Contingent Payments or indemnification payments shall be satisfied made on a pro rata basis from all Participating Rights Holders in the same proportions in which they would otherwise be entitled to receive such Escrowed Funds, Contingent Payments or indemnification payments. Any indemnification obligations of Parent or Merger Sub pursuant to this Article 9 shall be promptly paid, at Parent’s election (ia) in cash, (b) by setting off against (i.e., reducing) any then existing indemnification obligations of the Participating Rights Holders due and payable to Parent under this Article 9, or (iic) through a combination of the methods specified in clauses (a) and (b). The parties agree that to the greatest extent possible the payment of any indemnity hereunder shall be treated as an adjustment to the Merger Consideration paid by Parent hereunder for Tax purposes. Notwithstanding anything contained in this Agreement to the contrary, the amount of the Indemnifying Party’s liability under this Agreement shall be net of any insurance proceeds or other third party indemnity or contribution amounts actually recovered by an Indemnified Party. Pursuant to the definition of “Closing Payment Amount” in Section 10.2 hereof, Parent shall be entitled to reduce the Closing Payment by the amount of Damages incurred or to be incurred by Parent or the Company in respect of any Excess Parachute Claims, to the extent reasonably determinable prior to the QA Closing, at such Company Member’s option, through remittance of Parent Shares with a value (based on FMV) equal to such Owed Amount. The Representative hereby agrees to give notice to each Company Member of such payment obligation within three (3) Business Days of such determination, agreement or deemed agreement. If any amount is determined, agreed or deemed agreed to be owed to any Company Indemnified Party, then, subject to the limitations contained in Section 10.4, Parent shall, within ten (10) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, pay such amount owed to such Company Indemnified Party based on their respective Pro Rata Share. Parent shall satisfy such obligation (A) in cash or, (B) prior to the QA Closing, at Parent’s option, through issuance of Parent Shares with a value (based on FMV) equal to such amount.