Common use of Defense of Third Party Actions Clause in Contracts

Defense of Third Party Actions. If either party hereto (the "Indemnified Party") receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Party a written notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto (the "an Indemnified Party") Party receives notice or otherwise obtains knowledge of the commencement or threat Knowledge of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry Claim or other similar matter any threatened Claim that may give rise to an indemnification claim against the other party hereto (the "an Indemnifying Party"), then the Indemnitee Indemnified Party shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement Claim in reasonable detail. The untimely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from of liability under this Agreement with respect to such claim only if, and only Claim to the extent that, such failure to notify the Indemnifying Party results in the forfeiture it has been prejudiced by the Indemnifying Party lack of rights and defenses otherwise available to the Indemnifying Party timely notice under this Article 11 with respect to such claim or the opportunity to defend or participate in the defense of said claimClaim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option to assume the defense of any such action or proceedingClaim with its own counsel, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, provided that Shareholders may not assume the defense of any Claim unless there are sufficient amounts in either case within the Indemnification Escrow Amount to fully indemnify Purchaser Indemnified Parties against the amount of such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to Claim and all other pending Claims against the Indemnifying Party, to represent or defend it in any such action or proceeding and Escrow Amount. If the Indemnifying Party shall pay elects to assume the reasonable fees defense of and disbursements of indemnification for any such counsel as incurred; providedClaim, howeverthen: (a) notwithstanding anything to the contrary contained in this Agreement, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnified Party against any attorneys' fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party's election to assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (b) the Indemnified Party shall make available to the Indemnifying Party all books, records and disbursements other documents and materials that are under the direct or indirect control of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or any of the Indemnified Party's Associates that the Indemnifying Party, whichever is not assuming Party considers such necessary or desirable for the defense of such action, shall have matter at the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep expense of the Indemnifying Party or and shall make available to the Indemnifying Party reasonable access to Indemnified Party's personnel; (c) the Indemnified Party, Party shall execute such documents and take such other actions as the case Indemnifying Party may bereasonably request for the purpose of facilitating the defense of, reasonably apprised or any settlement, compromise or adjustment relating to, such Claim (with the Indemnifying Party to reimburse Indemnified Party for third-party, out-of-pocket expenses) and the Indemnified Party shall not be required to take any such action or execute any document which imposes any equitable or unindemnified liability remedy on any Indemnified Party or would adversely affect the business or operations of the status of Company; (d) the Indemnified Party shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Claim (with the Indemnifying Party to reimburse Indemnified Party for third-party, out-of-pocket expenses); and (e) the Indemnified Party shall not admit any action, liability with respect to such Claim. If the Indemnifying Party fails or refuses to assume the defense of which they are maintainingand indemnification for such Claim, then the Indemnified Party shall proceed diligently to defend such Claim with the assistance of counsel, and the Indemnifying Party shall thereafter reimburse Indemnified Party on a current basis, in accordance with the procedures set forth in this Agreement, as requested by Indemnified Party for all costs and expenses of defense for which Indemnified Party is entitled to cooperate in good faith with each other with respect indemnification pursuant to the defense terms of any such actionthis Agreement. No third party Claim may be settled by the Indemnified Party may settle or compromise any claim or consent to without notice to, and the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of of, the Indemnifying Party, Party which shall consent must not be unreasonably withheld. The Indemnifying Party shall If such consent is not settle any claim given, or assertionwritten notice that it is being withheld and the reasons therefor has not been received, unless by the Indemnified Party consents in writing within 15 days after such notice has been received by the Indemnifying Party, the consent of the Indemnifying Party to such settlement, which consent settlement shall not be unreasonably withhelddeemed given.

Defense of Third Party Actions. If either party Party hereto (the "Indemnified Party") receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Party a written notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto (the "Indemnified PartyIndemnitee") receives notice or otherwise obtains knowledge of the commencement any Matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter threatened Matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceedingMatter in reasonable detail; provided, howeverthat for the sole purpose of determining whether a Matter or threatened Matter may give rise to an indemnification claim against the Indemnifying Party within the meaning of this sentence, that the failure limitation set forth in Section 10.4 shall not be taken into account. The timely delivery of such written notice by the Indemnitee to so notify the Indemnifying Party shall relieve be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Section 10 with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimMatter. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including the employment of Matter with its own counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counselIndemnitee. In the event, however, that If the Indemnifying Party declines or fails elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory any such Matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such Matter following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such action, Matter; (b) the Indemnitee shall have the right make available to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party all books, records and other documents and materials that are under the direct or the Indemnified Party, as the case may be, reasonably apprised indirect control of the status of Indemnitee and that the Indemnifying Party considers necessary or desirable for the defense of any action, such Matter; (c) the Indemnitee shall fully cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintainingsuch Matter and execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, and to cooperate in good faith with each other or any settlement, compromise or adjustment relating to, such Matter; (d) the Indemnitee shall not admit any liability with respect to such Matter; and (e) the Indemnifying Party shall not settle, adjust or compromise such Matter without the prior written consent or approval of the Indemnitee. If the Indemnifying Party elects not to assume the defense of any such action. No Indemnified Party may settle Matter, then the Indemnitee shall proceed diligently to defend such Matter with the assistance of counsel satisfactory to the Indemnifying Party; provided, that the Indemnitee shall not settle, adjust or compromise such Matter, or admit any claim or consent to the entry of any judgment liability with respect to which indemnification is being sought hereunder such Matter, without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto (the "Indemnified -------------------------------------- Party") receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Party a written notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto (the "Indemnified Party"a) receives Promptly after receipt of notice or otherwise obtains knowledge of the commencement or threat of any claimThird Party Action, demandany person who believes he, dispute, action, suit, examination, audit, proceeding, investigation, inquiry she or other similar matter that it may be an Indemnified Person will give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver notice to the Indemnified Party a written notice describing such complaint or the commencement potential Indemnifying Person of such action or proceeding; provided, however, that the failure action. The omission to so notify give such notice to the Indemnifying Party shall Person will not relieve the Indemnifying Party from Person of any liability hereunder unless it was prejudiced thereby, nor will it relieve it of any liability which it may have other than under this Agreement with respect to such claim only ifArticle 7. (b) Upon receipt of a notice of a Third Party Action, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party Person shall have the right, upon written notice delivered at its option and at its own expense, to the Indemnified Party within 20 days thereafter to assume participate in and be present at the defense of such action Third Party Action, but not to control the defense, negotiation or proceedingsettlement thereof, including which control shall remain with the employment Indemnified Person, unless the Indemnifying Person makes the election provided in paragraph (c) below. (c) By written notice within forty-five (45) days after receipt of a notice of a Third Party Action, an Indemnifying Person may elect to assume control of the defense, negotiation and settlement thereof, with counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurredPerson; provided, however, that the Indemnifying Person agrees (i) to promptly indemnify the Indemnified Person for its expenses to date, and (ii) to hold the Indemnified Person harmless from and against any and all Losses caused by or arising out of any settlement of the Third Party Action approved by the Indemnifying Person or any judgment in connection with that Third Party Action. The Indemnifying Persons shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Third Party or Action enter into any settlement which does not include as a term thereof the giving by the third party claimant of an unconditional release of the Indemnified PartyPerson, or consent to entry of any judgment except with the consent of the Indemnified Person. (d) Upon assumption of control of the defense of a Third Party Action under paragraph (c) above, the Indemnifying Person will not be liable to the Indemnified Person hereunder for any legal or other expenses subsequently incurred in connection with the defense of the Third Party Action, other than reasonable expenses of investigation. (e) If the Indemnifying Person does not elect to control the defense of a Third Party Action under paragraph (c), the Indemnifying Person shall promptly reimburse the Indemnified Person for expenses incurred by the Indemnified Person in connection with defense of such Third Party Action, as and when the case may be, same shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or be incurred by the Indemnified Party, as the case may be, reasonably apprised of the status Person. (f) Any person who has not assumed control of the defense of any action, Third Party Action shall have the defense of which they are maintaining, and duty to cooperate in good faith with each other with respect to the defense of any party which assumed such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withhelddefense.

Defense of Third Party Actions. If either party hereto any lawsuit or enforcement ------------------------------ action (a "Third-Party Action") is filed against a Claimant entitled to the benefit of indemnity hereunder, written notice thereof (the "Indemnified PartyThird-Party Action Notice") receives notice or otherwise obtains knowledge shall be given by the Claimant to the Indemnifying Party as promptly as practicable (and in any event within five (5) days after the service of the commencement citation or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry summons or other similar matter manner of process), provided that may give rise in no event shall such notice be effective if given after the date that is six (6) months after the Closing Date. After such notice, if the Indemnifying Party shall acknowledge in writing to an indemnification claim against the other party hereto (Claimant that the "Indemnifying Party")Party shall be obligated under the terms of its indemnity obligation hereunder in connection with such Third- Party Action, then the Indemnitee Indemnifying Party shall promptly deliver be entitled, if it so elects, (i) to take control of the defense and investigation of such Third-Party Action, (ii) to employ and engage attorneys of its choice to handle and defend the same, at the Indemnifying Party's cost, risk and expense, and (iii) to compromise or settle such Third-Party Action, which compromise or settlement shall be made only with the written consent of the Claimant (such consent not to be unreasonably withheld, conditioned or delayed) unless such compromise or settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Claimant, in which case no such consent shall be required. If the Indemnifying Party fails to assume the defense of such Third-Party Action within fifteen (15) days after receipt of the Third-Party Action Notice, the Claimant will (upon delivering notice to such effect to the Indemnified Party a written notice describing such complaint Indemnifying Party) have the right to undertake the defense, compromise or the commencement settlement of such action or proceedingThird-Party Action; provided, however, that the failure to so notify the Indemnifying such Third-Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party Action shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action compromised or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder settled without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld, conditioned or delayed. In the event the Claimant assumes the defense of the Third-Party Action, the Claimant will keep the Indemnifying Party timely informed of the progress of any such defense, compromise or settlement.

Defense of Third Party Actions. If either party hereto a Buyer Indemnitee, on the one hand, or a Seller Indemnitee, on the other hand (the "Indemnified PartyIndemnitee") ), receives notice or otherwise obtains knowledge of the commencement any matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar threatened matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement matter in reasonable detail. The timely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnitee to so notify the Indemnifying Party shall relieve be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Article 12 with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimmatter. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceedingmatter with its own counsel, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that but only if the Indemnifying Party declines or fails simultaneously agrees to indemnify the Indemnitee for such matter. If the Indemnifying Party elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory and indemnification for any such matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees or other expenses incurred on behalf of the Indemnitee in connection with such matter following the Indemnifying Party's election to assume the defense of such matter; (b) the Indemnitee shall make available to the Indemnifying Party all books, records and disbursements other documents and materials that are under the direct or indirect control of more than one counsel the Indemnitee or any of the Indemnitee's agents and that the Indemnifying Party considers necessary or desirable for the defense of such matter; (c) the Indemnitee shall use its best efforts to take, or cause to be taken, at its own cost and expense, all Indemnified Parties actions and to do, or cause to be done, all things necessary or, in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or reasonable opinion of the Indemnifying Party, whichever is not assuming desirable to the defense of, or any settlement, compromise or adjustment relating to, such matter including (i) supplying such factual and technical information as the Indemnitee shall possess as the Indemnifying Party shall request, (ii) making available to the Indemnifying Party persons employed by the Indemnitee, (iii) executing and delivering settlements, waivers, powers of attorney and other agreements or documents, (iv) promptly and timely filing any claims, counterclaims and other actions and (v) maintain in existence and make available to the Indemnifying Party books, records and files of the Indemnitee relating to any potential claim; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such action, matter; and (e) the Indemnitee shall have the right not admit any liability with respect to participate in such litigation and to retain its own counsel at such party's own expensematter. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep If the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of elects not to assume the defense of and indemnification for such matter, then the Indemnitee shall proceed diligently to defend such matter with the assistance of counsel reasonably satisfactory to the Indemnifying Party, provided, however, that the Indemnitee shall not settle, -------- ------- adjust or compromise such matter, or admit any action, the defense of which they are maintaining, and to cooperate in good faith with each other liability with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder matter, without the prior written consent of the Indemnifying Party, which such consent not to be unreasonably withheld or delayed. This Section 12.4 shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing apply to such settlement, which consent shall not be unreasonably withheldmatters subject to Section 8.10.4 (Tax Contests).

Defense of Third Party Actions. If either (a) Promptly after receipt of notice of any written assertion of a claim, or the commencement of any action, suit, or proceeding, by a third party hereto against a party to this Agreement ("Third Party Action"), the party in receipt of such notice who believes that it is entitled to indemnification under this Article XI (the "Indemnified Party") receives shall give notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to ) of such action. The failure of the Indemnified Party a written to give such notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall will not relieve the Indemnifying Party from of any liability hereunder unless it was prejudiced thereby, nor will it relieve it of any Liability which it may have other than under this Agreement with respect to such claim only ifArticle XI. (b) Upon receipt of a notice of a Third Party Action, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered at its option and at its own expense, to the Indemnified Party within 20 days thereafter to assume participate in and be present at the defense of such action Third Party Action, but not to control the defense, negotiation or proceedingsettlement thereof, including the employment of counsel reasonably satisfactory to which control shall remain with the Indemnified Party and the payment of the fees and disbursements of such counsel. In the eventParty, however, that unless the Indemnifying Party declines or fails makes the election provided in paragraph (c) below. (c) By written notice within 20 days after receipt of a notice of a Third Party Action, an Indemnifying Party may elect to assume the defense control of the action or proceeding or to employ defense, negotiation and settlement thereof, with counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required agrees (a) to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, promptly indemnify the Indemnified Party or the Indemnifying Partyfor its expenses to date, whichever is not assuming the defense of such action, shall have the right and (b) to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or hold the Indemnified Party, as Party harmless from and against any and all Losses caused by or arising out of any settlement of the case may be, shall at all times use all commercially reasonable efforts to keep Third Party Action approved by the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment in connection with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheldthat Third Party Action. The Indemnifying Party shall not settle in the defense of the Third Party Action enter into any claim settlement which does not include as a term thereof the giving by the third party claimant of an unconditional release of the Indemnified Party, or assertionconsent to entry of any judgment except with the consent of the Indemnified Party. (d) Upon assumption of control of the defense of a Third Party Action under paragraph (iii) above, unless the Indemnifying Party will not be liable to the Indemnified Party consents hereunder for any legal or other expenses subsequently incurred in writing connection with the defense of the Third Party Action, other than reasonable expenses of investigation. (e) If the Indemnifying Party does not elect to control the defense of a Third Party Action under paragraph (c), the Indemnifying Party shall promptly reimburse the Indemnified Party for expenses incurred by the Indemnified Party in connection with defense of such settlementThird Party Action, as and when the same shall be incurred by the Indemnified Party. (f) Any party who has not assumed control of the defense of any Third Party Action shall have the duty to cooperate with the party which consent shall not be unreasonably withheldassumed such defense.

Defense of Third Party Actions. (i) If either party hereto (the "Indemnified PartyIndemnitee") receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suithearing, examinationarbitration, auditlitigation, proceeding, investigation, inquiry suit or other similar matter claim ("Proceeding") or any threatened Proceeding that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or Proceeding in reasonable detail. The failure to give such written notice shall not relieve the Indemnifying Party of any liability under this Section 6 with respect to such matter except to the extent the Indemnifying Party shall have been materially prejudiced by such failure. (ii) If any Proceeding referred to in Section 6(e)(i) is brought against an Indemnitee and it gives notice to the Indemnifying Party of the commencement of such action or proceeding; providedProceeding, however, that the failure to so notify the Indemnifying Party shall relieve will be entitled to participate in such Proceeding and, to the extent that it wishes (unless the Indemnifying Party from liability under this Agreement with respect is also a party to such claim only ifProceeding and the Indemnitee reasonably determines in good faith that joint representation would be inappropriate), and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of Proceeding with counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the eventIndemnitee and, however, that after notice from the Indemnifying Party declines or fails to the Indemnitee of its election to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Partysuch Proceeding, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Partywill not, as long as it diligently conducts such defense, be liable to the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party Indemnitee under this Section 6(e) for any fees of other counsel or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other expenses with respect to the defense of any such actionProceeding, in each case subsequently incurred by the Indemnitee in connection with the defense of such Proceeding. No Indemnified If the Indemnifying Party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may settle or compromise any claim or be effected by the Indemnifying Party without the Indemnitee's consent to and the entry of any judgment Indemnitee will have no liability with respect to which indemnification any compromise or settlement of such claims effected without its consent. If notice is being sought hereunder without the prior written consent given to an Indemnifying Party of the Indemnifying Party, which shall not be unreasonably withheld. The commencement of any Proceeding and the Indemnifying Party does not, within ten (10) days after the Indemnitee's notice is given, give notice to the Indemnitee of its election to assume the defense of such proceeding, the Indemnitee shall not have the right to control the defense of, and to compromise or settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheldProceeding.

Defense of Third Party Actions. If either (a) Promptly after receipt of notice of any written assertion of a claim, or the commencement of any action, suit, or proceeding, by a third party hereto against a party to this Agreement ("Third Party Action"), the party in receipt of such notice who believes that it is entitled to indemnification under this Article XII (the "Indemnified Party") receives shall give notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to ) of such action. The failure of the Indemnified Party a written to give such notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall will not relieve the Indemnifying Party from of any liability hereunder unless it was prejudiced thereby, nor will it relieve it of any Liability which it may have other than under this Agreement with respect to such claim only ifArticle XI. (b) Upon receipt of a notice of a Third Party Action, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered at its option and at its own expense, to the Indemnified Party within 20 days thereafter to assume participate in and be present at the defense of such action Third Party Action, but not to control the defense, negotiation or proceedingsettlement thereof, including the employment of counsel reasonably satisfactory to which control shall remain with the Indemnified Party and the payment of the fees and disbursements of such counsel. In the eventParty, however, that unless the Indemnifying Party declines or fails makes the election provided in paragraph (c) below. (c) By written notice within 20 days after receipt of a notice of a Third Party Action, an Indemnifying Party may elect to assume the defense control of the action or proceeding or to employ defense, negotiation and settlement thereof, with counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required agrees (a) to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, promptly indemnify the Indemnified Party or the Indemnifying Partyfor its expenses to date, whichever is not assuming the defense of such action, shall have the right and (b) to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or hold the Indemnified Party, as Party harmless from and against any and all Losses caused by or arising out of any settlement of the case may be, shall at all times use all commercially reasonable efforts to keep Third Party Action approved by the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment in connection with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheldthat Third Party Action. The Indemnifying Party shall not settle in the defense of the Third Party Action enter into any claim settlement which does not include as a term thereof the giving by the third party claimant of an unconditional release of the Indemnified Party, or assertionconsent to entry of any judgment except with the consent of the Indemnified Party. (d) Upon assumption of control of the defense of a Third Party Action under paragraph (iii) above, unless the Indemnifying Party will not be liable to the Indemnified Party consents hereunder for any legal or other expenses subsequently incurred in writing connection with the defense of the Third Party Action, other than reasonable expenses of investigation. (e) If the Indemnifying Party does not elect to control the defense of a Third Party Action under paragraph (c), the Indemnifying Party shall promptly reimburse the Indemnified Party for expenses incurred by the Indemnified Party in connection with defense of such settlementThird Party Action, as and when the same shall be incurred by the Indemnified Party. (f) Any party who has not assumed control of the defense of any Third Party Action shall have the duty to cooperate with the party which consent shall not be unreasonably withheldassumed such defense.

Defense of Third Party Actions. If either party hereto (the "Indemnified Party"“Indemnitee”) receives notice or otherwise obtains knowledge of the commencement any Matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter threatened Matter that may give rise to an indemnification claim against the other party hereto (the "“Indemnifying Party"”), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceedingMatter in reasonable detail; provided, however, that for the failure sole purpose of determining whether a Matter or threatened Matter may give rise to so notify an indemnification claim against Sellers within the meaning of this sentence, the limitations set forth in Section 7.1 shall not be taken into account. The timely delivery of such written notice by the Indemnitee to the Indemnifying Party shall relieve be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Section 7 with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimMatter. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such Matter with its own counsel. In the event, however, that If the Indemnifying Party declines or fails elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory any such Matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such Matter following the Indemnifying Party, whichever is not assuming ’s election to assume the defense of such actionMatter; (b) the Indemnitee shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s Representatives and that the Indemnifying Party considers necessary or desirable for the defense of such Matter; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Matter; (e) the Indemnitee shall not admit any Liability with respect to such Matter; and (f) the Indemnifying Party shall have the exclusive right to participate in settle, adjust or compromise such litigation and to retain its own counsel at Matter, on such party's own expenseterms as it may deem appropriate, without the consent or approval of the Indemnitee or any other Person. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep If the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of elects not to assume the defense of any actionsuch Matter, then the Indemnitee shall proceed diligently to defend such Matter with the assistance of counsel satisfactory to the Indemnifying Party; provided, however, that if the Indemnifying Party has agreed to accept Liability for the Matter, the defense of which they are maintainingIndemnitee shall not settle, and to cooperate in good faith with each other adjust or compromise such Matter, or admit any Liability with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder Matter, without the prior written consent of the Indemnifying Party, Party (which consents shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld).

Defense of Third Party Actions. (a) If either party hereto (the "Indemnified Party") receives notice Party or otherwise obtains knowledge any of the commencement or threat its Affiliates becomes aware of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Third Party a written notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement Action with respect to a Licensed Product in the Company Territory, such Party shall promptly notify the other Party of all details regarding such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise or action that is reasonably available to such Party or such Affiliate. (b) Company shall have the Indemnifying first right, at its sole cost and expense, but not the obligation, to defend against any Third Party Action with respect to a Licensed Product in the Field in the Company Territory and, subject to Section 5.4(f), to settle or otherwise compromise such claim Third Party Action. If Company declines or the opportunity fails to assert its intention to defend or participate such Third Party Action with respect to Biosion Licensed Technology within [***] days after sending (in the defense of said claim. The Indemnifying Party event that Company is the notifying Party) or receiving (in the event that Biosion is the notifying Party) notice under Section 5.4(a), then, Biosion shall have the right, upon written notice delivered but not the obligation, to assume control of the defense against such Third Party Action solely with respect to Biosion Licensed Technology. The Party defending such Third Party Action shall have the sole and exclusive right to select counsel for such Third Party Action. (c) The Party defending a Third Party Action (the “Defending Party”) pursuant to Section 5.4(b) shall consult with the non-Defending Party on all material aspects of the defense. The non-Defending Party, at its own cost and expense, shall have a reasonable opportunity for meaningful participation in decision-making and formulation of defense strategy and the Defending Party shall, acting reasonably and in good faith, consider the non-Defending Party’s comments. The Parties shall reasonably cooperate with each other in all such Third Party Actions. (d) The non-Defending Party will be entitled to be represented by independent counsel of its own choice at its own expense. (e) Subject to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment respective indemnity obligations of the fees and disbursements of such counsel. In Parties set forth in Article 8, the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Defending Party shall pay all costs incurred by the reasonable fees and disbursements of Parties associated with such counsel as incurred; provided, however, that Third Party Action other than the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised expenses of the status of non-Defending Party if the defense of any action, the defense of which they are maintaining, and non-Defending Party elects to cooperate in good faith with each other with respect join such Third Party Action pursuant to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheldSection 5.4(d).

Defense of Third Party Actions. If either party hereto (the "Indemnified Party"a) receives Promptly after receipt of notice of any written assertion of a claim, or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, or proceeding, investigationby a third party against a party to this Agreement (“Third Party Action”), inquiry or other similar matter the party in receipt of such notice who believes that may it is entitled to indemnification under this Article X (the “Indemnified Party”) shall give rise notice to an indemnification claim against the other party hereto (the "“Indemnifying Party"), then the Indemnitee shall promptly deliver to ”) of such action. The failure of the Indemnified Party a written to give such notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall will not relieve the Indemnifying Party from of any liability hereunder unless it was prejudiced thereby, nor will it relieve it of any Liability which it may have other than under this Agreement with respect to such claim only ifArticle X. (b) Upon receipt of a notice of a Third Party Action, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered at its option and at its own expense, to the Indemnified Party within 20 days thereafter to assume participate in and be present at the defense of such action Third Party Action, but not to control the defense, negotiation or proceedingsettlement thereof, including the employment of counsel reasonably satisfactory to which control shall remain with the Indemnified Party and the payment of the fees and disbursements of such counsel. In the eventParty, however, that unless the Indemnifying Party declines or fails makes the election provided in paragraph (c) below. (c) By written notice within 20 days after receipt of a notice of a Third Party Action, an Indemnifying Party may elect to assume the defense control of the action or proceeding or to employ defense, negotiation and settlement thereof, with counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required agrees (a) to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, promptly indemnify the Indemnified Party or the Indemnifying Partyfor its expenses to date, whichever is not assuming the defense of such action, shall have the right and (b) to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or hold the Indemnified Party, as Party harmless from and against any and all losses caused by or arising out of any settlement of the case may be, shall at all times use all commercially reasonable efforts to keep Third Party Action approved by the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment in connection with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheldthat Third Party Action. The Indemnifying Party shall not settle in the defense of the Third Party Action enter into any claim settlement that does not include as a term thereof the giving by the third party claimant of an unconditional release of the Indemnified Party, or assertionconsent to entry of any judgment except with the consent of the Indemnified Party. (d) Upon assumption of control of the defense of a Third Party Action under paragraph (iii) above, unless the Indemnifying Party will not be liable to the Indemnified Party consents hereunder for any legal or other expenses subsequently incurred in writing connection with the defense of the Third Party Action, other than reasonable expenses of investigation. (e) If the Indemnifying Party does not elect to control the defense of a Third Party Action under paragraph (c), the Indemnifying Party shall promptly reimburse the Indemnified Party for expenses incurred by the Indemnified Party in connection with defense of such settlementThird Party Action, which consent as and when the same shall be incurred by the Indemnified Party. (f) Any party who has not be unreasonably withheldassumed control of the defense of any Third Party Action shall have the duty to cooperate with the party that assumed such defense.

Defense of Third Party Actions. If either party hereto a Buyer Indemnitee, on the one hand, or a Seller Indemnitee, on the other hand (the "Indemnified PartyIndemnitee") ), receives notice or otherwise obtains knowledge of the commencement any matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar threatened matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement matter in reasonable detail. The timely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnitee to so notify the Indemnifying Party shall relieve not be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Article 12 with respect to such claim only ifmatter, except, and only to the extent thatof, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available any actual prejudice to the Indemnifying Party with respect resulting from such failure to such claim or the opportunity to defend or participate in the defense of said claimmake timely delivery. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option to assume the defense of any such action or proceedingmatter with its own counsel, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that but only if the Indemnifying Party declines or fails simultaneously agrees to indemnify the Indemnitee for such matter. If the Indemnifying Party elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory and indemnification for any such matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such matter following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such action, matter; (b) the Indemnitee shall have the right make available to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party all books, records and other documents and materials that are under the direct or the Indemnified Party, as the case may be, reasonably apprised indirect control of the status Indemnitee or any of the Indemnitee's agents and that the Indemnifying Party considers necessary or desirable for the defense of such matter; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any actionsettlement, compromise or adjustment relating to, such matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintaining, and to cooperate in good faith with each other such matter; and (e) the Indemnitee shall not admit any liability with respect to such matter. If the Indemnifying Party elects not to assume the defense of any and indemnification for such action. No Indemnified Party may settle matter, then the Indemnitee shall proceed with reasonable diligence to defend such matter with the assistance of Cooley Godward LLP (in the case of the Seller) or Proskauer Rose LLP (in case of the Buyer) or other counsel reasonably satisfactory to the Indemnifying Party; provided, however, that the Indemnitee shall not settle, adjust or compromise such matter, or admit any claim or consent to the entry of any judgment liability with respect to which indemnification is being sought hereunder such matter, without the prior written consent of the Indemnifying Party, which shall such consent not to be unreasonably withheld. The Indemnifying Party shall not settle any claim withheld or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withhelddelayed.

Defense of Third Party Actions. If either party any Party hereto (the "Indemnified PartyIndemnitee") receives notice or otherwise obtains knowledge of the commencement any matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar threatened matter that may give rise to an indemnification claim against the other party another Party hereto (the "Indemnifying PartyIndemnitor"), then the Indemnitee shall promptly deliver to the Indemnified Party Indemnitor a written notice describing such complaint or matter in reasonable detail. The failure by an Indemnitee to provide such written notice by the commencement Indemnitee to the Indemnitor shall not affect any liability on the part of the Indemnitor under this Article IX, except to the extent the Indemnitor is prejudiced by such action or proceedingfailure. In the event of a matter involving a third party claim against an Indemnitee, the Indemnitor shall have the right, at its option and expense, to assume the defense of any such claim with its own counsel reasonably acceptable to the Indemnitor; provided, however, that the failure Indemnitee shall not be required to so notify permit such an assumption of the Indemnifying Party shall relieve defense of such a claim which, if not first paid, discharged or otherwise complied with, would result in a material disruption or interruption of the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to business of the extent that, such failure Indemnitee or any material part thereof. Failure by the Indemnitor to notify the Indemnifying Party results in the forfeiture Indemnitee of its election to defend any such third party claim within twenty (20) days after it has received written notice thereof shall be deemed a waiver by the Indemnifying Party Indemnitor of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter its right to assume the defense of such action or proceeding, including claim. If the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails Indemnitor timely elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory any such third party claim, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect such claim following the Indemnitor's election to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming assume the defense of such actionclaim; (b) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee's Affiliates and that the Indemnitor considers necessary or desirable for the defense of such claim; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnitor may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such claim; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnitor in the defense of such Matter; (e) the Indemnitor shall have the exclusive right to participate in settle, adjust or compromise such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party third party claim without the consent or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised approval of the status Indemnitee or any other Person, but only if the terms of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, adjustment, or compromise provide only for the payment of money for which consent shall not be unreasonably withheldthe Indemnitor is liable under this Agreement.

Defense of Third Party Actions. If either party hereto (the "Indemnified Party") Party receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise Claim instituted by a Third Party (a “Third Party Claim”) for which the Indemnified Party desires to an seek indemnification claim against from the other party hereto (the "Indemnifying Party")Party hereunder, then the Indemnitee Indemnified Party shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceeding; providedClaim, however, that the but any failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim Claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim Claim, or the opportunity to defend or participate in the defense of said claimsuch Claim, or otherwise actually prejudices the Indemnifying Party with respect to such Claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter [**] after receipt of any such notice of a Claim, to assume the defense and control of such action or proceedingClaim, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the eventevent that the Indemnifying Party assumes, howeverand continues to pursue in good faith, the defense and control of such Claim using counsel reasonably satisfactory to the Indemnified Party, then the Indemnified Party shall be entitled to participate in (but not control) the defense of such Claim, with its counsel and at its own expense. In the event that the Indemnifying Party declines or fails to assume and control, or ceases to pursue in good faith, the defense of the action or proceeding Claim or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such the Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it the Indemnified Party in any such action or proceeding Claim, and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred, subject to the monetary limitations set forth in this Article 5; provided, however, except that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one (1) counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or Claim and the Indemnifying Party, whichever is not assuming the defense of such action, Party nevertheless shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any actionThird Party Claim and, the defense at its own expense, to employ counsel of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any its own choosing for such actionpurpose. No The Indemnified Party may not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall not settle any claim or assertionassertion in any manner that would impose any obligation on the Indemnified Party (other than solely financial obligations against which Indemnifying Party fully indemnifies the Indemnified Party in accordance with this Article 5), unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld, conditioned or delayed.

Defense of Third Party Actions. If either party hereto (the "Indemnified Party") receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Party a written notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto a Buyer Indemnitee, on the one hand, or a Seller Indemnitee, on the other hand (the "Indemnified PartyIndemnitee") ), receives notice or otherwise obtains knowledge of the commencement any matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar threatened matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement matter in reasonable detail. The timely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnitee to so notify the Indemnifying Party shall relieve be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Article 11 with respect to such claim only if, and matter only to the extent that, such of any prejudice resulting from the failure to notify the Indemnifying Party results provide such notice in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claima timely manner. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option to assume the defense of any such action or proceedingmatter with its own counsel (subject to the condition that, including the employment of for counsel other than Coolxx Xxxward LLP, such counsel shall be reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the eventBuyer), however, that but only if the Indemnifying Party declines or fails simultaneously agrees in writing to indemnify the Indemnitee for such matter. If the Indemnifying Party elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory and indemnification for any such matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such matter following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such actionmatter; (b) the Indemnitee shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee's agents and that the Indemnifying Party considers necessary or desirable for the defense of such matter; (c) the Indemnitee shall have execute such documents and take such other actions as the right Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such matter; and (e) the Indemnitee shall not admit any liability with respect to such matter. Notwithstanding any election made by an Indemnifying Party to assume the defense of any matter as described above, the Indemnitee may (by notifying the Indemnifying Party) elect to participate in the defense of such litigation matter (at the Indemnitee's sole expense and with counsel selected by the Indemnitee and reasonably satisfactory to retain its own counsel at such party's own expense. The the Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep ) if the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised any Affiliate of the status of Indemnifying Party is also a party to such matter and counsel to the defense of any action, the defense of which they are maintaining, and to cooperate Indemnitee determines in good faith with each other with respect that joint representation would give rise to the defense a conflict of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheldinterest.

Defense of Third Party Actions. If either party hereto (the "Indemnified Party"“Indemnitee”) receives notice or otherwise obtains knowledge of the commencement any Matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter threatened Matter that may give rise to an indemnification claim against the other party hereto (the "“Indemnifying Party"”), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceedingMatter in reasonable detail; provided, however, that for the failure sole purpose of determining whether a Matter or threatened Matter may give rise to so notify an indemnification claim against Seller within the meaning of this sentence, the limitation set forth in Section 11.4 shall not be taken into account. The timely delivery of such written notice by the Indemnitee to the Indemnifying Party shall relieve be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Section 11 with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimMatter. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such Matter with its own counsel. In the event, however, that If the Indemnifying Party declines or fails elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory any such Matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such Matter following the Indemnifying Party, whichever is not assuming ’s election to assume the defense of such actionMatter; (b) the Indemnitee shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s Associates and that the Indemnifying Parry considers necessary or desirable for the defense of such Matter; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Matter; (e) the Indemnitee shall not admit any liability with respect to such Matter; (f) the Indemnifying Party shall have the exclusive right to participate in settle, adjust or compromise such litigation and to retain its own counsel at Matter, on such party's own expenseterms as it may deem appropriate, without the consent or approval of the Indemnitee or any other Person. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep If the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of elects not to assume the defense of any actionsuch Matter, then the Indemnitee shall proceed diligently to defend such Matter with the assistance of counsel satisfactory to, and at the expense of, the defense of which they are maintainingIndemnifying Party; provided, and to cooperate in good faith with each other however, that the Indemnitee shall not settle, adjust or compromise such Matter, or admit any liability with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder Matter, without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either (a) The indemnified party hereto seeking indemnification under this Agreement (the "Indemnified Party") receives notice or otherwise obtains knowledge shall promptly notify the indemnifying party (the ----------------- "Indemnifying Party") of the commencement or threat assertion of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Party a written notice describing such complaint or the commencement of such action any ------------------- Action or proceeding; providedProceeding by any Third Party, however, that the failure to so notify in respect of which indemnity may be sought hereunder and shall give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such notice shall not relieve the Indemnifying Party from of any liability under this Agreement with respect to such claim only if, and only hereunder (except to the extent that, such failure to notify that the Indemnifying Party results in the forfeiture has suffered actual prejudice by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimfailure). The Indemnifying Party shall have the right, upon but not the obligation, exercisable by written notice delivered to (which notice shall contain the unconditional undertaking by the Indemnifying Party to bear all Liabilities, obligations and Losses with respect to such Third Party Claim, as defined below) the Indemnified Party within 20 thirty (30) days thereafter of receipt of notice from the Indemnified Party of the commencement of or assertion of any claim, Action or Proceeding by a Third Party in respect of which indemnity may be sought hereunder (a "Third-Party Claim") to ----------------- assume the defense at its sole expense such Third-Party Claim that (i) involves (and continues to involve) solely money damages or (ii) involves (and continues to involve) claims for both money damages and equitable relief against the Indemnified Party that cannot be severed, where the claims for money damages are the primary claims asserted by the Third Party and the claims for equitable relief are incidental to the claims for money damages, and where the Indemnified Party reasonably determines (and continues to reasonably determine) that defense of the claim by the Indemnifying Party will not have a material adverse effect on the Indemnified Party. If the Indemnifying Party does not assume the defense of any such action or proceedingThird-Party Claim, including the employment of counsel reasonably satisfactory Indemnifying Party shall, in addition to any other amounts due under this Article 11, indemnify the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming ---------- actual expenses of the defense of such actionThird-Party Claim (including court costs, shall have reasonable fees of attorneys, accountants and other experts and other reasonable expenses of litigation), including with respect to any Third Party Claim which, if the right facts alleged therein were proven to participate in such litigation and to retain its own counsel at such party's own expense. be true, would otherwise constitute an indemnifiable claim. (b) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control), at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Partyits own expense, as the case may be, reasonably apprised of the status of the defense of any actionThird-Party Claim that the other is defending pursuant to this Agreement. (c) The Indemnifying Party, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to if it has assumed the defense of any such action. No Third-Party Claim pursuant to this Agreement, shall not, without the Indemnified Party's prior written consent (not to be unreasonably withheld), enter into any compromise or settlement, it being agreed that no such compromise or settlement may be entered into that (i) results in any liability to the Indemnified Party, (ii) commits the Indemnified Party may settle to take, or compromise to forbear to take, any claim action or consent to (iii) does not provide for a complete release by such Third Party of the entry of any judgment with respect to which indemnification is being sought hereunder Indemnified Party. The Indemnifying Party shall not, without the Indemnified Party's prior written consent, enter into any compromise or settlement where the amount of such compromise or settlement would cause the applicable cap on the Indemnifying Party's liability, as provided herein, to be exceeded. The Indemnified Party shall have the sole and exclusive right to settle any Third- Party Claim, with the consent of the Indemnifying Party, which shall not be unreasonably withheld. The withheld or delayed, on such terms and conditions as it deems reasonably appropriate, to the extent such Third-Party Claim involves equitable or other nonmonetary relief against the Indemnified Party, and shall have the right to settle, at the Indemnifying Party's sole expense, any Third-Party Claim involving money damages for which the Indemnifying Party shall has not settle any claim or assertion, unless assumed the Indemnified Party consents in writing defense pursuant to such settlementthis Section 11.5 with the written consent of the ------------ Indemnifying Party, which consent shall not be unreasonably withheldwithheld or delayed. Notwithstanding the foregoing, the Indemnified Party shall have the right to employ separate counsel at the Indemnifying Party's expense and to control its own defense of any such asserted liability if (i) there are or may be legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party or (ii) in the reasonable opinion of counsel to such Indemnified Party, conflict or potential conflict exists between the Indemnifying Party and such Indemnified Party that would make such separate representation advisable.

Defense of Third Party Actions. (a) If either party hereto (the "“Indemnified Party"”) receives notice or otherwise obtains knowledge of the commencement any Matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter threatened Matter that may give rise to an indemnification claim against the other party hereto (the "“Indemnifying Party"”), then the Indemnitee Indemnified Party shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or Matter in reasonable detail, but failure to give timely notice to the Indemnifying Party of the commencement of such claim will not relieve the Indemnifying Party of any liability it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced by the Indemnified Party’s failure to give such notice, as described in Section 10.6(c) below. (b) If any Proceeding referred to in Section 10.6(a) is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such Proceeding, the Indemnifying Party will be entitled to participate in such Proceeding and, and to the extent that it wishes (unless (i) the Indemnifying Party is also a party to such Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate, or proceeding(ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such Proceeding with counsel satisfactory to the Indemnified Party at the Indemnifying Party’s expense by giving notice of its intention to do so to the Indemnified Party within 20 days (the “Response Period”) of receipt of the Indemnified Party of such third-party action (and during such 20-day period the Indemnified Party shall provide all reasonable cooperation to the Indemnifying Party). For the avoidance of doubt, the Principal Shareholders shall be entitled to assume the defense of any potential third-party claim that might potentially be brought in connection with the validity of the Company’s Subchapter S election (provided that the requirements of the preceding sentence and Section 8.5(g) are otherwise satisfied) at the Principal Shareholders’ cost and expense; provided, further, that Purchaser shall be entitled to fully participate in any such defense at its cost and expense. If the Indemnifying Party assumes the defense of a Proceeding, (i) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (ii) the Indemnified Party will have no liability with respect to any compromise or settlement of such claims effected without its consent, and any such settlement, compromise or consent must include, as an unconditional term, the giving by the Claimant or the plaintiff to such Indemnified Party (and its subsidiaries and affiliates) a release from all liability in respect of such indemnifiable Claim. (c) Notwithstanding the foregoing: (i) such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be payable by such Indemnified Party; and (ii) the rights of such Indemnified Party to be indemnified in respect of indemnifiable claims resulting from the assertion of liability by third parties shall not be adversely affected by its failure to give notice pursuant to the foregoing provisions unless, and, if so, only to the extent that, the other party is materially prejudiced by such failure. With respect to any assertion of liability by a third-party that results in an indemnifiable claim, the parties shall make available to each other all relevant information in their possession that is material to any such assertion. If the Indemnifying Party assumes the defense of an indemnifiable claim, the Indemnifying Party shall reasonably defend such claim until it is fully and finally settled or otherwise resolved. (d) In the event that the Indemnifying Party fails to assume the defense of an Indemnified Party against any such indemnifiable claim within the Response Period, or the Indemnifying Party fails to reasonably defend such indemnifiable claim after assuming the defense thereof, the Indemnified Party shall have the right to defend, compromise or settle such indemnifiable claim on behalf, for the account, and at the risk of the Indemnifying Party, subject to provisions of this Section 10; provided, however, that the failure to so notify the Indemnifying Indemnified Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only ifnot, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to without the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the ’s prior written consent of the Indemnifying Party, (which shall not be unreasonably withheld. The Indemnifying Party shall not ), settle any or compromise such indemnifiable claim or assertion, consent to entry of any judgment in respect of such indemnifiable claim unless the Indemnified Party consents in writing to such settlement, which compromise or consent shall includes, as an unconditional term, the giving by the Claimant or the plaintiff to such Indemnified Party (and its subsidiaries and affiliates) a release from all liability in respect of such indemnifiable claim and does not be unreasonably withheldinvolve any finding or admission of liability by the Indemnified Party.

Defense of Third Party Actions. If either party hereto (the "an Indemnified Party") Party receives notice or otherwise obtains knowledge of the commencement or threat Knowledge of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry Claim or other similar matter any threatened Claim that may give rise to an indemnification claim against the other party hereto (the "an Indemnifying Party"), then the Indemnitee Indemnified Party shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement Claim in reasonable detail. The untimely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from of liability under this Agreement with respect to such claim only if, and only Claim to the extent that, such failure to notify the Indemnifying Party results in the forfeiture it has been prejudiced by the Indemnifying Party lack of rights and defenses otherwise available to the Indemnifying Party timely notice under this Article 11 with respect to such claim or the opportunity to defend or participate in the defense of said claimClaim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option to assume the defense of any such action or proceedingClaim with its own counsel, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, provided that Shareholder may not assume the defense of any Claim unless there are sufficient amounts in either case within the Indemnification Escrow Amount to fully indemnify Purchaser Indemnified Parties against the amount of such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to Claim and all other pending Claims against the Indemnifying Party, to represent or defend it in any such action or proceeding and Escrow Amount. If the Indemnifying Party shall pay elects to assume the reasonable fees defense of and disbursements of indemnification for any such counsel as incurred; providedClaim, howeverthen: (a) notwithstanding anything to the contrary contained in this Agreement, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnified Party against any attorneys' fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party's election to assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (b) the Indemnified Party shall make available to the Indemnifying Party all books, records and disbursements other documents and materials that are under the direct or indirect control of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or any of the Indemnified Party's Associates that the Indemnifying Party, whichever is not assuming Party considers such necessary or desirable for the defense of such action, shall have matter at the right to participate in such litigation and to retain its own counsel at such party's own expense. The expense of the 45 Indemnifying Party or the Indemnified Party, as the case may be, and shall at all times use all commercially reasonable efforts make available to keep the Indemnifying Party or reasonable access to Indemnified Party's personnel; (c) the Indemnified Party, Party shall execute such documents and take such other actions as the case Indemnifying Party may bereasonably request for the purpose of facilitating the defense of, reasonably apprised or any settlement, compromise or adjustment relating to, such Claim (with the Indemnifying Party to reimburse Indemnified Party for third-party, out-of-pocket expenses) and the Indemnified Party shall not be required to take any such action or execute any document which imposes any equitable or unindemnified liability remedy on any Indemnified Party or would adversely affect the business or operations of the status of Company; (d) the Indemnified Party shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Claim (with the Indemnifying Party to reimburse Indemnified Party for third-party, out-of-pocket expenses); and (e) the Indemnified Party shall not admit any action, liability with respect to such Claim. If the Indemnifying Party fails or refuses to assume the defense of which they are maintainingand indemnification for such Claim, then the Indemnified Party shall proceed diligently to defend such Claim with the assistance of counsel, and the Indemnifying Party shall thereafter reimburse Indemnified Party on a current basis, in accordance with the procedures set forth in this Agreement, as requested by Indemnified Party for all costs and expenses of defense for which Indemnified Party is entitled to cooperate in good faith with each other with respect indemnification pursuant to the defense terms of any such actionthis Agreement. No third party Claim may be settled by the Indemnified Party may settle or compromise any claim or consent to without notice to, and the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of of, the Indemnifying Party, Party which shall consent must not be unreasonably withheld. The Indemnifying Party shall If such consent is not settle any claim given, or assertionwritten notice that it is being withheld and the reasons therefor has not been received, unless by the Indemnified Party consents in writing within 15 days after such notice has been received by the Indemnifying Party, the consent of the Indemnifying Party to such settlement, which consent settlement shall not be unreasonably withhelddeemed given.

Defense of Third Party Actions. If either party Party hereto (the "“Indemnified Party"”) receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "“Indemnifying Party"”), then the Indemnitee shall promptly deliver to the Indemnified Party a written notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto (the "Indemnified PartyIndemnitee") receives notice or otherwise obtains knowledge of the commencement any Matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter threatened Matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceedingMatter in reasonable detail; provided, however, that for the sole purpose of determining whether a Matter or threatened Matter may give rise to an indemnification claim within the meaning of this sentence, the limitation set forth in Section 10.3 shall not be taken into account. Delay or failure to so notify the Indemnifying Party Indemnitee shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only of its obligations to the extent thatextent, if at all, that it is prejudiced by reason of such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim delay or the opportunity to defend or participate in the defense of said claimfailure. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including the employment of Matter with counsel which is reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counselIndemnitee. In the event, however, that If the Indemnifying Party declines or fails elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory any such Matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such Matter following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such action, shall have Matter unless the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep interests of the Indemnifying Party and the Indemnitee conflict in such a manner and to the extent to require, consistent with applicable standards of professional conduct, the retention of separate counsel for the Indemnitee in which case, the Indemnifying Party shall pay for one separate counsel chosen by the Indemnitee; (b) the Indemnitee shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or the Indemnified Party, as the case may be, reasonably apprised indirect control of the status of Indemnitee and that are reasonably necessary or desirable for the defense of any action, such Matter; (c) the Indemnitee shall cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.Matter; and

Defense of Third Party Actions. If either party hereto (the "Indemnified PartyIndemnitee") receives notice or otherwise obtains knowledge of the commencement any Legal Proceeding or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter threatened Legal Proceeding that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceedingLegal Proceeding in reasonable detail; provided, however, that for the failure sole purpose of determining whether a Legal Proceeding or threatened Legal Proceeding may give rise to so notify an indemnification claim against the Shareholders within the meaning of this sentence, the limitation set forth in Section 7.4 shall not be taken into account. The timely delivery of such written notice by the Indemnitee to the Indemnifying Party shall relieve not be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Section 7 with respect to such claim only ifLegal Proceeding, and only except to the extent that, such failure to notify the Indemnifying Party results in is actually prejudiced. With the forfeiture by consent of the Indemnifying Party of rights and defenses otherwise available to Indemnified Party, which will not be unreasonably withheld, the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such Legal Proceeding with its own counsel. In the event, however, that If the Indemnifying Party declines or fails to assume assumes the defense of the action or proceeding or to employ counsel reasonably satisfactory any such Legal Proceeding, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such Legal Proceeding following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such action, Legal Proceeding; (b) the Indemnitee shall have the right make available to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party all books, records and other documents and materials that are under the direct or the Indemnified Party, as the case may be, reasonably apprised indirect control of the status Indemnitee or any of the Indemnitee's representatives and that the Indemnifying Party considers necessary or desirable for the defense of such Legal Proceeding; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any actionsettlement, compromise or adjustment relating to, such Legal Proceeding; (d) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintaining, and to cooperate in good faith with each other such Legal Proceeding; (e) the Indemnitee shall not admit any liability with respect to such Legal Proceeding; and (f) the Indemnifying Party shall not settle, adjust or compromise such Legal Proceeding without the prior written consent of the Indemnitee, such consent not to be unreasonably withheld. If the Indemnifying Party does not assume the defense of any such action. No Indemnified Party may settle Legal Proceeding, then the Indemnitee shall proceed diligently to defend such Legal Proceeding with the assistance of counsel satisfactory to the Indemnifying Party; provided, however, that the Indemnitee shall not settle, adjust or compromise such Legal Proceeding, or admit any claim or consent to the entry of any judgment liability with respect to which indemnification is being sought hereunder such Legal Proceeding, without the prior written consent of the Indemnifying Party, which shall such consent not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto any lawsuit or enforcement action (a "Third-Party Action") is filed against a Claimant entitled to the benefit of indemnity hereunder, written notice thereof (the "Indemnified PartyThird-Party Action Notice") receives notice or otherwise obtains knowledge shall be given by the Claimant to the Indemnifying Party as promptly as practicable (and in any event within five (5) Business Days after the service of the commencement citation or threat summons or other manner of process), provided that no failure to give such notice shall relieve the Indemnifying Party of any claimliability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice because of such failure). After receipt of such notice, demandthe Indemnifying Party shall be entitled, disputeif it so elects, action(i) to take control of the defense and investigation of such Third Party Action, suit(ii) to employ and engage attorneys of its choice to handle and defend the same, examinationat the Indemnifying Party's cost, auditrisk and expense, proceedingand (iii) to compromise or settle such Third-Party Action, investigationwhich compromise or settlement shall be made only with the written consent of the Claimant (such consent not to be unreasonably withheld, inquiry conditioned or delayed) unless such compromise or settlement involves only the payment of money damages and does not impose the specific performance or other similar matter that may give rise obligation upon the Claimant, in which case no such consent shall be required. If the Indemnifying Party fails to an indemnification claim against assume the other party hereto defense of such Third-Party Action within the earlier of fifteen (15) days after receipt of the "Third-Party Action Notice or ten (10) days prior to the expiration of any statute of limitations, the Claimant will (upon delivering notice to such effect to the Indemnifying Party")) have the right to undertake the defense, then the Indemnitee shall promptly deliver to the Indemnified Party a written notice describing such complaint compromise or the commencement settlement of such action or proceedingThird-Party Action; provided, however, that the failure to so notify the Indemnifying such Third-Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party Action shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action compromised or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder settled without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall keep the Claimant informed at all times of the status of the Third Party Action, and the Claimant may, at its own election and expense, participate in the defense of any such Third Party Action. In the event the Claimant assumes the defense of the Third-Party Action, the Claimant will keep the Indemnifying Party timely informed of the progress of any such defense, compromise or settlement.

Defense of Third Party Actions. If either party hereto (the "Indemnified Party") receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee Indemnified Party shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter after receipt of the notice to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim claim, or consent to the entry of any judgment with respect to which indemnification is being sought hereunder hereunder, without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto any lawsuit or enforcement action ------------------------------ (a "Third Party Action") is filed against a Claimant entitled to the benefit of indemnity hereunder, written notice thereof (the "Indemnified PartyThird-Party Action Notice") receives notice or otherwise obtains knowledge shall be given by Claimant to the Indemnifying Party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the commencement citation or threat summons or other manner of process). The failure of any claimClaimant to give notice timely hereunder shall not affect rights to indemnification hereunder, demandexcept to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. After such notice, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter if the Indemnifying Party shall acknowledge in writing to the Claimant that may give rise to an indemnification claim against the other party hereto (Indemnifying Party shall be obligated under the "Indemnifying Party")terms of its indemnity hereunder in connection with such Third-Party Action, then the Indemnitee Indemnifying Party shall promptly deliver be entitled, if it so elects, (i) to take control of the defense and investigation of such Third-Party Action, (ii) to employ and engage attorneys reasonably satisfactory to the Indemnified Claimant to handle and defend the same, at the Indemnifying Party's cost, risk and expense, and (iii) to compromise or settle such Third-Party a Action, which compromise or settlement shall be made only with the written notice describing consent of the Claimant, such complaint or consent not to be unreasonably withheld. If the commencement Indemnifying Party fails to assume the defense of such action Third-Party Action within fifteen (15) calendar days after receipt of the Third-Party Action Notice, the Claimant will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost and expense, the defense, compromise or proceedingsettlement of such Third-Party Action on behalf of and for the account and risk of the Indemnifying Party; provided, however, that the failure to so notify the Indemnifying such Third- -------- ------- Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party Action shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action compromised or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder settled without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld, conditioned or delayed. In the event the Claimant assumes the defense of the Third-Party Action, the Claimant will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Action effected pursuant to and in accordance with this Section 3 and for any final --------- judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless Claimant from and against any Losses by reason of such settlement or judgment.

Defense of Third Party Actions. If either party hereto Purchaser, its Affiliates or any of their respective directors, officers, employees or agents, on the one hand, or Seller, its Affiliates or any of their respective directors, officers, employees or agents, on the other hand (the "Indemnified PartyIndemnitee") ), receives notice or otherwise obtains knowledge of the commencement any matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar threatened matter that may give rise to an indemnification claim against Seller, on the one hand, or Purchaser, on the other party hereto hand (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceedingmatter in reasonable detail; provided, however, that the failure to so notify give such notice will not affect the Indemnifying Party shall relieve right of the Indemnifying Party from liability under this Agreement with respect Indemnitee to such claim only if, and only indemnification hereunder except to the extent that, that such failure to notify prejudices the Indemnifying Party results in ability of the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity indemnifying party to defend any Indemnification Claim or participate in the defense of said claimtake any other remedial action. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such matter with its own counsel. In the event, however, that If the Indemnifying Party declines or fails elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory and indemnification for any such matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such matter following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such actionmatter; provided, however, that the Indemnitee shall have the right to participate in such litigation and to retain the defense at its own counsel at such party's own expense. The Indemnifying Party or ; (b) the Indemnified Party, as the case may be, Indemnitee shall at all times use all commercially reasonable efforts make available to keep the Indemnifying Party all books, records and other documents and materials that are under the direct or the Indemnified Party, as the case may be, reasonably apprised indirect control of the status Indemnitee or any of the Indemnitee's agents and that the Indemnifying Party considers necessary or desirable for the defense of such matter, subject to any actionmutually acceptable joint defense or confidentiality agreements that may be entered into in the future; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintaining, and to cooperate in good faith with each other such matter; (e) the Indemnitee shall not admit any liability with respect to such matter; and (f) if the defense terms of any such action. No Indemnified Party may settle settlement, compromise or compromise any claim or consent to adjustment require no more than the entry payment of any judgment with respect to money, which indemnification is being sought hereunder without the prior written consent of amount will be paid by the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.the

Defense of Third Party Actions. If either party hereto Purchaser, on the one hand, or the Stockholder Representatives, on the other hand (the "Indemnified PartyIndemnitee") ), receives notice or otherwise obtains knowledge of the commencement any matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar threatened matter that may give rise to an indemnification claim against the Escrow Fund, on the one hand, or Purchaser, on the other party hereto hand (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement matter in reasonable detail. The timely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnitee to so notify the Indemnifying Party shall relieve be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Article 11 with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimmatter. The Indemnifying Party shall have the right, upon written notice delivered to at its option (acting through the Indemnified Party within 20 days thereafter Stockholder Representatives, if the "Indemnifying Party" is the Escrow Fund), to assume the defense of any such action or proceedingmatter with its own counsel, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that but only if the Indemnifying Party declines or fails simultaneously agrees to indemnify the Indemnitee for such matter. If the Indemnifying Party elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory and indemnification for any such matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such matter following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such action, matter; (b) the Indemnitee shall have the right make available to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party all books, records and other documents and materials that are under the direct or the Indemnified Party, as the case may be, reasonably apprised indirect control of the status Indemnitee or any of the Indemnitee's agents and that the Indemnifying Party considers necessary or desirable for the defense of such matter; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any actionsettlement, compromise or adjustment relating to, such matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintaining, and to cooperate in good faith with each other such matter; and (e) the Indemnitee shall not admit any liability with respect to such matter. Notwithstanding the foregoing, the Indemnifying Party shall not, without the prior written consent of the Indemnitee, agree to a settlement of any third party claim, unless the settlement provides an unconditional release and discharge of the Indemnitee. If the Indemnifying Party elects not to assume the defense of any and indemnification for such action. No Indemnified Party may settle matter, then the Indemnitee shall proceed diligently to defend such matter with the assistance of counsel reasonably satisfactory to the Indemnifying Party; provided, however, that the Indemnitee shall not settle, adjust or compromise such matter, or admit any claim or consent to the entry of any judgment liability with respect to which indemnification is being sought hereunder such matter, without the prior written consent of the Indemnifying Party, which shall such consent not to be unreasonably withheldwithheld or delayed. The In the event the Escrow Fund is the "Indemnifying Party Party" in connection with a matter, the Stockholder Representatives shall not settle have the right to pay any claim or assertion, unless attorneys' fees and other expenses of any defense of a matter assumed pursuant to this Section 11.4 out of the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheldamount then available thereunder.

Defense of Third Party Actions. If either party hereto (the "Indemnified Party"“Indemnitee”) receives notice or otherwise obtains knowledge of the commencement any Matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter threatened Matter that may give rise to an indemnification claim against the other party hereto (the "“Indemnifying Party"”), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceedingMatter in reasonable detail; provided, however, that for the failure sole purpose of determining whether a Matter or threatened Matter may give rise to so notify an indemnification claim against Sellers within the meaning of this sentence, the limitations set forth in Section 9.1 shall not be taken into account. The timely delivery of such written notice by the Indemnitee to the Indemnifying Party shall relieve be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Section 9 with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimMatter. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such Matter with its own counsel. In the event, however, that If the Indemnifying Party declines or fails elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory any such Matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such Matter following the Indemnifying Party, whichever is not assuming ’s election to assume the defense of such actionMatter; (b) the Indemnitee shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s Representatives and that the Indemnifying Party considers necessary or desirable for the defense of such Matter; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Matter; (e) the Indemnitee shall not admit any Liability with respect to such Matter; and (f) the Indemnifying Party shall have the exclusive right to participate in settle, adjust or compromise such litigation and to retain its own counsel at Matter, on such party's own expenseterms as it may deem appropriate, without the consent or approval of the Indemnitee or any other Person. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep If the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of elects not to assume the defense of such Matter, then the Indemnitee shall proceed diligently to defend such Matter with the assistance of counsel satisfactory to the Indemnifying Party; provided, however, that the Indemnitee shall not settle, adjust or compromise such Matter, or admit any action, the defense of which they are maintaining, and to cooperate in good faith with each other Liability with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder Matter, without the prior written consent of the Indemnifying Party, Party (which consents shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld).

Defense of Third Party Actions. If either party hereto (the "Indemnified Party") receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee Indemnified Party shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto any lawsuit or enforcement ------------------------------ action (a "Third Party Action") is filed against a Claimant entitled to the benefit of indemnity hereunder, written notice thereof (the "Indemnified PartyThird-Party Action Notice") receives notice or otherwise obtains knowledge shall be given by Claimant to the Indemnifying Party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the commencement citation or threat summons or other manner of process). The failure of any claimClaimant to give notice timely hereunder shall not affect rights to indemnification hereunder, demandexcept to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. After such notice, disputethe Indemnifying Party shall be entitled, actionif it so elects, suit(i) to take control of the defense and investigation of such Third-Party Action, examination(ii) to employ and engage attorneys reasonably satisfactory to the Claimant to handle and defend the same, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against at the other party hereto (the "Indemnifying Party")'s cost, then risk and expense, and (iii) to compromise or settle such Third-Party Action, which compromise or settlement shall be made only with the Indemnitee shall promptly deliver written consent of the Claimant, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party fails to assume the defense of such Third-Party Action at its cost within fifteen (15) calendar days after receipt of the Third-Party Action Notice, the Claimant will (upon delivering notice to such effect to the Indemnified Party a written notice describing such complaint Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost and expense, the defense, compromise or the commencement settlement of such action or proceedingThird-Party Action on behalf of and for the account and risk of the Indemnifying Party; provided, however, that the failure to so notify the Indemnifying such Third-Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party Action -------- ------- shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action compromised or proceeding. In any action or proceeding with respect to which indemnification is being sought hereundersettled, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, nor shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the an entry of any judgment with respect to which indemnification is being sought hereunder be agreed to, without (i) the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld, conditioned or delayed and (ii) an unconditional release of the Claimant and the Indemnifying Party. In the event the Claimant assumes the defense of the Third-Party Action, the Claimant will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Action effected pursuant to and in accordance with this Section 11 and for any final judgment (subject to any right of ---------- appeal), and the Indemnifying Party agrees to indemnify and hold harmless Claimant from and against any Losses by reason of such settlement or judgment.

Defense of Third Party Actions. If either party hereto (the "Indemnified Party") a Party receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim (collectively, a “Claim”) against the other party hereto (the "Indemnifying Party"), then the Indemnitee such Party shall promptly deliver to the Indemnified such other Party a written notice describing such complaint or the commencement of such action or proceedingClaim; provided, however, that the failure to so notify the Indemnifying such other Party shall relieve the Indemnifying such Party from liability under this Agreement with respect to such claim Claim only if, and only to the extent that, such failure to notify the Indemnifying such other Party results in the forfeiture by the Indemnifying such other Party of rights and defenses otherwise available to the Indemnifying such other Party with respect to such claim Claim or the opportunity to defend or participate in the defense of said claimClaim. The Indemnifying Such other Party shall have the right, upon written notice delivered to the Indemnified notifying Party within 20 twenty (20) days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified notifying Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying such other Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified notifying Party, in either case within such 20 twenty (20) day period, then such Indemnified the notifying Party may employ counsel, reasonably acceptable to the Indemnifying such other Party, to represent or defend it in any such action or proceeding proceeding, and the Indemnifying such other Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying such other Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified indemnified Party may not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying indemnifying Party, which shall not be unreasonably withheldwithheld or delayed. The Indemnifying indemnifying Party shall not settle any claim or assertionassertion in any manner that would impose any obligation on the indemnified Party (other than solely financial obligations against which indemnifying Party fully indemnifies the indemnified Party in accordance with this Section 6), unless the Indemnified indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheldwithheld or delayed.

Defense of Third Party Actions. If either party hereto any lawsuit or enforcement action (a "Third Party Action") is filed against a Claimant entitled to the benefit of indemnity hereunder, written notice thereof (the "Indemnified PartyThird-Party Action Notice") receives notice or otherwise obtains knowledge shall be given by the Claimant to the Indemnifying Party as promptly as practicable (and in any event within five business days after the service of the commencement citation or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry summons or other similar matter manner of process), provided, that may give rise the failure to an provide such timely notice shall not relieve the Indemnifying Party of its indemnification claim against obligations hereunder unless it has been unduly prejudiced thereby and provided further that, except to the other party hereto (extent permitted by Section 10, in no event shall such notice be effective if given after the "date that is 18 months after the Closing Date. After such notice, if the Indemnifying Party")Party shall acknowledge in writing to the Claimant that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such Third-Party Action, then the Indemnitee Indemnifying Party shall promptly deliver be entitled, if it so elects, (i) to take control of the defense and investigation of such Third-Party Action, (ii) to employ and engage attorneys of its choice reasonably satisfactory to the Indemnified Claimant to handle and defend the same, at the Indemnifying Party's cost, risk and expense, and (iii) to compromise or settle such Third-Party a Action, which compromise or settlement shall be made only with the written notice describing consent of the Claimant (such complaint consent not to be unreasonably withheld, conditioned or delayed) unless such compromise or settlement involves only the commencement payment of money damages and does not impose an injunction or other equitable relief upon the Claimant. If the Indemnifying Party fails to assume the defense of such action Third-Party Action within 15 days after receipt of the Third-Party Action Notice, the Claimant will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or proceedingsettlement of such Third-Party Action; provided, however, that the failure to so notify the Indemnifying such Third-Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party Action shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action compromised or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder settled without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld, conditioned or delayed. In the event the Claimant assumes the defense of the Third-Party Action, the Claimant will keep the Indemnifying Party timely informed of the progress of any such defense, compromise or settlement.

Defense of Third Party Actions. If either party hereto (the "Indemnified Party") receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Party a written notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, which consent shall not be unreasonably withheldMARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.

Defense of Third Party Actions. If either party hereto (the "an Indemnified Party") Party receives notice or otherwise obtains knowledge of the commencement or threat Knowledge of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry Claim or other similar matter any threatened Claim that may give rise to an indemnification claim against the other party hereto (the "an Indemnifying Party"), then the Indemnitee Indemnified Party shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement Claim in reasonable detail. The untimely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from of liability under this Agreement with respect to such claim only if, and only Claim to the extent that, such failure to notify the Indemnifying Party results in the forfeiture it has been prejudiced by the Indemnifying Party lack of rights and defenses otherwise available to the Indemnifying Party timely notice under this Article 11 with respect to such claim or the opportunity to defend or participate in the defense of said claimClaim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option to assume the defense of any such action or proceedingClaim with its own counsel, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, provided that Shareholders may not assume the defense of any Claim unless there are sufficient amounts in either case within the Indemnification Escrow Amount to fully indemnify Purchaser Indemnified Parties against the amount of such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to Claim and all other pending Claims against the Indemnifying Party, to represent or defend it in any such action or proceeding and Escrow Amount. If the Indemnifying Party shall pay elects to assume the reasonable fees defense of and disbursements of indemnification for any such counsel as incurred; providedClaim, howeverthen: (a) notwithstanding anything to the contrary contained in this Agreement, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnified Party against any attorneys' fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party's election to assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (b) the Indemnified Party shall make available to the Indemnifying Party all books, records and disbursements other documents and materials that are under the direct or indirect control of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or any of the Indemnified Party's Associates that the Indemnifying Party, whichever is not assuming Party considers such necessary or desirable for the defense of such action, shall have matter at the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep expense of the Indemnifying Party and shall make available to the Indemnifying Party reasonable access to Indemnified Party's personnel; (c) the Indemnified Party shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Claim (with the Indemnifying Party to reimburse Indemnified Party for third-party, out-of-pocket expenses) and the Indemnified Party shall not be required to take any such action or execute any document which imposes any equitable or unindemnified liability remedy on any Indemnified Party or would adversely affect the business or operations of the Company or the Subsidiaries; (d) the Indemnified Party, Party shall otherwise fully cooperate as reasonably requested by the case may be, reasonably apprised of the status of Indemnifying Party in the defense of such Claim (with the Indemnifying Party to reimburse Indemnified Party for third-party, out-of-pocket expenses); and (e) the Indemnified Party shall not admit any action, liability with respect to such Claim. If the Indemnifying Party fails or refuses to assume the defense of which they are maintainingand indemnification for such Claim, then the Indemnified Party shall proceed diligently to defend such Claim with the assistance of counsel, and the Indemnifying Party shall thereafter reimburse Indemnified Party on a current basis, in accordance with the procedures set forth in this Agreement, as requested by Indemnified Party for all costs and expenses of defense for which Indemnified Party is entitled to cooperate in good faith with each other with respect indemnification pursuant to the defense terms of any such actionthis Agreement. No third party Claim may be settled by the Indemnified Party may settle or compromise any claim or consent to without notice to, and the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of of, the Indemnifying Party, Party which shall consent must not be unreasonably withheld. The Indemnifying Party shall If such consent is not settle any claim given, or assertion, unless written notice that it is being withheld and the reasons therefor has not been received by the Indemnified Party consents in writing within 15 days after such notice has been received, by the Indemnifying Party, the consent of the Indemnifying Party to such settlement, which consent settlement shall not be unreasonably withhelddeemed given.

Defense of Third Party Actions. If either party hereto (The Seller shall assume the "Indemnified Party") defense of the KIH Matter with its own counsel. In addition, if any Indemnitee receives notice or otherwise obtains knowledge of any Matter or any threatened Matter other than the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter KIH Matter that may give rise and to an indemnification claim against the Indemnitee, then the Indemnitee shall promptly deliver to the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Party ) a written claim notice describing such complaint or the commencement of such action or proceedingMatter in reasonable detail; provided, however, that for the failure sole purpose of determining whether a Matter or threatened Matter may give rise to so notify an indemnification claim against Seller within the meaning of this sentence, the limitation set forth in Section 7.5 shall not be taken into account. The timely delivery of such written notice by the Indemnitee to the Indemnifying Party shall relieve be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Section 7 with respect to such claim only if, and only to Matter other than the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimKIH Matter. The Indemnifying Party shall have party has the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including Matter other than the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such KIH Matter with its own counsel. In If the event, however, that the Indemnifying lndemnif~dng Party declines or fails elects to assume the defense of any such Matter including the action or proceeding or to employ counsel reasonably satisfactory KIH Matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such Matter following the Indemnifying Party, whichever is not assuming Parties election to assume the defense of such actionMatter; (b) the Indemnitee shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee's Representatives and that the Indemnitdng Party considers necessary or desirable for the defense of such Matter; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Matter; (e) the Indemnitee shall have the right to participate in the defense of such litigation and to retain Matter at its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as except in the case may be, of the KIH Matter where the legal fees of the Purchaser shall at all times use all commercially reasonable efforts be deemed to keep be Damages; (f) the Indemnitee shall not admit any liability with respect to such Matter; (g) the Indemnifying Party shall have the exclusive right to settle, adjust or compromise such Matter, on such terms as it may deem appropriate, without the Indemnified Party, as the case may be, reasonably apprised consent or approval of the status of Indemnitee or any other Person. If the Indemnifying Party elects not to assume the defense of such Matter, then the Indemnitee shall proceed diligently to defend such Matter with the assistance of counsel satisfactory to the Indemnifying Party; provided, however, that the Indemnitee shall not settle, adjust or compromise such Matter, or admit any action, the defense of which they are maintaining, and to cooperate in good faith with each other liability with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder Matter, without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. (a) If either party hereto (the "Indemnified PartyINDEMNITEE") receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter Proceeding that may give rise to an indemnification claim against the other party hereto (the "Indemnifying PartyINDEMNIFYING PARTY"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceeding; provided, however, that the failure to so notify the Proceeding in reasonable detail. The Indemnifying Party shall relieve assume the Indemnifying Party from liability under this Agreement defense of any such Proceeding with respect to such claim only ifits own counsel and at its own expense, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise provided: (i) The Indemnitee shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee's Representatives and that the Indemnifying Party considers necessary or desirable for the defense of such Proceeding; (ii) The Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Proceeding; (iii) The Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Proceeding; (iv) The Indemnitee shall not admit any liability with respect to such claim or the opportunity to defend or participate in the defense of said claim. Proceeding; and (v) The Indemnifying Party shall have must obtain the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying PartyIndemnitee to settle, which shall adjust or compromise such Proceeding, not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld. (b) In the event that a judgment is finally upheld against the Indemnitee, then the Indemnifying party shall pay such judgment on behalf of the Indemnitee as well as any legal expenses it has incurred.

Defense of Third Party Actions. If either party any of the Parties hereto (the "Indemnified PartyIndemnitee") receives notice or otherwise obtains knowledge of the commencement or threat Knowledge of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry Legal Proceeding or other similar matter any threatened Legal Proceeding that may give rise to an indemnification claim against the any other party Party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceedingLegal Proceeding in reasonable detail; provided, however, that for the failure sole and limited purpose of determining whether a Legal Proceeding or threatened Legal Proceeding may give rise to so notify an indemnification claim against the Indemnifying Party within the meaning of this sentence, the Threshold Amount set forth in Section 7.4(a) or 7.4(b), as applicable, shall not be taken into account. The timely delivery of such written notice by the Indemnitee to the Indemnifying Party shall relieve not be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Section 7.8 with respect to such claim only ifLegal Proceeding, and only except to the extent that, such failure to notify the Indemnifying Party results in is actually prejudiced. With the forfeiture by consent of the Indemnifying Party of rights and defenses otherwise available to Indemnitee, which will not be unreasonably withheld, conditioned or delayed, the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such Legal Proceeding with its own counsel. In the event, however, that If the Indemnifying Party declines or fails agrees to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory any such Legal Proceeding, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such Legal Proceeding following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such action, Legal Proceeding; (b) the Indemnitee shall have the right make available to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party all books, records and other documents and materials that are under the direct or the Indemnified Party, as the case may be, reasonably apprised indirect control of the status Indemnitee or any of the Indemnitee's Representatives and that the Indemnifying Party considers reasonably necessary or desirable for the defense of such Legal Proceeding; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any actionsettlement, compromise or adjustment relating to, such Legal Proceeding; (d) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintaining, and to cooperate in good faith with each other such Legal Proceeding; (e) the Indemnitee shall not admit any liability with respect to such Legal Proceeding; (f) the Indemnifying Party shall not settle, adjust or compromise such Legal Proceeding without the prior written consent of the Indemnitee, such consent not to be unreasonably withheld, conditioned or delayed; and (g) Each Indemnifying Party hereby consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnifying Party for purposes of any claim that an Indemnifying Party may have under this Agreement with respect to such Proceeding or the matters alleged therein, and agree that process may be served on such Indemnifying Party with respect to such a claim anywhere in the United States. If the Indemnifying Party does not assume the defense of any such action. No Indemnified Party may settle Legal Proceeding, then the Indemnitee shall proceed diligently to defend such Legal Proceeding with the assistance of counsel reasonably satisfactory to the Indemnifying Party; provided, however, that the Indemnitee shall not settle, adjust or compromise such Legal Proceeding, or admit any claim or consent to the entry of any judgment liability with respect to which indemnification is being sought hereunder such Legal Proceeding, without the prior written consent of the Indemnifying Party, which shall such consent not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party any Party hereto (the "Indemnified PartyIndemnitee") receives notice or otherwise obtains knowledge of the commencement any matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar threatened matter that may give rise to an indemnification claim against the other party another Party hereto (the "Indemnifying PartyIndemnitor"), then the Indemnitee shall promptly deliver to the Indemnified Party Indemnitor a written notice describing such complaint or matter in reasonable detail. The failure by an Indemnitee to provide such written notice by the commencement Indemnitee to the Indemnitor shall not affect any liability on the part of the Indemnitor under this Article IX, except to the extent the Indemnitor is prejudiced by such action or proceedingfailure. In the event of a matter involving a third party claim against an Indemnitee, the Indemnitor shall have the right, at its option and expense, to assume the defense of any such claim with its own counsel reasonably acceptable to the Indemnitor; provided, however, that the failure Indemnitee shall not be required to so notify permit such an assumption of the Indemnifying Party shall relieve defense of such a claim which, if not first paid, discharged or otherwise complied with, would result in a material disruption or interruption of the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to business of the extent that, such failure Indemnitee or any material part thereof. Failure by the Indemnitor to notify the Indemnifying Party results in the forfeiture Indemnitee of its election to defend any such third party claim within twenty (20) days after it has received written notice thereof shall be deemed a waiver by the Indemnifying Party Indemnitor of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter its right to assume the defense of such action or proceeding, including claim. If the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails Indemnitor timely elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory any such third party claim, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect such claim following the Indemnitor's election to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming assume the defense of such actionclaim; (b) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee's Affiliates and that the Indemnitor considers necessary or desirable for the defense of such claim; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnitor may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such claim; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnitor in the defense of such Matter; (e) the Indemnitor shall have the exclusive right to participate in settle, adjust or compromise such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party third party claim without the consent or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised approval of the status Indemnitee or any other Person, but only if the terms of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, adjustment, or compromise provide only for the payment of money for which consent shall not be unreasonably withheldthe Indemnitor is liable under this Agreement.

Defense of Third Party Actions. If either party hereto (the "Indemnified PartyIndemnitee") receives notice or otherwise obtains knowledge of the commencement or threat Knowledge of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry Legal Proceeding or other similar matter any threatened Legal Proceeding that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint Legal Proceeding in reasonable detail; PROVIDED, HOWEVER, that for the sole purpose of determining whether a Legal Proceeding or threatened Legal Proceeding may give rise to an indemnification claim against the commencement Shareholders within the meaning of this sentence, the limitation set forth in Section 7.4 shall not be taken into account. The timely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnitee to so notify the Indemnifying Party shall relieve not be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Section 7 with respect to such claim only ifLegal Proceeding, and only except to the extent that, such failure to notify the Indemnifying Party results in is actually prejudiced. With the forfeiture by consent of the Indemnifying Party of rights and defenses otherwise available to Indemnitee, which will not be unreasonably withheld, the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such Legal Proceeding with its own counsel. In the event, however, that If the Indemnifying Party declines or fails to assume assumes the defense of the action or proceeding or to employ counsel reasonably satisfactory any such Legal Proceeding, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such Legal Proceeding following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such action, Legal Proceeding; (b) the Indemnitee shall have the right make available to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party all books, records and other documents and materials that are under the direct or the Indemnified Party, as the case may be, reasonably apprised indirect control of the status Indemnitee or any of the Indemnitee's Representatives and that the Indemnifying Party considers reasonably necessary or desirable for the defense of such Legal Proceeding; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any actionsettlement, compromise or adjustment relating to, such Legal Proceeding; (d) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintaining, and to cooperate in good faith with each other such Legal Proceeding; (e) the Indemnitee shall not admit any liability with respect to such Legal Proceeding; and (f) the Indemnifying Party shall not settle, adjust or compromise such Legal Proceeding without the prior written consent of the Indemnitee, such consent not to be unreasonably withheld. If the Indemnifying Party does not assume the defense of any such action. No Indemnified Party may settle Legal Proceeding, then the Indemnitee shall proceed diligently to defend such Legal Proceeding with the assistance of counsel reasonably satisfactory to the Indemnifying Party; PROVIDED, HOWEVER, that the Indemnitee shall not settle, adjust or compromise such Legal Proceeding, or admit any claim or consent to the entry of any judgment liability with respect to which indemnification is being sought hereunder such Legal Proceeding, without the prior written consent of the Indemnifying Party, which shall such consent not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto An Indemnified Party shall give prompt written notice to any entity that is obligated to provide indemnification hereunder (the an "Indemnified Indemnifying Party") receives notice or otherwise obtains knowledge of the commencement or threat assertion of any claimaction, proceeding, demand, disputeor claim by a third party (collectively, a "third party action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the ) in respect of which such Indemnified Party a written notice describing shall seek indemnification hereunder. Any failure so to notify an Indemnifying Party shall not relieve such complaint or the commencement of Indemnifying Party from any liability that it may have to such action or proceeding; provided, however, that Indemnified Party under this Article VIII unless the failure to so notify the give such notice materially and adversely prejudices such Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimParty. The Indemnifying Party shall have the rightright to assume control of the defense of, upon written notice delivered to settle, or otherwise dispose of such third party action on such terms as it deems appropriate; provided, however, that: (a) the Indemnified Party within 20 days thereafter shall be entitled, at its own expense, to assume participate in the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurredthird party action; providedPROVIDED, however, that the Indemnifying Party shall not be required to pay the attorneys' fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party if (i) the employment of separate counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such third party action, or (ii) the Indemnified Party's counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, whichever that there is not assuming the defense a conflict of such action, shall interest that could make it inappropriate under applicable standards of professional conduct to have the right to participate in such litigation and to retain its own counsel at such party's own expense. The common counsel; (b) no Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such third party action; and (c) the Indemnified Party shall be entitled to have sole control over the defense or settlement, compromise, admission, or acknowledgment of any third party action for which indemnification is being sought hereunder the Indemnifying Party notifies the Indemnifying Party in writing that it will not assume control of the defense; PROVIDED, that (i) the Indemnifying Party shall be entitled to participate at its own expense in the defense of such third party action and (ii) the Indemnified Party shall make no settlement, compromise, admission, or acknowledgment that would give rise to liability on the part of any Indemnifying Party without the prior written consent of the such Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party parties hereto shall not settle extend reasonable cooperation in connection with the defense of any claim or assertionthird party action pursuant to this Section 8.5 and, unless the Indemnified Party consents in writing to connection therewith, shall furnish such settlementrecords, which consent shall not information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be unreasonably withheldreasonably requested.

Defense of Third Party Actions. (a) If either party hereto a Buyer Indemnitee, on the one hand, or a Seller Indemnitee, on the other hand (the "Indemnified PartyIndemnitee") ), receives notice or otherwise obtains knowledge of the commencement any matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar threatened matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice (an "Indemnification Notice") describing such complaint or the commencement matter in reasonable detail. The timely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnitee to so notify the Indemnifying Party shall relieve not be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Article 11 with respect to such claim only ifmatter, and only except to the extent that, such failure to notify that the Indemnifying Party results in the forfeiture has suffered actual prejudice by such failure. Upon delivery of an Indemnification Notice, the Indemnifying Party shall promptly undertake the defense of rights and defenses otherwise available such matter using a firm reasonably acceptable to the Indemnifying Party with respect Indemnitee. The Indemnitee shall have the right to such claim employ separate counsel in any of the foregoing actions, claims or the opportunity proceedings and to defend or participate in the defense thereof and the fees and expenses of said claim. The such counsel shall be at the expense of the Indemnitee unless both Indemnitee and Indemnifying Party are named as parties and Indemnitee's counsel shall in good faith determine that representation by the same counsel is inappropriate. In the event that the Indemnifying Party shall, within ten days after receiving an Indemnification Notice fails to assume the defense thereof, Indemnitee shall have the rightright to undertake the defense, upon written notice delivered compromise or settlement of such action, claim or proceeding for the account of the Indemnifying Party subject to the Indemnified right of the Indemnifying Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of Loss with counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory Person at any time prior to the Indemnified Partysettlement, compromise or final determination thereof. Anything in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable this Section 11 to the Indemnifying Partycontrary notwithstanding, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; providednot, howeverwithout Indemnitee's prior written consent, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any action or claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of any Loss for anything other than money damages paid by the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party may, without the Indemnitee's prior written consent, settle or compromise any such action, claim or proceeding or consent to entry of any judgment with respect to any such Loss that requires solely the payment of money damages by the Indemnifying Party and that includes as an unconditional term thereof the release by the claimant or the plaintiff of Indemnitee from all liability in respect of such Loss. (b) the Indemnitee shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee's agents and that the Indemnifying Party considers necessary or desirable for the defense of such matter; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such matter; and (e) the Indemnitee shall not settle admit any claim or assertion, unless the Indemnified Party consents in writing liability with respect to such settlement, which consent shall not be unreasonably withheldmatter.

Defense of Third Party Actions. If either party hereto Nuvelo, Affymetrix or the Purchaser (the "Indemnified Party"“Indemnitee”) receives notice or otherwise obtains knowledge of the commencement any Matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter threatened Matter that may give rise to an indemnification claim against the other another party hereto (the "“Indemnifying Party"”), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement of such action or proceedingMatter in reasonable detail; provided, however, that for the failure sole purpose of determining whether a Matter or threatened Matter may give rise to so notify an indemnification claim against Sellers or Nuvelo within the meaning of this sentence, the limitation set forth in Section 12.5 shall not be taken into account. The timely delivery of such written notice by the Indemnitee to the Indemnifying Party shall relieve be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Section 12 with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimMatter. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option, to assume the defense of any such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such Matter with its own counsel. In the event, however, that If the Indemnifying Party declines or fails elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory any such Matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such Matter following the Indemnifying Party, whichever is not assuming ’s election to assume the defense of such actionMatter; (b) the Indemnitee shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s Associates and that the Indemnifying Party considers necessary or desirable for the defense of such Matter; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Matter; (e) the Indemnitee shall not admit any liability with respect to such Matter; and (f) the Indemnifying Party shall have the exclusive right to participate in settle, adjust or compromise such litigation and to retain its own counsel at Matter, on such party's own expenseterms as it may deem appropriate, without the consent or approval of the Indemnitee or any other Person. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep If the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of elects not to assume the defense of such Matter, then the Indemnitee shall proceed diligently to defend such Matter with the assistance of counsel satisfactory to the Indemnifying Party; provided, however, that the Indemnitee shall not settle, adjust or compromise such Matter, or admit any action, the defense of which they are maintaining, and to cooperate in good faith with each other liability with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder Matter, without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto Purchaser, on the one hand, or the Primary Shareholders, on the other hand (the "Indemnified Party") receives notice or otherwise obtains knowledge of the commencement any Claim or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter threatened Claim that may give rise to an indemnification claim against any Primary Shareholder, on the one hand, or Purchaser, on the other party hereto hand (the "Indemnifying Party"), then the Indemnitee Indemnified Party shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement Claim in reasonable detail. The untimely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from of liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture it has been prejudiced by the Indemnifying Party lack of rights and defenses otherwise available to the Indemnifying Party timely notice under this Article 11 with respect to such claim or the opportunity to defend or participate in the defense of said claimClaim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option to assume the defense of any such action or proceedingClaim with its own counsel, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and but only if the Indemnifying Party shall pay simultaneously agrees to indemnify persons and entities claiming indemnity from the reasonable fees Indemnified Party fully and disbursements completely (whether or not, in the case of any Primary Shareholder, there are sufficient funds in the Escrow Amount available for such counsel as incurred; providedpurpose) for such Claim. If the Indemnifying Party elects to assume the defense of and indemnification for any such Claim, howeverthen: (a) notwithstanding anything to the contrary contained in this Agreement, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, otherwise indemnify the Indemnified Party against any attorneys' fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such action, shall have matter so long as the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party continues to diligently conduct such defense; (b) the Indemnified Party shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the -42- Indemnified Party or any of the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep 's Associates and that the Indemnifying Party considers necessary or the Indemnified Party, as the case may be, reasonably apprised of the status of desirable for the defense of such matter at the expense of the Indemnifying Party; (c) the Indemnified Party shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any actionsettlement, compromise or adjustment relating to, such Claim (with the Indemnifying Party to reimburse Indemnified Party for third-party, out-of-pocket expenses) and the Indemnified Party shall not be required to take any such action or execute any document which imposes any equitable or unindemnified liability remedy on any Indemnified Party or would adversely affect the business or operations of Xxxxxxx Xxxxxxx or SPG; (d) the Indemnified Party shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintainingsuch Claim (with the Indemnifying Party to reimburse Indemnified Party for third-party, and to cooperate in good faith with each other out-of-pocket expenses); and (e) the Indemnified Party shall not admit any liability with respect to such Claim. If the Indemnifying Party fails or refuses to assume the defense of any and indemnification for such action. No Claim, then the Indemnified Party may settle shall proceed diligently to defend such Claim with the assistance of counsel; provided, however, that the Indemnified Party shall not settle, adjust or compromise such Claim, or admit any claim or consent to the entry of any judgment liability with respect to which indemnification is being sought hereunder such Claim, without the prior written consent of the Indemnifying Party, which shall such consent not to be unreasonably withheld. The withheld or delayed; and provided further, that, in the event the Indemnifying Party shall not settle any claim or assertionwithhold consent, unless then the Indemnifying Party shall thereafter reimburse Indemnified Party consents in writing on a current basis as requested by Indemnified Party for all costs and expenses of defense for which Indemnified Party are entitled to indemnification; and provided however, that when indemnification by the Indemnifying party is no longer required under this Section 11 by reason of any of the limitations contained herein, the Indemnifying Party's consent to any such settlement, which consent adjustment or compromise shall not no longer be unreasonably withheldrequired.

Defense of Third Party Actions. If either party hereto (the "Indemnified Party"“Indemnitee”) receives notice or otherwise obtains knowledge of the commencement or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter (a “Matter”) or any threatened Matter that may give rise to an indemnification claim against the other party hereto (the "“Indemnifying Party"”), then the Indemnitee shall will promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint Matter in reasonable detail; provided, however, that for the sole purpose of determining whether a Matter or threatened Matter may give rise to an indemnification claim against Seller within the commencement meaning of this sentence, the limitation set forth in Paragraph 11.9 will not be taken into account. The timely delivery of such action written notice by the Indemnitee to the Indemnifying Party will be a condition precedent to any liability on the part of the Indemnifying Party under this Paragraph 11.10 with respect to such Matter. The Indemnifying Party will have the right, at its option, to assume the defense of any such Matter with its own counsel satisfactory to the Indemnitee. If the Indemnifying Party elects to assume the defense of any such Matter, then: (a) notwithstanding anything to the contrary contained in this Agreement, the Indemnifying Party will be required to pay or proceedingotherwise indemnify the Indemnitee against any attorneys’ fees or other expenses incurred on behalf of the Indemnitee in connection with such Matter following the Indemnifying Party’s election to assume the defense of such Matter; (b) the Indemnitee will make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s Associates and that the Indemnifying Party considers necessary or desirable for the defense of such Matter; (c) the Indemnitee will execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Matter; (d) the Indemnitee will otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Matter; (e) the Indemnitee will not admit any liability with respect to such Matter; and (f) the Indemnifying Party will have the exclusive right to settle, adjust or compromise such Matter, on such terms as it may deem appropriate, with the consent and approval of the Indemnitee or any other Person. If the Indemnifying Party elects not to assume the defense of such Matter, then the Indemnitee will proceed diligently to defend such Matter with the assistance of counsel satisfactory to the Indemnifying Party; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from Indemnitee will not settle, adjust or compromise such Matter, or admit any liability under this Agreement with respect to such claim only ifMatter, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld.

Defense of Third Party Actions. If either party hereto a Buyer Indemnitee, on the one hand, or a Seller Indemnitee, on the other hand (the "Indemnified PartyIndemnitee") ), receives notice or otherwise obtains knowledge of the commencement any matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar threatened matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or the commencement matter in reasonable detail. The timely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnitee to so notify the Indemnifying Party shall relieve not be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Article 12 with respect to such claim only ifmatter, except, and only to the extent thatof, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available any actual prejudice to the Indemnifying Party with respect resulting from such failure to such claim or the opportunity to defend or participate in the defense of said claimmake timely delivery. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter at its option to assume the defense of any such action or proceedingmatter with its own counsel, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that but only if the Indemnifying Party declines or fails simultaneously agrees to indemnify the Indemnitee for such matter. If the Indemnifying Party elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory and indemnification for any such matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such matter following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such action, matter; (b) the Indemnitee shall have the right make available to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party all books, records and other documents and materials that are under the direct or the Indemnified Party, as the case may be, reasonably apprised indirect control of the status Indemnitee or any of the Indemnitee's agents and that the Indemnifying Party considers necessary or desirable for the defense of such matter; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any actionsettlement, compromise or adjustment relating to, such matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintaining, and to cooperate in good faith with each other such matter; and (e) the Indemnitee shall not admit any liability with respect to such matter. If the Indemnifying Party elects not to assume the defense of any and indemnification for such action. No Indemnified Party may settle matter, then the Indemnitee shall proceed with reasonable diligence to defend such matter with the assistance of Xxxxxx Godward LLP (in the case of the Seller) or Proskauer Rose LLP (in case of the Buyer) or other counsel reasonably satisfactory to the Indemnifying Party; PROVIDED, HOWEVER, that the Indemnitee shall not settle, adjust or compromise such matter, or admit any claim or consent to the entry of any judgment liability with respect to which indemnification is being sought hereunder such matter, without the prior written consent of the Indemnifying Party, which shall such consent not to be unreasonably withheld. The Indemnifying Party shall not settle any claim withheld or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withhelddelayed.

Defense of Third Party Actions. If either party hereto Purchaser, on the one hand, or the Stockholder Representatives, on the other hand (the "Indemnified PartyIndemnitee") ), receives notice or otherwise obtains knowledge of the commencement any matter or threat of any claim, demand, dispute, action, suit, examination, audit, proceeding, investigation, inquiry or other similar threatened matter that may give rise to an indemnification claim against the Escrow Fund, on the one hand, or Purchaser, on the other party hereto hand (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the Indemnified Indemnifying Party a written notice describing such complaint or matter in reasonable detail (the commencement "Claim Notice"). The timely delivery of such action or proceeding; provided, however, that written notice by the failure Indemnitee to so notify the Indemnifying Party shall relieve be a condition precedent to any liability on the part of the Indemnifying Party from liability under this Agreement Article 11 with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claimmatter. The Indemnifying Party shall have the rightright at its option (acting through the Stockholder Representatives, upon written notice delivered to if the Indemnified Party within 20 days thereafter "Indemnifying Party" is the Escrow Fund), to assume the defense of any such action or proceedingmatter with its own counsel, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that but only if the Indemnifying Party declines or fails simultaneously agrees to indemnify the Indemnitee for such matter. If the Indemnifying Party elects to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory and indemnification for any such matter, then: (a) notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys' fees and disbursements or other expenses incurred on behalf of more than one counsel for all Indemnified Parties the Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding connection with respect to which indemnification is being sought hereunder, the Indemnified Party or such matter following the Indemnifying Party, whichever is not assuming 's election to assume the defense of such action, matter; (b) the Indemnitee shall have the right make available to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party all books, records and other documents and materials that are under the direct or the Indemnified Party, as the case may be, reasonably apprised indirect control of the status Indemnitee or any of the Indemnitee's agents and that the Indemnifying Party considers necessary or desirable for the defense of such matter; (c) the Indemnitee shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any actionsettlement, comprise or adjustment relating to, such matter; (d) the Indemnitee shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of which they are maintaining, and to cooperate in good faith with each other such matter; and (e) the Indemnitee shall not admit any liability with respect to such matter. Notwithstanding the foregoing, the Indemnifying Party shall not, without the prior written consent of the Indemnitee, agree to settlement of any third party claim, unless the settlement provides an unconditional release and discharge of the Indemnitee. If the Indemnifying Party elects not to assume the defense of any and indemnification for such action. No Indemnified Party may settle matter, then the Indemnitee shall proceed diligently to defend such matter with the assistance of counsel reasonably satisfactory to the Indemnifying Party; provided, however, that the Indemnitee shall not settle, adjust or compromise such matter, or admit any claim or consent to the entry of any judgment liability with respect to which indemnification is being sought hereunder such matter, without the prior written consent of the Indemnifying Party, which shall such consent not to be unreasonably withheldwithheld or delayed. The In the event the Escrow Fund is the "Indemnifying Party Party" in connection with a matter, the Stockholder Representatives shall not settle have the right to pay any claim or assertion, unless attorneys' fees and other expenses of any defense of a matter assumed pursuant to this Section 11.4 out of the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheldamount then available thereunder.

Defense of Third Party Actions. If either party hereto any lawsuit or enforcement action (a "THIRD-PARTY ACTION") is filed against a Claimant entitled to the benefit of indemnity hereunder, written notice thereof (the "Indemnified PartyTHIRD-PARTY ACTION NOTICE") receives notice or otherwise obtains knowledge shall be given by the Claimant to the Indemnifying Party as promptly as practicable (and in any event within five (5) Business Days after the service of the commencement citation or threat summons or other manner of process), provided that no failure to give such notice shall relieve the Indemnifying Party of any claimliability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice because of such failure). After receipt of such notice, demandthe Indemnifying Party shall be entitled, disputeif it so elects, action(i) to take control of the defense and investigation of such Third Party Action, suit(ii) to employ and engage attorneys of its choice to handle and defend the same, examinationat the Indemnifying Party's cost, auditrisk and expense, proceedingand (iii) to compromise or settle such Third-Party Action, investigationwhich compromise or settlement shall be made only with the written consent of the Claimant (such consent not to be unreasonably withheld, inquiry conditioned or delayed) unless such compromise or settlement involves only the payment of money damages and does not impose the specific performance or other similar matter that may give rise obligation upon the Claimant, in which case no such consent shall be required. If the Indemnifying Party fails to an indemnification claim against assume the other party hereto defense of such Third-Party Action within fifteen (15) days after receipt of the "Third-Party Action Notice or within three (3) days prior to the expiration of any statute of limitations, the Claimant will (upon delivering notice to such effect to the Indemnifying Party")) have the right to undertake the defense, then the Indemnitee shall promptly deliver to the Indemnified Party a written notice describing such complaint compromise or the commencement settlement of such action or proceedingThird-Party Action; provided, however, that the failure to so notify the Indemnifying such Third-Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within 20 days thereafter to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party Action shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action compromised or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder settled without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless the Indemnified Party consents in writing to such settlement, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall keep the Claimant informed at all times of the status of the Third Party Action, and the Claimant may, at its own election and expense, participate in the defense of any such Third Party Action. In the event the Claimant assumes the defense of the Third-Party Action, the Claimant will keep the Indemnifying Party timely informed of the progress of any such defense, compromise or settlement.

Defense of Third Party Actions. If either (a) A party hereto seeking indemnification under this Article X (the "an “Indemnified Party"”) receives shall give prompt written notice or otherwise obtains knowledge to any Person who is obligated to provide indemnification hereunder (an “Indemnifying Party”) of the commencement or threat assertion of any claimaction, proceeding, demand, disputeor claim by a third party other than any claim relating to Taxes (which is covered by Section 11.5) (collectively, action, suit, examination, audit, proceeding, investigation, inquiry or other similar matter that may give rise to an indemnification claim against the other party hereto (the "Indemnifying Party"), then the Indemnitee shall promptly deliver to the a “Third-Party Action”) in respect of which such Indemnified Party a written notice describing such complaint or the commencement of such action or proceedingshall seek indemnification hereunder; provided, however, that the failure to so notify shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have ten (10) days after receipt of such notice to assume control of the defense of, settle, or otherwise dispose of such Third-Party Action, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, and on such terms as it deems appropriate; provided, that the Indemnifying Party shall relieve be entitled to assume the Indemnifying Party from liability under this Agreement with respect to defense of such claim only if, and action only to the extent that, such failure to notify the Indemnifying Party results acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any loss resulting therefrom (subject to the limitations set forth in Section 10.6(a)); and provided, further, that: (i) the forfeiture by Indemnified Party shall have the Indemnifying right to retain control of the defense of, settle, or otherwise dispose of such Third-Party of rights and defenses otherwise available to Action on such terms as it deems appropriate, but only if the Indemnified Party waives all claims for indemnification from the Indemnifying Party with respect to such claim or the opportunity to defend or participate in the defense of said claim. The Indemnifying Third-Party shall have the right, upon written notice delivered to Action; (ii) the Indemnified Party within 20 days thereafter shall be entitled, at its own expense, to assume participate in, but not control, the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Third-Party Action; and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20 day period, then such Indemnified Party may employ counsel, reasonably acceptable to the Indemnifying Party, to represent or defend it in any such action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that (iii) the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use all commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which they are maintaining, and to cooperate in good faith with each other with respect to the defense of any such action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party a full release from all liability in respect to which indemnification is being sought hereunder without the prior written consent of such Third-Party Action. (b) If the Indemnifying Party, which shall Party does not be unreasonably withheld. The Indemnifying Party shall not settle any claim or assertion, unless notify the Indemnified Party consents in writing within ten (10) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to such settlementundertake the defense thereof, which consent the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. (c) The parties hereto shall extend reasonable cooperation in connection with the defense of any Third-Party Action pursuant to this Article X and, in connection therewith, shall furnish such records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be unreasonably withheldreasonably requested.