Common use of Claim Procedures Clause in Contracts

Claim Procedures. (a) An Indemnified Party shall give the Indemnifying Party (or the Securityholder Representative Committee if the Indemnified Party is a Parent Indemnified Party) reasonably prompt notice of any matter which an Indemnified Party has determined has given or would reasonably give rise to indemnification under this Agreement describing in reasonable detail, to the extent then known, the facts and circumstances with respect to such claim and stating the amount of the Loss, if known, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises (such notice a “Claim Notice”). With respect to a breach of any representation or warranty, the Claim Notice must be received on or prior to the date on which the representation or warranty on which such claim is based ceases to survive as set forth in Section 8.1, irrespective of whether the subject matter of such claim shall have occurred before or after such date. (b) If an Indemnified Party shall have received from the Indemnifying Party (or the Securityholder Representative Committee if the Indemnified Party is a Parent Indemnified Party) within twenty (20) Business Days following delivery of a Claim Notice by such Indemnified Party, a written notice setting forth the Indemnifying Party’s (or the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) objections to the claim set forth in such Claim Notice and the Indemnifying Party’s (or the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) reasons for such objection, then the parties shall negotiate in good faith for a period of at least twenty (20) Business Days from the date the Indemnified Party receives such objection notice (such period is hereinafter referred to as the “Negotiation Period”). After the Negotiation Period, if the parties still cannot agree regarding such claim, the Indemnified Party may, at any time thereafter, until the expiration of the applicable statute of limitations with respect to its claim for indemnification, commence legal proceedings against the Indemnifying Party to enforce its rights to indemnification from and against any Losses described in the underlying Claim Notice. (c) In the event that the Indemnified Party commences an Action in order to recover Losses hereunder, upon final determination of a court of competent jurisdiction with respect thereto, the non-prevailing party in such Action shall reimburse the prevailing party’s reasonable costs and expenses (including reasonable attorneys’ fees) incurred in connection with such Action. (d) Following the final determination of any amounts owed to a Parent Indemnified Party in accordance with the terms of this Article VIII, and subject to terms and conditions of this Article VIII, (i) from the Escrow Fund pursuant to the terms of this Article VIII, Parent and the Securityholder Representative Committee shall jointly instruct the Escrow Agent to promptly disburse such amounts from the Escrow Fund to such Indemnified Party in accordance with the Escrow Agreement, or (ii) directly from any Company Securityholder Indemnifying Party pursuant to this Article VIII, such Company Securityholder Indemnifying Party shall promptly (and in any event with three (3) Business Days) following such determination pay such amounts to such Parent Indemnified Party. Following the final determination of any amounts owed to a Company Securityholder Indemnified Party from any Parent Indemnifying Party pursuant to this Article VIII, such Parent Indemnifying Party shall promptly (and in any event with three (3) Business Days) following such determination pay such amounts to such Company Securityholder Indemnified Party.

Claim Procedures. (a) An In order for a New DK Indemnified Party shall give the Indemnifying or a SBT Indemnified Party (any of them, an “Indemnified Party”) to duly make a valid claim under Section 10.2 or the Securityholder Representative Committee if Section 10.3, the Indemnified Party must promptly, but (i) with respect to SBT Non-Fundamental Representations, SBT Sellers Non-Fundamental Representations and DK Non-Fundamental Representations, as applicable, in no event later than the date that is two (2) years following the Closing Date and (ii) with respect to SBT Fundamental Representations, SBT Sellers Fundamental Representations and DK Fundamental Representations, in no event later than the date of expiration of the applicable statute of limitations, provide written notice to the SBT Sellers’ Representative (for claims made by New DK Indemnified Parties) or to New DK (for claims made by SBT Sellers Indemnified Parties) (the recipient of such notice, the “Indemnifying Party”), which notice shall set forth a Parent description in reasonable detail of the occurrence(s) specified in Section 10.2 or Section 10.3 which the Indemnified Party) reasonably prompt notice Party alleges to have occurred, a description of the facts and circumstances giving rise to such occurrences, the estimated amount of Losses imposed, incurred, suffered or asserted in connection therewith or arising therefrom (to the extent then ascertainable), and a description of any matter which an Indemnified Party has determined has given or would reasonably give rise other remedy sought in connection therewith (subject to indemnification under the limitations in this Agreement describing in reasonable detailAgreement), any relevant time constraints relating thereto and, to the extent then knownpracticable, the facts and circumstances with respect to such claim and stating the amount of the Loss, if known, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises any other material details pertaining thereto (such notice a “Claim Notice”). With respect The Indemnified Party shall cooperate with and provide to a breach the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of any representation or warranty, determining the validity of the allegations made in the Claim Notice must and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use reasonable best efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim (as defined below) to be received on made so as to preserve any applicable attorney-client or prior to the date on which the representation or warranty on which such claim is based ceases to survive as set forth in Section 8.1, irrespective of whether the subject matter of such claim shall have occurred before or after such datework product privileges. (b) If In the event the Claim Notice results from any Action asserted or threatened against, the Indemnified Party by a third party (other than with respect to Taxes, which in the event of Sellers Taxes or claims relating to Taxes against the applicable SBT Security Holders, shall be controlled in accordance with the provisions of Section 13.5) (a “Third Party Claim”): (i) The Indemnified Party shall provide the Claim Notice to the Indemnifying Party not later than the tenth Business Day following the Indemnified Party’s receipt of the Third Party Claim, and in any event not later than the tenth Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that the failure to timely provide a Claim Notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third Party Claim. (ii) During the period ending on the earlier of the 30th calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth calendar day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to notify the Indemnified Party of his or its election to assume and control the defense of the Third Party Claim, unless (i) the Third Party Claim seeks an injunction or other equitable or non-monetary relief against the Indemnified Party (other than injunctive, equitable or non-monetary relief that is incidental to monetary damages as the primary relief sought), (ii) the Third Party Claim arises in connection with any criminal matter, (iii) the Losses sought in connection with such Third Party Claim(s) are reasonably likely to exceed the Cap, or (iv) there is a reasonable probability that the Third Party Claim may adversely affect the Indemnified Party or its Affiliates other than as a result of monetary damages. A. In the event that the Indemnifying Party duly and timely makes such election, such election shall constitute the Indemnifying Party’s conclusive acknowledgment that the Indemnified Party is entitled to be indemnified, defended, held harmless and reimbursed in accordance with this Article X (subject to the limitations herein) for, from and against the Third Party Claim, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose on its account; provided that, if in the reasonable opinion of counsel to the Indemnified Party, there are defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party, then the reasonable fees and expenses of one external law firm to the Indemnified Party shall be paid in accordance with Section 10.4(b)(iv)A; provided, further, that, if (i) the Indemnified Party and Indemnifying Party are both named parties to the proceedings and the Indemnified Party shall have received from reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts between them or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to pursue a Third Party Claim it has assumed in a reasonably diligent manner, as provided in the first sentence of this Section 10.4(b)(ii)A, the Indemnifying Party shall bear the reasonable and documented out-of-pocket costs and expenses of one additional counsel (in addition to, but only to the extent necessary, one local counsel) which shall represent all Indemnified Party arising out of the same or similar set of circumstances in connection with such defense. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall be entitled to settle such claims; provided that, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle, compromise or cease to defend such Third Party Claim if such settlement, compromise or cessation would result in (i) any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party; (ii) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates; (iii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates; (iv) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates which are not indemnifiable hereunder; or (v) any non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates. B. If the Indemnifying Party (i) does not duly and timely make such election, or (ii) after timely making such election, fails to take reasonable steps to defend diligently the Securityholder Representative Committee Third Party Claim within ten (10) Business Days after its receipt of written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall be entitled but not obligated (subject to Section 10.7 (Minimizing and Mitigating Losses)) to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 10.4(b)(ii)A; provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third Party Claim shall not otherwise be affected by such election. Notwithstanding anything in the foregoing to the contrary, the Indemnifying Party shall have no liability with respect to a Third Party Claim settled without its prior written consent (which shall not unreasonably be withheld, conditioned or delayed). (iii) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall consider such comments in good faith. (iv) All reasonable and documented out-of-pocket legal fees, costs and expenses actually incurred or suffered by the Indemnifying Party and the Indemnified Party in connection with investigating and defending, and cooperating in the investigation and defense of, the Third Party Claim (“Third Party Claim Expenses”) shall be paid as follows: A. Any Third Party Claim Expenses actually incurred or suffered by the Indemnified Party (1) prior to or in the absence of the due and timely making of the election described in Section 10.4(b)(ii)A, (2) under the circumstances described in the proviso to the second sentence of such Section, (3) under the circumstances described in Section 10.4(b)(ii)B or (4) in compliance with Section 10.4(b)(iii) shall constitute Losses for which the Indemnified Party shall be entitled to be reimbursed if the Indemnified Party is a Parent Indemnified Party) within twenty (20) Business Days following delivery of a Claim Notice by such Indemnified Party, a written notice setting forth the Indemnifying Party’s (or the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) objections to the claim set forth in such Claim Notice and the Indemnifying Party’s (or the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) reasons for such objection, then the parties shall negotiate in good faith for a period of at least twenty (20) Business Days from the date the Indemnified Party receives such objection notice (such period is hereinafter referred to as the “Negotiation Period”). After the Negotiation Period, if the parties still cannot agree regarding such claim, the Indemnified Party may, at any time thereafter, until the expiration of the applicable statute of limitations with respect to its claim for indemnification, commence legal proceedings against the Indemnifying Party to enforce its rights to indemnification from and against any Losses described in the underlying Claim Notice. (c) In the event that the Indemnified Party commences an Action in order to recover Losses hereunder, upon final determination of a court of competent jurisdiction with respect thereto, the non-prevailing party in such Action shall reimburse the prevailing party’s reasonable costs and expenses (including reasonable attorneys’ fees) incurred in connection with such Action. (d) Following the final determination of any amounts owed determined pursuant to a Parent Indemnified Party in accordance with the terms of this Article VIIIFinal Determination to be entitled to be indemnified, held harmless and subject to terms and conditions of this Article VIII, (i) from the Escrow Fund pursuant to the terms of this Article VIII, Parent and the Securityholder Representative Committee shall jointly instruct the Escrow Agent to promptly disburse such amounts from the Escrow Fund to such Indemnified Party in accordance with the Escrow Agreement, or (ii) directly from any Company Securityholder Indemnifying Party reimbursed pursuant to this Article VIII, such Company Securityholder Indemnifying X in respect of the Third Party Claim. B. Third Party Claim Expenses not addressed by Section 10.4(b)(iv)A shall promptly (and in any event with three (3) Business Days) following such determination pay such amounts to such Parent Indemnified Party. Following be paid by the final determination of any amounts owed to a Company Securityholder Indemnified Party from any Parent Indemnifying Party pursuant to this Article VIII, such Parent Indemnifying Party shall promptly (and in any event with three (3) Business Days) following such determination pay such amounts to such Company Securityholder Indemnified PartyPerson by which they were incurred.

Claim Procedures. (a) An Subject to the limitations set forth in Section 8.3, if an Indemnified Party wishes to make a claim under this Article VIII, such Indemnified Party shall give the Indemnifying Party deliver a written notice (or the Securityholder Representative Committee if the Indemnified Party is a Parent Indemnified Party) reasonably prompt notice of any matter which an Indemnified Party has determined has given or would reasonably give rise to indemnification under this Agreement describing in reasonable detail, to the extent then known, the facts and circumstances with respect to such claim and stating the amount of the Loss, if known, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises (such notice a “Claim Notice”). With respect ) to a the Securityholder Representative (i) stating that an Indemnified Party has paid, incurred, suffered or sustained, or reasonably anticipates that it may pay, incur, suffer or sustain Losses, and (ii) to the extent reasonably available, specifying such Losses in reasonable detail, the date that each such Loss was paid, incurred, suffered or sustained, or the basis for such anticipated Losses, and, if applicable, the nature of the misrepresentation, breach of any representation warranty or warranty, the covenant or other indemnifiable matter. Acquiror may update a Claim Notice must be received on from time to time to reflect any change in circumstances following the date thereof; provided, however, that Acquiror may not add new claims to such Claim Notice if the applicable survival period for such claim has expired unless such new claim arises from the same set of facts or circumstances raised in such Claim Notice served prior to the date on which expiration of such survival period. A failure by an Indemnified Party to give complete, accurate, or, subject to the representation or warranty on which such claim is based ceases to survive as survival periods set forth in Section 8.1, irrespective timely notice of whether a Claim Notice will not affect the subject matter rights or obligations of any party hereunder. If a claim under this Article VIII may be brought under different or multiple sections, clauses or sub-clauses of Section 8.2(a) (or with respect to different or multiple representations, warrants or covenants), then the Indemnified Parties shall have the right to bring such claim under any or each such section, clause, subclauses, representation, warranty or covenant (each a “Subject Provision”) that it chooses and the Indemnified Parties will not be precluded from seeking indemnification under any Subject Provision by virtue of the Indemnified Parties not being entitled to seek indemnification under any other Subject Provision. Following the delivery of a Claim Notice, the Securityholder Representative and its representatives and agents shall be given reasonable access (including electronic access, to the extent available) to the books and records of the Surviving Corporation solely to the extent such books and records are relevant to the matters or inquiries raised in such Claim Notice and reasonable access during normal business hours to such personnel or other representatives of the Surviving Corporation and Acquiror solely to the extent such personnel or other representatives are reasonably expected to have occurred before knowledge relevant to the matters or inquiries raised in such Claim Notice, in each case, as they may reasonably require for the purposes of investigating or resolving any disputes relating to, or responding to, any matters or inquiries raised in such Claim Notice; provided, however, the Securityholder Representative shall only be entitled to such access (x) to the extent that such access does not affect any legal privilege relating to the Surviving Corporation, Acquiror, or any other Indemnified Party, (y) to the extent such access does not conflict with any applicable Law, and (z) after such date.the Securityholder Representative executes Acquiror’s standard non-disclosure agreement. -62- (b) If an Indemnified Party shall have received from the Indemnifying Party (or the Securityholder Representative Committee if on behalf of the Indemnified Party is a Parent Indemnified PartyIndemnifying Parties shall not object in writing within thirty (30) within twenty (20) Business Days following days of delivery of a Claim Notice by such Indemnified Party, delivery of a written notice setting forth of objection containing a reasonably detailed description of the Indemnifying Party’s facts and circumstances supporting an objection to the applicable claim (or a “Claim Objection Notice”), such failure to so object shall be an irrevocable acknowledgment by the Securityholder Representative Committee’s if on behalf of the Indemnifying Parties that the Indemnified Party is a Parent Indemnified Party) objections entitled to the full amount of the claim for Losses set forth in such Claim Notice (an “Unobjected Claim”). In such event, Acquiror and the Securityholder Representative shall, as promptly as practicable thereafter (and in any event within two (2) Business Days thereafter), deliver a joint written instruction to the Escrow Agent to release to Acquiror from the Indemnity Escrow Fund an amount of cash equal to the amount of Losses set forth in the Unobjected Claim. Should the amount then-remaining in the Indemnity Escrow Fund, if any, be insufficient to satisfy in whole the full amount of the Unobjected Claim, then, subject to any applicable limitations set forth in this Article VIII, each Indemnifying Party shall, within thirty (30) days following the date of such failure to so object, pay to Acquiror in cash such Indemnifying Party’s (or the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) reasons for Pro Rata Portion of such objection, then the parties shall negotiate in good faith for a period of at least twenty (20) Business Days from the date the Indemnified Party receives such objection notice (such period is hereinafter referred to as the “Negotiation Period”). After the Negotiation Period, if the parties still cannot agree regarding such claim, the Indemnified Party may, at any time thereafter, until the expiration of the applicable statute of limitations with respect to its claim for indemnification, commence legal proceedings against the Indemnifying Party to enforce its rights to indemnification from and against any Losses described in the underlying Claim Noticeshortfall. (c) In the event that the Indemnified Party commences an Action in order to recover Losses hereunder, upon final determination of Securityholder Representative shall deliver a court of competent jurisdiction with respect thereto, the non-prevailing party in such Action shall reimburse the prevailing party’s reasonable costs and expenses (including reasonable attorneys’ fees) incurred in connection with such Action. (d) Following the final determination of any amounts owed to a Parent Indemnified Party Claim Objection Notice in accordance with Section 8.4(b), the terms Securityholder Representative and Acquiror shall attempt in good faith to agree upon the rights of this Article VIIIthe respective parties with respect to each of such claims. If the Securityholder Representative and Acquiror should so agree, a memorandum setting forth such agreement shall be prepared and subject to terms and conditions of this Article VIIIsigned by both parties (a “Resolution Memorandum”). In such event, (i) from the Escrow Fund pursuant to the terms of this Article VIII, Parent Acquiror and the Securityholder Representative Committee shall jointly instruct the Escrow Agent to shall, as promptly disburse such amounts from the Escrow Fund to such Indemnified Party in accordance with the Escrow Agreement, or (ii) directly from any Company Securityholder Indemnifying Party pursuant to this Article VIII, such Company Securityholder Indemnifying Party shall promptly as practicable thereafter (and in any event with three within two (32) Business Days) following Days thereafter), deliver a joint written instruction to the Escrow Agent to release to Acquiror from the Indemnity Escrow Fund an amount of cash equal to the amount of Losses set forth in the Resolution Memorandum . Should the amount then-remaining in the Indemnity Escrow Fund, if any, be insufficient to satisfy in whole the full amount set forth in such determination pay such amounts Resolution Memorandum, then, subject to such Parent Indemnified Party. Following the final determination of any amounts owed to a Company Securityholder Indemnified Party from any Parent Indemnifying Party pursuant to applicable limitations set forth in this Article VIII, such Parent each Indemnifying Party shall promptly shall, within thirty (and 30) days following the date of such failure to so object, pay to Acquiror in any event with three (3) Business Days) following cash such determination pay Indemnifying Party’s Pro Rata Portion of such amounts to such Company Securityholder Indemnified Partyshortfall.

Claim Procedures. (a) An Indemnified Party shall give As soon as Buyer becomes aware of any Potential Claim, Buyer shall, by no later than thirty (30) days after Buyer first becomes aware of said Potential Claim, provide the Indemnifying Party (or the Securityholder Representative Committee if the Indemnified Party is a Parent Indemnified Party) reasonably prompt Shareholders with written notice of any matter which an Indemnified Party has determined has given or would reasonably give rise to indemnification under this Agreement describing in reasonable detail, said Potential Claim. As part of its written notice to the extent then knownShareholders, Buyer shall supply the facts Shareholders with reasonable backup documentation supporting its Potential Claim. A Potential Claim shall be deemed invalid if written notice thereof is not received by Shareholders (i) within thirty (30) days after Buyer first became aware of said Potential Claim and circumstances with respect to such claim and stating (ii) by no later than one (1) year after the amount Closing, even if said one (1) -year date is less than ten (10) days after Buyer first became aware of the Loss, if known, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises (such notice a “Claim Notice”). With respect to a breach of any representation or warranty, the Claim Notice must be received on or prior to the date on which the representation or warranty on which such claim is based ceases to survive as set forth in Section 8.1, irrespective of whether the subject matter of such claim shall have occurred before or after such datesaid Potential Claim. (b) If an Indemnified Party shall have received from Within thirty (30) days after Buyer provides written notice of a Potential Claim to the Indemnifying Party (or Shareholders, Shareholders and Buyer will attempt to reach agreement on whether the Securityholder Representative Committee if the Indemnified Party Potential Claim is a Parent Indemnified PartyValid Claim and, if they are in agreement that the Potential Claim is a Valid Claim, the amount attributable to the Valid Claim. If the Shareholders and Buyer are unable to reach agreement within said thirty (30) within twenty (20-day period, then any controversy or claim arising out of or relating to the Potential Claim shall be settled and resolved by binding arbitration in accordance with this provision, and judgment on the award rendered by the arbitrator(s) Business Days following delivery of a Claim Notice may be entered in any court having jurisdiction thereof. Any one party to this Agreement may initiate arbitration by such Indemnified Party, a delivering written notice setting forth the Indemnifying Party’s (or the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) objections thereof to the claim set forth other party. Such written notice shall state the intent of the party to have the controversy represented by the Potential Claim resolved by arbitration, shall specify the Potential Claim, and shall designate an arbitrator who shall not have an economic, social or other relationship to the party requesting arbitration ("independent" arbitrator). Delivery may be effected by depositing a notice of such intention addressed to each party, sent by registered mail, return receipt requested, sealed and postage prepaid in the United States Mail, by facsimile transmission, or by personal delivery. Arbitration shall be by the arbitrator so designated unless the other party to whom notice has been delivered requests arbitration by three independent arbitrators within ten (10) days after receipt of the notice of arbitration and designation of arbitrator. If such Claim Notice a request is made, the party making it shall designate a second independent arbitrator and the Indemnifying Party’s (or two arbitrators so designated shall select a third independent arbitrator. The arbitration shall be conducted by the Securityholder Representative Committee’s if arbitrator(s) pursuant to the Indemnified Party is a Parent Indemnified Party) reasons for such objection, then the parties shall negotiate in good faith for a period of at least twenty (20) Business Days from the date the Indemnified Party receives such objection notice (such period is hereinafter referred to as the “Negotiation Period”). After the Negotiation Period, if the parties still cannot agree regarding such claim, the Indemnified Party may, at any time thereafter, until the expiration provisions of the applicable statute California Code of limitations with respect Civil Procedure relating to its claim civil arbitrations and the Rules of Court for indemnificationthe California Superior Court, commence legal proceedings against as may be amended and existing from time to time. A decision of any two arbitrators shall be sufficient to constitute an enforceable award under the Indemnifying Party to enforce its rights to indemnification from and against any Losses described provisions of this section. The costs incurred in the underlying Claim Notice. (carbitration, including the fees paid to the arbitrator(s) In shall be shared equally by the event that the Indemnified Party commences an Action in order parties. The arbitrator(s) shall be entitled to recover Losses hereunder, upon final determination of a court of competent jurisdiction with respect thereto, the non-prevailing party in such Action shall reimburse the prevailing party’s reasonable costs and expenses (including reasonable attorneys’ fees) incurred retain legal counsel in connection with the arbitration of the dispute submitted to arbitration at the joint expense of the parties during the arbitration proceeding. If any party to this Agreement refuses to cooperate voluntarily and without court order in the arbitration process described herein, then, provided that notice of the time and place of the arbitration hearing is given to such Action. (d) Following party, the arbitration shall proceed in the absence of such party. Any award made by arbitration shall be final determination and binding on each party to this Agreement, and at the election of any amounts owed to a Parent Indemnified Party in accordance with the terms of this Article VIII, and subject to terms and conditions of this Article VIII, (i) from the Escrow Fund pursuant party to the terms of this Article VIIIarbitration, Parent and a judgment on the Securityholder Representative Committee shall jointly instruct the Escrow Agent to promptly disburse such amounts from the Escrow Fund to such Indemnified Party in accordance with the Escrow Agreement, or (ii) directly from any Company Securityholder Indemnifying Party pursuant to this Article VIII, such Company Securityholder Indemnifying Party shall promptly (and arbitration award may be entered in any event court having jurisdiction thereof. The arbitrator(s) shall be empowered to award costs and reasonable attorney's fees in connection with three (3any matter submitted to the arbitrator(s) Business Days) following such determination pay such amounts to such Parent Indemnified Party. Following the final determination of any amounts owed to a Company Securityholder Indemnified Party from any Parent Indemnifying Party pursuant to this Article VIII, such Parent Indemnifying Party shall promptly (and in any event with three (3) Business Days) following such determination pay such amounts to such Company Securityholder Indemnified Partyfor determination.

Claim Procedures. (a) An In order for an Investor Indemnified Party shall give the Indemnifying or an AT&T Indemnified Party (any of them, an “Indemnified Party”) to duly make a valid claim under Section 8.2 or the Securityholder Representative Committee if Section 8.3, the Indemnified Party is a Parent Indemnified Party) reasonably prompt notice of any matter must (promptly, but in no event more than 20 Business Days, following the first date following the Closing Date on which an such Indemnified Party has determined has given knowledge of facts, matters or would circumstances from which it is reasonably apparent that such an occurrence is likely to have occurred; provided, that no failure to give notice of such claim prior to the expiration of such 20 Business Day period will relieve such Indemnifying Party from any obligation under this Article VIII, except to the extent such failure actually and materially prejudices such Indemnifying Party) provide written notice to AT&T (for claims made by Investor Indemnified Parties) or to Investor (for claims made by AT&T Indemnified Parties) (the recipient of such notice, the “Indemnifying Party”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 8.2 or Section 8.3 which the Indemnified Party alleges to have occurred, a reasonable description of the facts and circumstances giving rise to indemnification under this Agreement describing such occurrences in reasonable detaillight of the facts and circumstances then known to the Indemnified Party, the estimated amount of Losses actually incurred or suffered as the result thereof (to the extent then ascertainable), and a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent then knownpracticable, the facts and circumstances with respect to such claim and stating the amount of the Loss, if known, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises any other material details pertaining thereto (such notice a “Claim Notice”); provided, that no defect in the information contained in such Claim Notice from the Indemnified Party to any Indemnifying Party will relieve such Indemnifying Party from any obligation under this Article VIII except to the extent such defect actually and materially prejudices such Indemnifying Party. With respect The Indemnified Party shall cooperate with and provide to a breach the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of any representation or warranty, determining the validity of the allegations made in the Claim Notice must and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use reasonable best efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be received made so as to preserve any applicable attorney-client or work product privileges. (b) In the event the Claim Notice results from any Action asserted or threatened against, the Indemnified Party by a third party (other than a Tax Claim) (a “Third Party Claim”): (i) The Indemnified Party shall provide the Claim Notice to the Indemnifying Party no later than the 20th Business Day following the Indemnified Party’s receipt of the Third Party Claim, and in any event no later than the 20th Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that if either such Business Day occurs on or prior to the date on which Closing Date, the representation or warranty on which Claim Notice shall be timely provided if it is provided no later than the Business Day following the Closing Date; provided, that no failure by the Indemnified Party to give such claim is based ceases Claim Notice during such 20 Business Day period will relieve the Indemnifying Party from any obligation under this Article VIII, except to survive as set forth in Section 8.1, irrespective of whether the subject matter of extent such claim shall have occurred before or after failure actually and materially prejudices such dateIndemnifying Party. (bii) If an Indemnified Party shall have received from During the Indemnifying Party (or period ending on the Securityholder Representative Committee if earlier of the Indemnified Party is a Parent Indemnified Party) within twenty (20) Business Days 15th calendar day following delivery of a Claim Notice by such Indemnified Party, a written notice setting forth the Indemnifying Party’s (or receipt of the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) objections to the claim set forth in such Claim Notice and the fifth calendar day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party’s (or the Securityholder Representative Committee’s if Party shall be entitled to notify the Indemnified Party is a Parent Indemnified Party) reasons for such objectionof its election to assume and control the defense of the Third Party Claim, then stating that the parties shall negotiate in good faith for a period of at least twenty (20) Business Days from the date Indemnifying Party will, and thereby covenants to, indemnify, defend and hold harmless the Indemnified Party receives such objection notice (such period is hereinafter referred to as from and against the “Negotiation Period”). After the Negotiation Period, if the parties still cannot agree regarding such claim, entirety of any and all Losses the Indemnified Party maymay suffer resulting from, at any time thereafterarising out of, until the expiration of the applicable statute of limitations with respect to its claim for indemnificationrelating to, commence legal proceedings against the Indemnifying Party to enforce its rights to indemnification from and against any Losses described in the underlying Claim Noticenature of, or caused by the Third Party Claim. (cA) In the event that the Indemnifying Party duly and timely makes such election, the Indemnifying Party shall defend the Indemnified Party commences by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim; provided, however, that no Indemnifying Party shall have the right to assume control of the defense of such Third Party Claim if: (i) it relates to or otherwise arises in connection with any criminal or regulatory enforcement Action, (ii) it seeks injunctive or equitable relief, (iii) the Indemnified Party shall have reasonably concluded that there exists an Action actual or potential conflict of interest between the Indemnifying Party and the Indemnified Party in order to recover Losses hereunderconnection with the defense of the Third Party Claim, upon final determination of a court of competent jurisdiction (iv) settlement of, an adverse judgment with respect theretoto, or the conduct of the defense of the Third Party Claim by the Indemnifying Party is, in the good faith judgment of the Indemnified Party, likely to be adverse to, the non-prevailing party Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business), (v) at any point the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently or (vi) such Third Party Claim is primarily related to Taxes. The Indemnified Party shall be entitled but not obligated to participate in any such Action shall reimburse defense and to employ separate counsel of its choosing for such purpose; provided, that the prevailing party’s reasonable costs fees and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 8.4 unless the Indemnifying Party fails to conduct the defense of the Third Party Claim actively and diligently. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such claims without the prior written consent of the Indemnified Party (which consent shall not be unreasonably conditioned, withheld or delayed), unless such judgment, settlement, compromise or offer to settle, compromise or cease to defend such Third Party Claim (i) provides for the payment by the Indemnifying Party of money as sole relief for the claimant, (ii) results in the full and general release of all Indemnified Parties from all liabilities arising or relating to, or in connection with, the Third Party Claim, and (iii) involves no finding or admission of any violation of Law or the rights of any Person and no effect on any other claims that may be made against the Indemnified Party or any of its Affiliates or NewCo or and of its Subsidiaries. (B) If the Indemnifying Party does not duly and timely make such election, or otherwise at any time fails to conduct the defense of the Third Party Claim actively and diligently, the Indemnified Party shall be entitled but not obligated (subject to Section 8.6) to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 8.4(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third Party Claim shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or shall seek indemnification hereunder with respect to such matter, unless the Indemnified Party assumed control of the defense of the Third Party Claim because the Indemnifying Party failed to conduct such defense actively and diligently. In the event that the Indemnified Person conducts the defense of the Third Party Claim pursuant to this Section 8.4(b)(ii)(B), the Indemnifying Party will (i) advance the Indemnified Person promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ feesfees and expenses) incurred and (ii) remain responsible for any and all other Losses that the Indemnified Person may incur or suffer resulting from, arising out of, relating to, in connection the nature of or caused by the Third Party Claim to the fullest extent provided in this Article VIII. Except as expressly contemplated by this Section 8.4(b)(ii)(B), the Indemnifying Party shall have no liability with such Actionrespect to a Third Party Claim settled without its prior written consent. (diii) Following the final determination of any amounts owed to a Parent The Indemnified Party in accordance with the terms of this Article VIII, and subject to terms and conditions of this Article VIII, (i) from the Escrow Fund pursuant to the terms of this Article VIII, Parent and the Securityholder Representative Committee shall jointly instruct the Escrow Agent to promptly disburse such amounts from the Escrow Fund to such Indemnified Party in accordance with the Escrow Agreement, or (ii) directly from any Company Securityholder Indemnifying Party pursuant to this Article VIII, such Company Securityholder Indemnifying Party shall promptly (cooperate in order to ensure the proper and in any event with three (3) Business Days) following such determination pay such amounts adequate investigation and defense of all Third Party Claims, including by providing reasonable access to such Parent Indemnified Partyeach other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. Following the final determination of any amounts owed to a Company Securityholder The Indemnified Party from any Parent Indemnifying Party pursuant to this Article VIII, such Parent and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (and including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in any event with three (3) Business Days) following such determination pay such amounts to such Company Securityholder good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall consider such comments in good faith.

Claim Procedures. (a) An Indemnified Party shall give the Indemnifying Party (or the Securityholder Representative Committee if the Indemnified Party If a Person is a Parent Indemnified Party) reasonably prompt notice of any matter which an Indemnified Party has determined has given or would reasonably give rise entitled to indemnification under this Agreement describing in reasonable detailArticle VII (the “Indemnified Party”), such party may make claim under this Article VII (a “Claim”) by delivering to the party required to provide indemnification hereunder (the “Indemnifying Party”) written notice of such claim (the “Claims Notice”). The Claims Notice shall state the nature and basis of such Claim or action, to the extent then known, and the facts and circumstances with respect to amount in dispute under such claim and stating or action, if known at such time. The Indemnifying Party shall respond to the Indemnified Party (a “Claim Response”) within thirty (30) days (the “Response Period”) after the date that the Claims Notice is received by the Indemnifying Party. If the Indemnifying Party fails to give a Claim Response within the Response Period, the Indemnifying Party will be deemed not to dispute the Claim described in the related Claims Notice. If the Indemnifying Party elects not to dispute a Claim described in a Claims Notice, whether by failing to give a timely Claim Response or by written notice to the Indemnified Party, then the amount of Damages, to the Lossextent known at the time, if knownset forth in such Claims Notice will be conclusively deemed to be an obligation of the Indemnifying Party, and containing the Indemnifying Party shall pay within thirty (30) days after the last day of the applicable Response Period the amount of Damages due pursuant to this Article VII. If the Indemnifying Party delivers a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises (such notice a “Claim Notice”). With respect Response not relating to a breach Third-Party Claim within the Response Period indicating that it disputes one or more of any representation or warrantythe matters identified in the Claims Notice, the Claim Notice must Indemnifying Party and the Indemnified Party shall promptly meet and act in good faith to settle the dispute before otherwise seeking to enforce their respective rights under this Article VII. Any obligation of a Harbinger Party to indemnify the Company Indemnified Parties pursuant to Section 7.2 shall be received payable in shares of Company Common Stock or, at the sole option of such Harbinger Party, cash. For purposes of making any such indemnification payments hereunder, each share of Company Common Stock shall be valued at the volume weighted average price (computed using Bloomberg) of a share of Company Common Stock for the 30-trading day period ending on or prior to the date preceding the date on which the representation or warranty on which such claim payment is based ceases to survive as set forth in Section 8.1, irrespective of whether the subject matter of such claim shall have occurred before or after such datemade. (b) If an Indemnified Party shall have received from the Indemnifying Party (or the Securityholder Representative Committee if the Indemnified Party is a Parent Indemnified Party) within twenty (20) Business Days following delivery of a Claim Notice by such Indemnified Party, a written notice setting forth the Indemnifying Party’s (or the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) objections to the claim set forth in such Claim Notice and the Indemnifying Party’s (or the Securityholder Representative Committee’s if the Indemnified Party is a Parent Indemnified Party) reasons for such objection, then the parties shall negotiate in good faith for a period of at least twenty (20) Business Days from the date the Indemnified Party receives such objection notice (such period is hereinafter referred to as the “Negotiation Period”). After the Negotiation Period, if the parties still cannot agree regarding such claim, the Indemnified Party may, at any time thereafter, until the expiration of the applicable statute of limitations with respect to its claim for indemnification, commence legal proceedings against the Indemnifying Party to enforce its rights to indemnification from and against any Losses described in the underlying Claim Notice. (c) In the event that the Indemnified Party commences an Action in order to recover Losses hereunder, upon final determination of a court of competent jurisdiction with respect thereto, the non-prevailing party in such Action shall reimburse the prevailing party’s reasonable costs and expenses (including reasonable attorneys’ fees) incurred in connection with such Action. (d) Following the final determination of any amounts owed to a Parent Indemnified Party in accordance with the terms of this Article VIII, and subject to terms and conditions of this Article VIII, (i) from the Escrow Fund pursuant to the terms of this Article VIII, Parent and the Securityholder Representative Committee shall jointly instruct the Escrow Agent to promptly disburse such amounts from the Escrow Fund to such Indemnified Party in accordance with the Escrow Agreement, or (ii) directly from any Company Securityholder Indemnifying Party pursuant to this Article VIII, such Company Securityholder Indemnifying Party shall promptly (and in any event with three (3) Business Days) following such determination pay such amounts to such Parent Indemnified Party. Following the final determination of any amounts owed to a Company Securityholder Indemnified Party from any Parent Indemnifying Party pursuant to this Article VIII, such Parent Indemnifying Party shall promptly (and in any event with three (3) Business Days) following such determination pay such amounts to such Company Securityholder Indemnified Party.