Common use of Claims for Indemnity Clause in Contracts

Claims for Indemnity. (a) A claim for indemnity shall be made by the claiming party at any time prior to the applicable Claim Limitation Anniversary (as defined below) by the giving of written notice thereof to the other party. Such written notice shall set forth in reasonable detail the basis upon which such claim for indemnity is made. In the event that any bona fide claim is made within such period, the indemnity relating to such claim shall survive until such claim is resolved. No claim for indemnity under Section 9.1 or Section 9.2 may be made at any time at or after the date twelve (12) months following the Closing Date (excluding claims for indemnity with respect to the representations and warranties contained in Section 3.2, Section 3.3, Section 3.7(a), Section 3.8, Section 3.9 and Section 3.10, as such claims may be made for the greater of twelve (12) months following the Closing Date and thirty (30) days after the expiration of the statute of limitations period applicable to the underlying matters covered by these provisions) and no indemnity for claims under Section 9.1 or Section 9.2 shall be available thereafter in accordance with the provisions of this ARTICLE IX. The applicable claim limitation period, as provided in the preceding sentence, is hereby referred to as the “Claim Limitation Anniversary.” (b) In the event that any person or entity not a party hereto shall make any demand or claim or file or threaten to file any lawsuit, which demand, claim or lawsuit could result in any Loss to a party hereto of the kind for which such party is entitled to indemnification pursuant to Section 9.1 or Section 9.2, such indemnified party shall notify the indemnifying party of such demand, claim or lawsuit in writing within thirty (30) calendar days of such demand, claim, filing or threat specifying in reasonable detail the source of the Loss or potential Loss; provided, however, that any failure by the indemnified party to so notify the indemnifying party shall not relieve the indemnifying party from its obligations hereunder, except to the extent that the indemnifying party is actually prejudiced by such failure to be given such notice. Following receipt of notice of a demand, claim or lawsuit, the indemnifying party shall have the option, at its cost and expense, to assume the defense of such matter and to retain counsel (not reasonably objected to by the indemnified party) to defend any such demand, claim or lawsuit, and the indemnifying party shall not be liable to the indemnified party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the defense of such claim or litigation, other than reasonable fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party elects to defend, compromise or settle such demand, claim or lawsuit, the indemnified party shall cooperate in the defense against, or compromise or settlement of, such demand, claim or lawsuit, including making available to the indemnifying party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense. The indemnified party shall have the option of participating in (but not controlling) the defense of such demand, claim or lawsuit with counsel reasonably acceptable to the indemnifying party (which shall be at the cost and expense of the indemnified party unless (1) counsel to the indemnified party reasonably determines in writing that joint representation would be inappropriate due to a conflict or potential conflict of interest or the availability of defenses not available to the indemnifying party or (2) the indemnifying party fails to assume the defense of such demand, claim or lawsuit within a reasonable period of time following written notice thereof), and counsel for each party shall, to the extent consistent with its professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement of any such demand, claim or lawsuit, the indemnifying party or the indemnified party, as the case may be, shall act in good faith and shall enter into only such settlement as the other party shall consent to, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that an indemnifying party may enter into a cash settlement without the consent of an indemnified party so long as such settlement contains an unconditional release of such indemnified party from all liabilities arising out of such demand, claim or lawsuit. An indemnifying party shall not be liable for any settlement not made in accordance with the preceding sentence.

Claims for Indemnity. (a) A claim for indemnity shall be made by Concurrently with the claiming party at any time prior delivery of an Indemnity Notice under the Merger Agreement, Parent will deliver to the applicable Claim Limitation Anniversary Escrow Agent a certificate in substantially the form of ANNEX I attached hereto (as defined below) a "CERTIFICATE OF INSTRUCTION"). No Certificate of Instruction may be delivered by Parent after the giving close of business on the business day immediately preceding the Termination Date. The Escrow Agent shall give written notice thereof to the other party. Such written notice shall set forth in reasonable detail Shareholders of its receipt of a Certificate of Instruction not later than the basis upon which second business day next following receipt thereof, together with a copy of such claim for indemnity is made. In the event that any bona fide claim is made within such period, the indemnity relating to such claim shall survive until such claim is resolved. No claim for indemnity under Section 9.1 or Section 9.2 may be made at any time at or after the date twelve (12) months following the Closing Date (excluding claims for indemnity with respect to the representations and warranties contained in Section 3.2, Section 3.3, Section 3.7(a), Section 3.8, Section 3.9 and Section 3.10, as such claims may be made for the greater Certificate of twelve (12) months following the Closing Date and thirty (30) days after the expiration of the statute of limitations period applicable to the underlying matters covered by these provisions) and no indemnity for claims under Section 9.1 or Section 9.2 shall be available thereafter in accordance with the provisions of this ARTICLE IX. The applicable claim limitation period, as provided in the preceding sentence, is hereby referred to as the “Claim Limitation AnniversaryInstruction.” (b) In If the event that any person or entity not a party hereto Escrow Agent (i) shall make any demand or claim or file or threaten to file any lawsuitnot, which demand, claim or lawsuit could result in any Loss to a party hereto of the kind for which such party is entitled to indemnification pursuant to Section 9.1 or Section 9.2, such indemnified party shall notify the indemnifying party of such demand, claim or lawsuit in writing within thirty (30) calendar days following its receipt of a Certificate of Instruction (the "OBJECTION PERIOD"), have received from the Shareholders a certificate in substantially the form of ANNEX II attached hereto (an "OBJECTION CERTIFICATE") disputing their obligation to pay the Owed Amount referred to in such demandCertificate of Instruction, claim, filing or threat specifying (ii) shall have received such an Objection Certificate within the Objection Period and shall thereafter have received either (A) a certificate from Parent and the Shareholders substantially in reasonable detail the source form of ANNEX III attached hereto (a "RESOLUTION CERTIFICATE") stating that Parent and the Shareholders have agreed that the Owed Amount referred to in such Certificate of Instruction (or a specified portion thereof) is payable to one or more of the Loss Indemnified Parties or potential Loss; provided(B) a copy of a final, however, nonappealable order of a court of competent jurisdiction (accompanied by a certificate of Parent substantially in the form of ANNEX IV attached hereto (a "LITIGATION CERTIFICATE")) stating that any failure the Owed Amount referred to in such Certificate of Instruction (or a specified portion thereof) is payable to one or more of the Indemnified Parties by the indemnified party to so notify Shareholders, then the indemnifying party shall not relieve Escrow Agent shall, on the indemnifying party from its obligations hereunder, except to second business day next following (A) the extent that expiration of the indemnifying party is actually prejudiced by such failure to be given such notice. Following Objection Period or (B) the Escrow Agent's receipt of notice of a demand, claim Resolution Certificate or lawsuit, the indemnifying party shall have the option, at its cost and expense, to assume the defense of such matter and to retain counsel (not reasonably objected to by the indemnified party) to defend any such demand, claim or lawsuit, and the indemnifying party shall not be liable to the indemnified party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the defense of such claim or litigation, other than reasonable fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party elects to defend, compromise or settle such demand, claim or lawsuit, the indemnified party shall cooperate in the defense against, or compromise or settlement of, such demand, claim or lawsuit, including making available to the indemnifying party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense. The indemnified party shall have the option of participating in (but not controlling) the defense of such demand, claim or lawsuit with counsel reasonably acceptable to the indemnifying party (which shall be at the cost and expense of the indemnified party unless (1) counsel to the indemnified party reasonably determines in writing that joint representation would be inappropriate due to a conflict or potential conflict of interest or the availability of defenses not available to the indemnifying party or (2) the indemnifying party fails to assume the defense of such demand, claim or lawsuit within a reasonable period of time following written notice thereof), and counsel for each party shall, to the extent consistent with its professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement of any such demand, claim or lawsuit, the indemnifying party or the indemnified partyLitigation Certificate, as the case may be, shall act in good faith and shall enter into only such settlement as deliver to Parent from each Shareholder's portion of the other party shall consent to, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that an indemnifying party may enter into a cash settlement without the consent of an indemnified party so long as such settlement contains an unconditional release of such indemnified party from all liabilities arising out of such demand, claim or lawsuit. An indemnifying party shall not be liable for any settlement not made Escrow Shares (pro rata in accordance with paragraph (g) of this SECTION 5 hereto) a certificate or certificates evidencing in the preceding sentence.aggregate that number of whole Escrow Shares (ignoring fractions), equal to the quotient obtained by dividing (x) the Owed Amount (or, if such Resolution Certificate or Litigation Certificate specifies that a lesser amount than such Owed Amount is payable, such lesser amount) by (y) the Per Share Price (as hereinafter defined), calculated as of the date of the Litigation Certificate or the Resolution Certificate, as applicable, or if no Objection Certificate is received, the Certificate of Instruction. For purposes of this Agreement:

Claims for Indemnity. (a) A claim for indemnity shall under Sections 8.03 or 8.04 of this Agreement may be made by the claiming party at any time prior to the applicable Claim Limitation Anniversary (as defined below) by the giving of written notice thereof to the other party. Such written notice shall set forth in reasonable detail the basis upon which such claim for indemnity is made. In the event that any bona fide claim is made within such period, the indemnity relating to such claim shall survive until such claim is resolved. No claim for indemnity under Section 9.1 or Section 9.2 may be made at any time at or after the date twelve (12) months following the Closing Date (excluding claims for indemnity with respect to the representations and warranties contained in Section 3.2, Section 3.3, Section 3.7(a), Section 3.8, Section 3.9 and Section 3.10, as such claims may be made for the greater of twelve (12) months following the Closing Date and thirty (30) days after the expiration of the statute of limitations period applicable to the underlying matters covered by these provisions) and no indemnity for claims under Section 9.1 or Section 9.2 shall be available thereafter in accordance with the provisions of this ARTICLE IX. The applicable claim limitation period, as provided in the preceding sentence, is hereby referred to as the “Claim Limitation Anniversary.” (b) In Promptly after receipt by either party of notice of the event that assertion of any person or entity not a party hereto shall make any demand or claim or file the commencement of any action, suit or threaten proceeding with respect to file any lawsuitwhich a claim for indemnification will be made under this Agreement, which demandsuch party (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") and will thereafter keep the Indemnitor reasonably informed with respect thereto, claim or lawsuit could result in any Loss to a party hereto provided that failure of the kind for which Indemnified Party to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent, if any, it shall have been materially prejudiced thereby. In case any such party action, suit or proceeding is brought against an Indemnified Party, the Indemnitor shall be entitled to indemnification pursuant participate in (and, in its discretion, to Section 9.1 or Section 9.2assume) the defense thereof with counsel reasonably satisfactory to the Indemnified Party, such indemnified party shall notify the indemnifying party of such demand, claim or lawsuit in writing within thirty (30) calendar days of such demand, claim, filing or threat specifying in reasonable detail the source of the Loss or potential Loss; provided, however, that the Indemnified Party shall be entitled to participate in any failure such action, suit or proceeding with counsel of its own choice at the expense of the Indemnitor if, in the good faith judgment of the Indemnified Party's counsel, representation by the indemnified party Indemnitor's counsel may present a conflict of interest or that there may be defenses available to so notify the indemnifying party Indemnified Party which are different from or in addition to those available to the Indemnitor. The Indemnitor will not settle any claim, action, suit or proceeding which would give rise to the Indemnitor's liability under its indemnity unless such settlement includes as an unconditional term thereof the giving by the claimant or plaintiff of a release of the Indemnified Party, in form and substance satisfactory to the Indemnified Party and its counsel, from all liability with respect to such claim, action, suit or proceeding. If the Indemnitor assumes the defense of any claim, action, suit or proceeding as provided in this Section 4.1, the Indemnified Party shall be permitted to join in the defense thereof with counsel of its own selection and at its own expense. If the Indemnitor shall not relieve the indemnifying party from its obligations hereunder, except to the extent that the indemnifying party is actually prejudiced by such failure to be given such notice. Following receipt of notice of a demand, claim or lawsuit, the indemnifying party shall have the option, at its cost and expense, to assume the defense of any claim, action, suit or proceeding, the Indemnified Party may defend against such matter and claim, action, suit or proceeding in such manner as it may deem appropriate, provided that an Indemnified Party shall not settle any claim, action, suit or proceeding which would give rise to retain counsel (not reasonably objected to by the indemnified party) to defend any such demandIndemnitor's liability under its indemnity without the prior written consent of the Indemnitor, claim or lawsuit, and the indemnifying party which consent shall not be liable to the indemnified party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the defense of such claim or litigation, other than reasonable fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party elects to defend, compromise or settle such demand, claim or lawsuit, the indemnified party shall cooperate in the defense against, or compromise or settlement of, such demand, claim or lawsuit, including making available to the indemnifying party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense. The indemnified party shall have the option of participating in (but not controlling) the defense of such demand, claim or lawsuit with counsel reasonably acceptable to the indemnifying party (which shall be at the cost and expense of the indemnified party unless (1) counsel to the indemnified party reasonably determines in writing that joint representation would be inappropriate due to a conflict or potential conflict of interest or the availability of defenses not available to the indemnifying party or (2) the indemnifying party fails to assume the defense of such demand, claim or lawsuit within a reasonable period of time following written notice thereof), and counsel for each party shall, to the extent consistent with its professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement of any such demand, claim or lawsuit, the indemnifying party or the indemnified party, as the case may be, shall act in good faith and shall enter into only such settlement as the other party shall consent to, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that an indemnifying party may enter into a cash settlement without the consent of an indemnified party so long as such settlement contains an unconditional release of such indemnified party from all liabilities arising out of such demand, claim or lawsuit. An indemnifying party shall not be liable for any settlement not made in accordance with the preceding sentence.

Claims for Indemnity. (a) A claim for indemnity shall be made by Concurrently with the claiming party at any time prior delivery of an Indemnity Notice to the applicable Claim Limitation Anniversary Shareholders, Parent will deliver to the Escrow Agent a certificate in substantially the form of Annex I attached hereto (as defined below) a "Certificate of Instruction"). No Certificate of Instruction may be delivered by Parent after the giving close of business on the business day immediately preceding the Termination Date. The Escrow Agent shall give written notice thereof to the other party. Such written notice shall set forth in reasonable detail Shareholders of its receipt of a Certificate of Instruction not later than the basis upon which second business day next following receipt thereof, together with a copy of such claim for indemnity is made. In the event that any bona fide claim is made within such period, the indemnity relating to such claim shall survive until such claim is resolved. No claim for indemnity under Section 9.1 or Section 9.2 may be made at any time at or after the date twelve (12) months following the Closing Date (excluding claims for indemnity with respect to the representations and warranties contained in Section 3.2, Section 3.3, Section 3.7(a), Section 3.8, Section 3.9 and Section 3.10, as such claims may be made for the greater Certificate of twelve (12) months following the Closing Date and thirty (30) days after the expiration of the statute of limitations period applicable to the underlying matters covered by these provisions) and no indemnity for claims under Section 9.1 or Section 9.2 shall be available thereafter in accordance with the provisions of this ARTICLE IX. The applicable claim limitation period, as provided in the preceding sentence, is hereby referred to as the “Claim Limitation AnniversaryInstruction.” (b) In If the event that any person or entity not a party hereto Escrow Agent (i) shall make any demand or claim or file or threaten to file any lawsuitnot, which demand, claim or lawsuit could result in any Loss to a party hereto of the kind for which such party is entitled to indemnification pursuant to Section 9.1 or Section 9.2, such indemnified party shall notify the indemnifying party of such demand, claim or lawsuit in writing within thirty (30) calendar days following its receipt of a Certificate of Instruction (the "Objection Period"), have received from the Shareholders a certificate in substantially the form of Annex II attached hereto (an "Objection Certificate") disputing their obligation to pay the Owed Amount referred to in such demandCertificate of Instruction, claim, filing or threat specifying (ii) shall have received such an Objection Certificate within the Objection Period and shall thereafter have received either (A) a certificate from Parent and the Shareholders substantially in reasonable detail the source form of Annex III attached hereto (a "Resolution Certificate") stating that Parent and the Shareholders have agreed that the Owed Amount referred to in such Certificate of Instruction (or a specified portion thereof) is payable to one or more of the Loss Indemnified Parties or potential Loss; provided(B) a copy of a final, however, nonappealable order of a Board of Arbitration (accompanied by a certificate of Parent substantially in the form of Annex IV attached hereto (an "Arbitration Certificate")) stating that any failure the Owed Amount referred to in such Certificate of Instruction (or a specified portion thereof) is payable to one or more of the Indemnified Parties by the indemnified party to so notify Shareholders, then the indemnifying party shall not relieve Escrow Agent shall, on the indemnifying party from its obligations hereunder, except to second business day next following (A) the extent that expiration of the indemnifying party is actually prejudiced by such failure to be given such notice. Following Objection Period or (B) the Escrow Agent's receipt of notice of a demand, claim Resolution Certificate or lawsuit, the indemnifying party shall have the option, at its cost and expense, to assume the defense of such matter and to retain counsel (not reasonably objected to by the indemnified party) to defend any such demand, claim or lawsuit, and the indemnifying party shall not be liable to the indemnified party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the defense of such claim or litigation, other than reasonable fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party elects to defend, compromise or settle such demand, claim or lawsuit, the indemnified party shall cooperate in the defense against, or compromise or settlement of, such demand, claim or lawsuit, including making available to the indemnifying party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense. The indemnified party shall have the option of participating in (but not controlling) the defense of such demand, claim or lawsuit with counsel reasonably acceptable to the indemnifying party (which shall be at the cost and expense of the indemnified party unless (1) counsel to the indemnified party reasonably determines in writing that joint representation would be inappropriate due to a conflict or potential conflict of interest or the availability of defenses not available to the indemnifying party or (2) the indemnifying party fails to assume the defense of such demand, claim or lawsuit within a reasonable period of time following written notice thereof), and counsel for each party shall, to the extent consistent with its professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement of any such demand, claim or lawsuit, the indemnifying party or the indemnified partyan Arbitration Certificate, as the case may be, shall act in good faith and shall enter into only such settlement as the other party shall consent to, such consent not deliver to be unreasonably withheld, conditioned or delayed; provided, however, that an indemnifying party may enter into a cash settlement without the consent of an indemnified party so long as such settlement contains an unconditional release of such indemnified party Parent from all liabilities arising out of such demand, claim or lawsuit. An indemnifying party shall not be liable for any settlement not made in accordance with the preceding sentence.each

Claims for Indemnity. (a) A claim for indemnity shall be made by Concurrently with the claiming party at any time prior delivery of an Indemnity Notice to Motion 2000, Purchaser will deliver to the applicable Claim Limitation Anniversary Escrow Agent a certificate in substantially the form of Annex I attached hereto (as defined below) a "Certificate of Instruction"). No Certificate of Instruction may be delivered by Purchaser after the giving close of business on the business day immediately preceding the Termination Date. The Escrow Agent shall give written notice thereof to Motion 2000 of its receipt of a Certificate of Instruction not later than the other party. Such written notice shall set forth in reasonable detail the basis upon which second business day next following receipt thereof, together with a copy of such claim for indemnity is made. In the event that any bona fide claim is made within such period, the indemnity relating to such claim shall survive until such claim is resolved. No claim for indemnity under Section 9.1 or Section 9.2 may be made at any time at or after the date twelve (12) months following the Closing Date (excluding claims for indemnity with respect to the representations and warranties contained in Section 3.2, Section 3.3, Section 3.7(a), Section 3.8, Section 3.9 and Section 3.10, as such claims may be made for the greater Certificate of twelve (12) months following the Closing Date and thirty (30) days after the expiration of the statute of limitations period applicable to the underlying matters covered by these provisions) and no indemnity for claims under Section 9.1 or Section 9.2 shall be available thereafter in accordance with the provisions of this ARTICLE IX. The applicable claim limitation period, as provided in the preceding sentence, is hereby referred to as the “Claim Limitation AnniversaryInstruction.” (b) In If the event that any person or entity not a party hereto Escrow Agent (i) shall make any demand or claim or file or threaten to file any lawsuitnot, which demand, claim or lawsuit could result in any Loss to a party hereto of the kind for which such party is entitled to indemnification pursuant to Section 9.1 or Section 9.2, such indemnified party shall notify the indemnifying party of such demand, claim or lawsuit in writing within thirty (30) calendar days following its receipt of a Certificate of Instruction (the "Objection Period"), have received from Motion 2000 a certificate in substantially the form of Annex II attached hereto (an "Objection Certificate") disputing its obligation to pay the Owed Amount referred to in such demandCertificate of Instruction, claim, filing or threat specifying (ii) shall have received such an Objection Certificate within the Objection Period and shall thereafter have received either (x) a certificate from Purchaser and Motion 2000 substantially in reasonable detail the source form of Annex III attached hereto (a "Resolution Certificate") stating that Purchaser and Motion 2000 have agreed that the Owed Amount referred to in such Certificate of Instruction (or a specified portion thereof) is payable to one or more of the Loss Indemnified Parties or potential Loss; provided, however, that any failure by the indemnified party to so notify the indemnifying party shall not relieve the indemnifying party from its obligations hereunder, except to the extent that the indemnifying party is actually prejudiced by such failure to be given such notice. Following receipt of notice (y) a copy of a demandfinal, claim or lawsuit, the indemnifying party shall have the option, at its cost and expense, to assume the defense nonappealable order of such matter and to retain counsel a Board of Arbitration (not reasonably objected to accompanied by the indemnified party) to defend any such demand, claim or lawsuit, and the indemnifying party shall not be liable to the indemnified party for any fees a certificate of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the defense of such claim or litigation, other than reasonable fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party elects to defend, compromise or settle such demand, claim or lawsuit, the indemnified party shall cooperate Purchaser substantially in the defense against, or compromise or settlement of, such demand, claim or lawsuit, including making available to the indemnifying party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense. The indemnified party shall have the option form of participating in (but not controlling) the defense of such demand, claim or lawsuit with counsel reasonably acceptable to the indemnifying party (which shall be at the cost and expense of the indemnified party unless (1) counsel to the indemnified party reasonably determines in writing that joint representation would be inappropriate due to a conflict or potential conflict of interest or the availability of defenses not available to the indemnifying party or (2) the indemnifying party fails to assume the defense of such demand, claim or lawsuit within a reasonable period of time following written notice thereof), and counsel for each party shall, to the extent consistent with its professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement of any such demand, claim or lawsuit, the indemnifying party or the indemnified party, as the case may be, shall act in good faith and shall enter into only such settlement as the other party shall consent to, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that an indemnifying party may enter into a cash settlement without the consent of an indemnified party so long as such settlement contains an unconditional release of such indemnified party from all liabilities arising out of such demand, claim or lawsuit. An indemnifying party shall not be liable for any settlement not made in accordance with the preceding sentence.Annex IV

Claims for Indemnity. (a) A For a Buyer Indemnified Party to be entitled to any indemnification from the Stockholders, Buyer Indemnified Party will promptly notify the Stockholders in writing of a Loss indemnified under Section 11 or this Section 10 which arose in connection with a single event or a series of related events (a “Claim”) upon becoming aware of the existence of such Claim stating the amount claimed to be due and payable, the basis of the Claim and the provision or provisions of this Agreement under which such claim for indemnity shall be made is asserted. Within 60 days after receipt of such notice, the Stockholders will by the claiming party at any time prior written notice to Buyer Indemnified Party, either (a) concede liability as to the applicable amount claimed in such notice, (b) deny liability in whole as to such amount, or (c) concede liability in part and deny liability in part. If the parties are unable to resolve any dispute over a Claim Limitation Anniversary (as defined belowbrought under this Section 10.3(a) by the giving of within 30 days after Buyer Indemnified Party receives written notice thereof from the Stockholders denying liability in whole or in part, the parties will submit the dispute to the other party. Such written notice shall dispute resolution procedure set forth in reasonable detail the basis upon which such claim for indemnity is made. In the event that any bona fide claim is made within such period, the indemnity relating to such claim shall survive until such claim is resolved. No claim for indemnity under Section 9.1 or Section 9.2 may be made at any time at or after the date twelve (12) months following the Closing Date (excluding claims for indemnity with respect to the representations and warranties contained in Section 3.2, Section 3.3, Section 3.7(a), Section 3.8, Section 3.9 and Section 3.10, as such claims may be made for the greater of twelve (12) months following the Closing Date and thirty (30) days after the expiration of the statute of limitations period applicable to the underlying matters covered by these provisions) and no indemnity for claims under Section 9.1 or Section 9.2 shall be available thereafter in accordance with the provisions of this ARTICLE IX. The applicable claim limitation period, as provided in the preceding sentence, is hereby referred to as the “Claim Limitation Anniversary12.1.” (b) In For a Stockholder Indemnified Party to be entitled to any indemnification from Buyer, the event that any person or entity not Stockholder Indemnified Party will promptly notify Buyer in writing of a party hereto shall make any demand or claim or file or threaten to file any lawsuit, which demand, claim or lawsuit could result in any Loss to a party hereto Claim upon becoming aware of the kind for existence of such Claim stating the amount claimed to be due and payable, the basis of the Claim and the provision or provisions of this Agreement under which such party Claim is entitled to indemnification pursuant to Section 9.1 or Section 9.2, such indemnified party shall notify the indemnifying party asserted. Within 60 days after receipt of such demandnotice, claim or lawsuit in writing within thirty (30) calendar days of such demand, claim, filing or threat specifying in reasonable detail the source of the Loss or potential Loss; provided, however, that any failure Buyer will by the indemnified party to so notify the indemnifying party shall not relieve the indemnifying party from its obligations hereunder, except written notice to the extent that Stockholder Indemnified Party, either (a) concede liability as to the indemnifying party is actually prejudiced by such failure to be given amount claimed in such notice. Following receipt of notice of a demand, claim (b) deny liability in whole as to such amount, or lawsuit, the indemnifying party shall have the option, at its cost (c) concede liability in part and expense, to assume the defense of such matter and to retain counsel (not reasonably objected to by the indemnified party) to defend any such demand, claim or lawsuit, and the indemnifying party shall not be liable to the indemnified party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the defense of such claim or litigation, other than reasonable fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereofdeny liability in part. If the indemnifying party elects parties are not able to defend, compromise resolve any dispute over a Claim brought under this Section 10.3(b) within 30 days after the Stockholder Indemnified Party receives written notice from Buyer denying liability in whole or settle such demand, claim or lawsuitin part, the indemnified party shall cooperate in parties will submit the defense against, or compromise or settlement of, such demand, claim or lawsuit, including making available dispute to the indemnifying party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense. The indemnified party shall have the option of participating dispute resolution procedure set forth in (but not controlling) the defense of such demand, claim or lawsuit with counsel reasonably acceptable to the indemnifying party (which shall be at the cost and expense of the indemnified party unless (1) counsel to the indemnified party reasonably determines in writing that joint representation would be inappropriate due to a conflict or potential conflict of interest or the availability of defenses not available to the indemnifying party or (2) the indemnifying party fails to assume the defense of such demand, claim or lawsuit within a reasonable period of time following written notice thereof), and counsel for each party shall, to the extent consistent with its professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement of any such demand, claim or lawsuit, the indemnifying party or the indemnified party, as the case may be, shall act in good faith and shall enter into only such settlement as the other party shall consent to, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that an indemnifying party may enter into a cash settlement without the consent of an indemnified party so long as such settlement contains an unconditional release of such indemnified party from all liabilities arising out of such demand, claim or lawsuit. An indemnifying party shall not be liable for any settlement not made in accordance with the preceding sentenceSection 12.1.

Claims for Indemnity. (a) A claim for indemnity shall Concurrently with the delivery of an Indemnity Notice under the Merger Agreement, the Parent will deliver to the Escrow Agent a certificate in substantially the form of ANNEX I attached hereto (a "CERTIFICATE OF INSTRUCTION"). No Certificate of Instruction may be made delivered by the claiming party at any time prior Parent after the close of business on the business day immediately preceding the Termination Date. The Escrow Agent shall give written notice to the applicable Claim Limitation Anniversary (as defined below) by Escrow Representative of its receipt of a Certificate of Instruction not later than the giving fifth business day following receipt thereof, together with a copy of written notice thereof to the other party. Such written notice shall set forth in reasonable detail the basis upon which such claim for indemnity is made. In the event that any bona fide claim is made within such period, the indemnity relating to such claim shall survive until such claim is resolved. No claim for indemnity under Section 9.1 or Section 9.2 may be made at any time at or after the date twelve (12) months following the Closing Date (excluding claims for indemnity with respect to the representations and warranties contained in Section 3.2, Section 3.3, Section 3.7(a), Section 3.8, Section 3.9 and Section 3.10, as such claims may be made for the greater Certificate of twelve (12) months following the Closing Date and thirty (30) days after the expiration of the statute of limitations period applicable to the underlying matters covered by these provisions) and no indemnity for claims under Section 9.1 or Section 9.2 shall be available thereafter in accordance with the provisions of this ARTICLE IX. The applicable claim limitation period, as provided in the preceding sentence, is hereby referred to as the “Claim Limitation AnniversaryInstruction.” (b) In If the event that any person or entity not a party hereto Escrow Agent (i) shall make any demand or claim or file or threaten to file any lawsuitnot, which demand, claim or lawsuit could result in any Loss to a party hereto of the kind for which such party is entitled to indemnification pursuant to Section 9.1 or Section 9.2, such indemnified party shall notify the indemnifying party of such demand, claim or lawsuit in writing within thirty (30) calendar days following its receipt of a Certificate of Instruction (the "OBJECTION PERIOD"), have received from the Escrow Representative a certificate in substantially the form of ANNEX II attached hereto (an "OBJECTION CERTIFICATE") disputing the Company Stockholders' obligation to pay the Owed Amount referred to in such demandCertificate of Instruction, claim, filing or threat specifying (ii) shall have received such an Objection Certificate within the Objection Period and shall thereafter have received either (A) a certificate from Parent and the Escrow Representative substantially in reasonable detail the source form of ANNEX III attached hereto (a "RESOLUTION CERTIFICATE") stating that Parent and the Escrow Representative have agreed that the Owed Amount referred to in such Certificate of Instruction (or a specified portion thereof) is payable to one or more of the Loss Indemnified Persons or potential Loss; provided, however, (B) a copy of an order of a court of competent jurisdiction (accompanied by a certificate of Parent and the Escrow Representative substantially in the form of ANNEX IV attached hereto (a "LITIGATION CERTIFICATE")) stating that any failure the Owed Amount referred to in such Certificate of Instruction (or a specified portion thereof) is payable to one or more of the Indemnified Persons by the indemnified party to so notify Company Stockholders, then the indemnifying party shall not relieve Escrow Agent shall, on the indemnifying party from its obligations hereunder, except to business day next following (A) the extent that expiration of the indemnifying party is actually prejudiced by such failure to be given such notice. Following Objection Period or (B) the Escrow Agent's receipt of notice of a demand, claim Resolution Certificate or lawsuit, the indemnifying party shall have the option, at its cost and expense, to assume the defense of such matter and to retain counsel (not reasonably objected to by the indemnified party) to defend any such demand, claim or lawsuit, and the indemnifying party shall not be liable to the indemnified party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the defense of such claim or litigation, other than reasonable fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party elects to defend, compromise or settle such demand, claim or lawsuit, the indemnified party shall cooperate in the defense against, or compromise or settlement of, such demand, claim or lawsuit, including making available to the indemnifying party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense. The indemnified party shall have the option of participating in (but not controlling) the defense of such demand, claim or lawsuit with counsel reasonably acceptable to the indemnifying party (which shall be at the cost and expense of the indemnified party unless (1) counsel to the indemnified party reasonably determines in writing that joint representation would be inappropriate due to a conflict or potential conflict of interest or the availability of defenses not available to the indemnifying party or (2) the indemnifying party fails to assume the defense of such demand, claim or lawsuit within a reasonable period of time following written notice thereof), and counsel for each party shall, to the extent consistent with its professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement of any such demand, claim or lawsuit, the indemnifying party or the indemnified partyLitigation Certificate, as the case may be, deliver to the Parent from each Company Stockholder's portion of the Escrow Shares (pro rata in accordance with paragraph (g) of this SECTION 5) a certificate or certificates evidencing in the aggregate that number of whole Escrow Shares (rounding to the nearest whole share), as is equal to the quotient obtained by dividing (x) the Owed Amount (or, if such Resolution Certificate or Litigation Certificate specifies that a lesser amount than such Owed Amount is payable, such lesser amount) by (y) the Average Parent Stock Price, calculated as of the date of the Litigation Certificate or the Resolution Certificate, as applicable, or if no Objection Certificate is received, the Certificate of Instruction. (c) The Escrow Agent shall act give written notice to the Parent of its receipt of an Objection Certificate not later than the fifth business day following receipt thereof, together with a copy of such Objection Certificate. The Escrow Agent shall give written notice to the Escrow Representative of its receipt of a Litigation Certificate not later than the fifth business day following receipt thereof, together with a copy of such Litigation Certificate. (d) Upon the payment by the Escrow Agent of the Owed Amount referred to in a Certificate of Instruction, such Certificate of Instruction shall be deemed canceled. Upon the receipt by the Escrow Agent of a Resolution Certificate or a Litigation Certificate and the payment by the Escrow Agent of the Owed Amount referred to therein, the related Certificate of Instruction shall be deemed canceled. (e) Upon the Parent's determination that it has no claim or has released its claim with respect to an Owed Amount referred to in a Certificate of Instruction (or a specified portion thereof), the Parent will promptly deliver to the Escrow Agent a certificate substantially in the form of ANNEX V attached hereto (a "PARENT CANCELLATION CERTIFICATE") canceling such Certificate of Instruction (or such specified portion thereof, as the case may be), and such Certificate of Instruction (or portion thereof) shall thereupon be deemed canceled. The Escrow Agent shall give written notice to the Escrow Representative of its receipt of a Parent Cancellation Certificate not later than the fifth business day following receipt thereof, together with a copy of such Parent Cancellation Certificate. (f) Upon receipt of an order of a court of competent jurisdiction stating that none of the Owed Amount (or such specified portion thereof, as the case may be) referred to in a Certificate of Instruction as to which the Escrow Representative delivered an Objection Certificate within the Objection Period is payable to any Indemnified Person by the Company Stockholders, the Escrow Representative may deliver a copy of such order (accompanied by a certificate of the Escrow Representative substantially in the form of ANNEX VI attached hereto (a "STOCKHOLDER CANCELLATION CERTIFICATE")) canceling such Certificate of Instruction, and such Certificate of Instruction shall thereupon be deemed canceled. The Escrow Agent shall give written notice to the Parent of its receipt of a Stockholder Cancellation Certificate not later than the business day next following receipt thereof, together with a copy of such Stockholder Cancellation Certificate. (g) To the extent that the Escrow Agent is required to deliver Escrow Shares to Parent hereunder, it shall deliver to Parent (i) such shares obtained from the escrow accounts maintained for the Company Stockholders on a PRO RATA basis based on the respective ownership of Escrow Shares set forth on SCHEDULE I hereto, and (ii) stock transfer powers related to such shares. Parent shall cause the transfer agent for the Parent Common Stock to cooperate with the Escrow Agent in providing replacement stock certificates for shares of Parent Common Stock in substitution for those held by the Escrow Agent in order to enable the Escrow Agent to make the distributions of Escrow Shares required under this Agreement. (h) No certificate shall be delivered pursuant to this Section 5 unless it shall have been prepared in good faith by the party delivering such certificate, and all certificates delivered pursuant to this Section 5 shall enter into only such settlement as the other party shall consent to, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that an indemnifying party may enter into a cash settlement without the consent represent bona fide notice for purposes of an indemnified party so long as such settlement contains an unconditional release of such indemnified party from all liabilities arising out of such demand, claim or lawsuit. An indemnifying party shall not be liable for any settlement not made in accordance with the preceding sentencethis Agreement.