Common use of General Indemnification Provisions Clause in Contracts

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3, as the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”), in which case the applicable Indemnitor shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); provided, however, that the Basket shall not apply to any claims for breaches of any Special Reps; and (ii) no Indemnitor shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as the case may be, to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterization.

General Indemnification Provisions. The amount (a) For the purposes of this Section 6.04, the term “Indemnitee” shall refer to the person indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Section 6.02 or Section 6.03, as the case may be; the term “Indemnitor” shall refer to the person having the obligation to indemnify pursuant to such provisions. (b) An Indemnitee shall give written notice (a “Notice of Claim”) to the Indemnitor within ten (10) days after the Indemnitee has knowledge of any Losses suffered claim (including a Third-party Claim, as hereinafter defined) which an Indemnitee has determined has given or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid could give rise to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall accrue to any insurer affect the indemnification obligations of the Indemnitor hereunder, except to the extent that Indemnitor can demonstrate such waiver failure materially prejudiced such Indemnitor’s ability to successfully defend the matter giving rise to the claim. The Notice of subrogation would prejudice Claim shall state the nature of the claim, the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arises. The rights of any applicable insurance coverage), including party to indemnification or other remedies hereunder will not be affected in any indemnification received way by any investigation conducted or knowledge acquired at any time by such party with respect thereto and an Indemnitee may make a claim hereunder even where the full amount of the Losses is not yet known. (c) If an Indemnitor does not notify in writing the Indemnitee or within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such Affiliate from claim, the amount of such claim shall be conclusively deemed a liability of the Indemnitor hereunder. If the Indemnitor makes an unrelated party objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such Lossesclaim. If the Indemnitee and Indemnitor should so agree, net of a memorandum setting forth such agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision terms of this Purchase Agreement and applicable law. (including ARTICLE VIId) The obligations and liabilities of an Indemnitor under this Article VI with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes Losses arising from claims of application of any third party that are subject to the indemnification provisions provided for in this Article VI (“Third-party Claims”) shall be governed by the following additional terms and conditions: the Indemnitee shall promptly deliver to the Notice of Claim in accordance with Section 6.04(b) to the Indemnitor, and upon the written agreement of the Indemnitor that it is obligated to indemnify under this ARTICLE VII: (i) no Article VI, the Indemnitor shall be liable have the right to assume and control the defense (including all proceedings on appeal or for an indemnification claim made under clause (areview which counsel for the defendant shall deem appropriate) of Section 7.2 or Section 7.3, as such Third-party Claim by appropriate proceedings at its sole cost and expense with counsel reasonably acceptable to the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”)Indemnitee, in which case the applicable Indemnitor shall reasonably settle or prosecute such Third-party Claim to a final conclusion. The Indemnitee will have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be obligated at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee(s) for the amount of Indemnitee and its attorneys and accountants all Losses books and records of the Indemnitee(s) (including Indemnitor relating to such Third-party Claim, and the first dollar parties hereto agree to render to each other such assistance as they may reasonably require of Losses of each other in order to ensure the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); provided, however, that the Basket shall not apply to any claims for breaches proper and adequate defense of any Special Repssuch Third-party Claim. (e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; and (ii) no Indemnitor shall be liable for the settlement of which may act as an indemnification claim made under Section 7.2 or Section 7.3, as adverse and binding precedent upon the case may be, to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that Indemnitee with respect to any similar claims for breaches of any Special Reps, the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then or demands; (iii) in cash. The amount involves any criminal Proceeding; (iv) creates a conflict of any Loss arising interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those available to the breach Indemnitor; (vi) the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond the scope of any representation, warranty, covenant, obligation or agreement contained the indemnity provisions in this Agreement shall be Article VI; or (vii) the entire amount settlement of any Loss actually incurred by which may have, in the respective Indemnitee’s reasonable judgment, a material and adverse effect on the Indemnitee. Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee as a result with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such breach Third-party Claim and not just fulfil the Indemnitor’s indemnification obligations hereunder with respect thereto upon the Indemnitee’s reasonable request therefor. In any such event set forth in this subpart (e), that portion of such fees and expenses reasonably related to matters covered by the Loss that exceeds indemnity provisions contained in Article VI will be borne by the relevant level Indemnitor. (f) Notwithstanding the foregoing, no compromise or settlement of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim shall be made without the consent (not to be unreasonably withheld, conditioned, or delayed) of the Indemnitee unless all Losses related to such claim are paid in full by the Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which the Indemnitee and its affiliates by the party asserting such Company is a partyclaim, and may solely seek action against Seller. Unless otherwise required by such compromise or settlement excludes any injunctive or non- monetary relief applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationIndemnitee or its Affiliates.

General Indemnification Provisions. The amount (a) For the purposes of any Losses suffered or incurred by any Indemnitee this Section, the term "Indemnitee" shall be reduced by the amount of any insurance proceeds or other cash receipts paid refer to the Indemnitee person or any Affiliate thereof as a reimbursement with respect persons indemnified, or entitled, or claiming to such Losses (and no right of subrogation shall accrue be entitled, to any insurer hereunderbe indemnified, except pursuant to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3Article X, as the case may be; and the term "Indemnitor" shall refer to the person having the obligation to indemnify pursuant to this Article X. The term "Losses" is not limited to matters asserted by third parties, unless but includes Losses incurred or sustained by an Indemnitee in the absence of third party claims, and until payments by the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or Indemnitee shall not be a condition precedent to recovery. Amounts payable by the Seller Indemnified Parties, collectively, under clause (a) Parties to Buyer in respect of Section 7.3, as applicable, exceed an aggregate amount equal Losses for which Buyer is entitled to $25,000 (the “Basket”), in which case the applicable Indemnitor indemnification hereunder shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or payable by the Seller Indemnified Parties, Parties as applicable, required to reach the Basket); provided, however, that the Basket shall not apply to any claims for breaches of any Special Reps; and (ii) no Indemnitor shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as the case may be, to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if anyBuyer. Seller will not have any right to seek contribution from either Company or Amounts payable by Buyer with respect to all Losses for which Xxxxxx Xxxx, Sopilote or Shareholder are entitled to indemnification shall be paid by Buyer as incurred. (b) An Indemnitee shall give the Indemnitor notice of any part matter which an Indemnitee has determined has given or could give rise to a right of Seller’s indemnification obligations under this ARTICLE VIIAgreement as soon as practicable after the Indemnitee becomes aware of such matter, stating the amount of Losses, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. Buyer The obligations and liabilities of an Indemnitor under this Article with respect to Losses arising from claims of any third party that are subject to the indemnification provided for in this Article ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnitee shall receive notice of any Third Party Claim, the Indemnitee shall give the Indemnitor notice of such Third Party Claim as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons) and shall permit the Indemnitor, at its option, to participate in the defense of such Third Party Claim by counsel of its own choice and at its expense; provided that such counsel is reasonably acceptable to Indemnitee. The Indemnitor shall also be entitled, at its option, to assume and control the defense of such Third Party Claim at its cost, risk and expense and through counsel of its choice if it gives notice, within fifteen (15) calendar days after receiving notice of such claim from the Indemnitee, of his or its intention to do so to the Indemnitee, unless the named parties to such action or proceeding include both the Indemnitor and the Indemnitee and the Indemnitee has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor. If the Indemnitor exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnitee shall cooperate with the Indemnitor in such defense and make available to the Indemnitor, at the Indemnitor's expense, all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnitor. Similarly, in the event the Indemnitee is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to it all such witnesses, records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnitee. No such Third Party Claim, except the settlement thereof which involves the payment of money only and for which the Indemnitee is fully indemnified by the Indemnitor, may be settled by the Indemnitor without the written consent of the Indemnitee, which consent will not be required unreasonably withheld. If the Indemnitor fails to make any claim assume the defense of such Third Party Claim within fifteen (15) calendar days after receipt of the notice thereof, the Indemnitee against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments claim has been asserted will constitute adjustments (upon delivering notice to such effect to the Purchase Price Indemnitor) have the right to undertake, at the Indemnitor's cost and expense, the defense, compromise or settlement of such claim on behalf of and for all Tax purposes, the account and no party may take risk of the Indemnitor and the Indemnitor will be bound by any position inconsistent with determination made in such characterizationclaim or compromise or settlement effected by the Indemnitee.

General Indemnification Provisions. The amount (a) For the purposes of this Section 6.04, the term Indemnitee shall refer to the person indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Section 6.02 or Section 6.03, Indemnitor such provisions. (b) An Indemnitee shall give written Notice of Claim days after the Indemnitee has knowledge of any Losses suffered claim (including a Third-party Claim, as hereinafter defined) which an Indemnitee has determined has given or incurred by any Indemnitee could give rise to a right of indemnification under this Purchase Agreement. No failure to give such Notice of Claim shall be reduced by affect the indemnification obligations of the Indemnitor ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claim, the amount of the Loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Purchase Agreement in respect of which such right of indemnification is claimed or arises. The rights of any insurance proceeds party to indemnification or other cash receipts paid to remedies hereunder will not be affected in any way by any investigation conducted or knowledge acquired at any time by such party with respect thereto and an Indemnitee may make a claim hereunder even where the full amount of the Losses is not yet known. (c) If an Indemnitor does not notify in writing the Indemnitee or any Affiliate thereof as within thirty (30) days after delivery of the Notice of Claim that the Indemnitor disputes such claim, the amount of such claim shall be conclusively deemed a reimbursement liability of the Indemnitor hereunder. If the Indemnitor makes an objection in writing, the Indemnitee and Indemnitor shall attempt in good faith for fifteen (15) days to agree upon the rights of the respective parties with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by claim. If the Indemnitee or and Indemnitor should so agree, a memorandum setting forth such Affiliate from agreement shall be prepared and signed by both parties. If such parties shall not agree, each Indemnitee shall be entitled to initiate proceedings and seek remedies as may be permitted under the terms of this Purchase Agreement and applicable law. (d) The obligations and liabilities of an unrelated party Indemnitor under this Article VI with respect to such Losses, net Losses arising from claims of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other third party shall affect such other party’s representations and warranties or the recourse available that are subject to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions provided for in this Article VI Third-party Claims conditions: the Indemnitee shall promptly deliver to the Notice of Claim in accordance with Section 6.04(b) to the Indemnitor, and upon the written agreement of the Indemnitor that it is obligated to indemnify under this ARTICLE VII: (i) no Article VI, the Indemnitor shall be liable have the right to assume and control the defense (including all proceedings on appeal or for an indemnification claim made under clause (areview which counsel for the defendant shall deem appropriate) of Section 7.2 or Section 7.3, as such Third-party Claim by appropriate proceedings at its sole cost and expense with counsel reasonably acceptable to the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”)Indemnitee, in which case the applicable Indemnitor shall reasonably settle or prosecute such Third-party Claim to a final conclusion. The Indemnitee will have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be obligated at the expense of the Indemnitee except as set forth in subpart (e) below. The Indemnitee shall be kept informed of such Third-party Claim at all stages thereof, whether or not it is so represented. Upon reasonable notice, Indemnitor shall make available to the Indemnitee(s) for the amount of Indemnitee and its attorneys and accountants all Losses books and records of the Indemnitee(s) (including Indemnitor relating to such Third-party Claim, and the first dollar parties hereto agree to render to each other such assistance as they may reasonably require of Losses of each other in order to ensure the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); provided, however, that the Basket shall not apply to any claims for breaches proper and adequate defense of any Special Repssuch Third-party Claim. (e) Notwithstanding anything in this Article VI to the contrary, the Indemnitee will have the right to conduct and control, through counsel of its choosing, the defense, compromise and settlement of any Third-party Claim that (i) seeks as a remedy an injunction or other equitable or non-monetary relief against the Indemnitee; and (ii) no Indemnitor shall be liable for the settlement of which may act as an indemnification claim made under Section 7.2 or Section 7.3, as adverse and binding precedent upon the case may be, to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that Indemnitee with respect to any similar claims for breaches of any Special Reps, the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then or demands; (iii) involves any criminal Proceeding; (iv) creates a conflict of interest between the Indemnitor and Indemnitee; (v) the Indemnitee reasonably concludes that there are defenses available to it which are different from or additional to those available to the Indemnitor; (vi) the Indemnitee reasonably concludes that such Third- party Claim involves to a significant extent matters beyond the scope of the indemnity provisions in cashthis Article VI; or (vii) the sett effect on the Indemnitee. The amount Additionally, the Indemnitor will lose its right to contest, defend, litigate and settle the Third-party Claim if (A) it fails to accept a tender of the defense of the Third-party Claim, (B) it fails to diligently contest the Third-party Claim or (C) it fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that the Indemnitor has the financial resources to actively and diligently conduct the defense of such Third- at portion of such fees and expenses reasonably related to matters covered by the indemnity provisions contained in Article VI will be borne by the Indemnitor. (f) Notwithstanding the foregoing, no compromise or settlement of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement claim shall be made without the entire amount consent (not to be unreasonably withheld, conditioned, or delayed) of any Loss actually incurred the Indemnitee unless all Losses related to such claim are paid in full by the respective Indemnitor or other third-party source, such compromise or settlement results in the full and unconditional release of all claims with no admission of wrongdoing against the Indemnitee as a result of and its affiliates by the party asserting such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a partyclaim, and may solely seek action against Seller. Unless otherwise required by such compromise or settlement excludes any injunctive or non- monetary relief applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationIndemnitee or its Affiliates.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) For the purposes of this Section 9.4, the term “Indemnitee” shall refer to the Person or Persons indemnified, or entitled, or claiming to be entitled, to be indemnified, pursuant to the provisions of Section 7.2 9.2 or Section 7.39.3, as the case may be; the term “Indemnitor” shall refer to the Person having the obligation to indemnify pursuant to such provisions; and “Losses” shall refer to Seller Losses or Buyer Losses, unless and until as the Losses case may be. (b) Within a reasonable time following the determination thereof, an Indemnitee shall give the Indemnitor written notice of any matter which such Indemnitee has determined has given rise to a right of indemnification under this Agreement stating the amount of the Buyer Indemnified PartiesLoss, collectivelyif known, and method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises (subject to the last sentence of this subsection). The obligations and Liabilities of any party under clause this Article IX with respect to Losses arising from claims, assertions, events or proceedings of any third party (aincluding claims by any assignee or successor of the Indemnitee or any Governmental Authority), which are subject to the indemnification provided for in this Article IX (“Third Party Claims”) shall be governed by and be subject to the following additional terms and conditions: If any Indemnitee shall promptly give the Indemnitor written notice of Section 7.2 such Third Party Claim and shall permit the Indemnitor, at its option, to participate in the defense of such Third Party Claim by counsel of its own choice and at its expense. If the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee hereunder against any Loss (without limitation) that may result from such Third Party Claim, then the Indemnitor shall be entitled, at its option, to assume and control the defense against such Third Party Claim at its expense and through counsel of its choice if it gives written notice of its intention to do so to the Indemnitee within fifteen (15) calendar days of the receipt of notice of such Third Party Claim from Indemnitee, unless, in the reasonable opinion of counsel for the Indemnitee, there is a conflict or a potential conflict of interest between the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (Indemnitee and the “Basket”)Indemnitor in such Action, in which case event the applicable Indemnitee shall be entitled to direct the defense of such Action with separate counsel of its choice reasonably acceptable to the Indemnitor. The reasonable fees and expenses of any such separate counsel shall be borne by the Indemnitor. In the event that the Indemnitor exercises its right to undertake the defense against any Third Party Claim as provided above, the Indemnitee shall cooperate with the Indemnitor in such defense and make available to the Indemnitor, at Indemnitor’s expenses, all witnesses, pertinent records, materials and information in its possession or under its control reasonably relating thereto as is required by the Indemnitor. Similarly, in the event the Indemnitee is, directly or indirectly, conducting the defense against any Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to it all witnesses, pertinent records, materials and information in its possession or under its control reasonably relating thereto as is reasonably required by the Indemnitee. No such Third Party Claim, except the settlement thereof which involves (i) the payment of money only either by a party other than the Indemnitee or for which the Indemnitee is totally indemnified (without limitation) by the Indemnitor, (ii) the unconditional release from all related liability of the Indemnitee, (iii) the imposition of no condition or limitation on Indemnitee’s on-going business, and (iv) no adverse impact on Indemnitee’s reputation, may be obligated settled by the Indemnitor without the written consent of the Indemnitee. In the event that an Indemnitee reasonably determines, and gives notification to the Indemnitee(s) for Indemnitor, that the amount of all Losses failure to resolve a Third Party Claim is having a Material Adverse Effect on the Indemnitee’s on-going business, and as a result the Indemnitee wishes to propose a settlement of the Indemnitee(s) (including Third Party Claim and the first dollar of Losses of third party will unconditionally release the Buyer Indemnified Parties Indemnitor from any and all Liabilities relating to or arising from such Third Party Claim, then the Seller Indemnified Parties, as applicable, required Indemnitor shall not unreasonably withhold its consent to reach the Basket)such settlement; provided, however, that the Basket this provision shall not apply if the Indemnitee is entitled to any claims for breaches direct the defense of such Action pursuant to this Section and the Indemnitee has exercised such right. If the Indemnitor does not consent to such settlement, the Indemnitee may settle the Third Party Claim on the terms proposed without discharging the Indemnitor from its liability hereunder with respect to such Third Party Claim. The foregoing notwithstanding, the failure of any Special Reps; and (ii) no Indemnitor Indemnitee to give any notice required to be given hereunder shall be liable for an not affect such Indemnitee’s right to indemnification claim made under Section 7.2 or Section 7.3, as the case may be, hereunder except to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 Indemnitor from whom such indemnity is sought shall have been actually and materially prejudiced in its ability to defend the claim or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date action for which such indemnification is sought by reason of such claim failure. (the “Indemnification Cap”); provided, that c) Payment by an Indemnitee to a third party with respect to any claims for breaches of any Special Reps, the Indemnification Cap a Loss shall be an amount equal not affect such Indemnitee’s rights to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established pursuant to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationArticle IX.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) For the purposes of Section 7.2 this Agreement, the term "Indemnitee" shall refer to the Person or Section 7.3Persons indemnified, or entitled, or claiming to be entitled, to be indemnified, pursuant to the provisions of Sections 8.2 or 8.3, as the case may be, unless the term "Indemnitor" shall refer to the Person or Persons having the obligation to indemnify pursuant to such provisions and until "Losses" shall refer to the Sellers' Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”), in which case the applicable Indemnitor shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); provided, however, that the Basket shall not apply to any claims for breaches of any Special Reps; and (ii) no Indemnitor shall be liable for an indemnification claim made under Section 7.2 or Section 7.3Purchaser's Losses, as the case may be, to the extent that Losses of the Buyer Indemnified Parties, collectively, under . Nothing in this Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be make either party liable for indemnification for amounts of Loss that, with reasonable commercial efforts, the entire Indemnitee could satisfy through applicable insurance and/or insurance proceeds. (b) An Indemnitee shall give, within thirty (30) calendar days, the Indemnitor notice of any matter which an Indemnitee has determined has given or could give rise to a right of indemnification under this Agreement, stating the amount of any Loss actually incurred by the respective Indemnitee as Loss, if known, and method of computation thereof, all with reasonable particularity and containing a result reference to the provisions of this Agreement in respect of which such breach right of indemnification is claimed or arises. The obligations and not just that portion liabilities of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer Indemnitor under this Article with respect to all or Losses arising from claims of any part third party that are subject to the indemnification provided for in this Article ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnitee shall receive notice of Seller’s any Third Party Claim, the Indemnitee shall give the Indemnitor notice of such Third Party Claim within thirty (30) calendar days (PROVIDED, HOWEVER, that failure to give such notice shall not preclude indemnification obligations under this ARTICLE VIIArticle VIII unless there is actual prejudice to the rights of the Indemnitor) and shall permit the Indemnitor, at its option, to participate in the defense of such Third Party Claim by counsel of its own choice and at its expense. Buyer will If, however, the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee hereunder against any Losses that may result from such Third Party Claims (subject to the limitations set forth herein), then the Indemnitor shall be entitled, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnitee within five calendar days; PROVIDED, HOWEVER, that if the Indemnitee shall determine that its interests conflict with those of the Indemnitor, the Indemnitee shall be entitled to be represented at the Indemnitee's expense by separate counsel of its choice and to participate in the defense of any such Third Party Claim. In the event the Indemnitor exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnitee shall cooperate with the Indemnitor in such defense and make available to the Indemnitor, at the Indemnitor's expense, all witnesses, pertinent records, materials and information in the Indemnitee's possession or under the Indemnitee's control relating thereto as is reasonably required by the Indemnitor. Similarly, in the event the Indemnitee is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to the Indemnitee, at the Indemnitor's expense, all such witnesses, records, materials and information in the Indemnitor's possession or under the Indemnitor's control relating thereto as is reasonably required by the Indemnitee. No such Third Party Claim, except the settlement thereof that involves the payment of money only and for which the Indemnitee is released by the third party claimant and is totally indemnified by the Indemnitor, may be settled by the Indemnitor without the written consent of the Indemnitee, which consent shall not be required unreasonably withheld; PROVIDED, HOWEVER, that if a Third Party Claim is brought that relates in part to make matters for which indemnification pursuant to this Agreement may be available and in part to matters for which such indemnification may not be available, a party may settle any claim against either Company in respect segregable portion of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document such Third Party Claim as to which such Company indemnification may not be available. Similarly, no Third Party Claims that is being defended in good faith by the Indemnitor shall be settled by the Indemnitee without the written consent of the Indemnitor; PROVIDED, HOWEVER, that, if a partyThird Party Claim is brought that relates in part to matters for which indemnification pursuant to this Agreement may be available and in part to matters for which such indemnification may not be available, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no a party may take settle any position inconsistent with segregable portion of such characterizationThird Party Claims to which such indemnification may not be available.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) For the purposes of this Section 8.4, the term “Indemnitee” shall refer to the Person or Persons indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Section 7.2 8.1 or Section 7.38.2, as the case may be; the term “Indemnitor” shall refer to the Person or Persons having the obligation to indemnify pursuant to such provisions. (b) An Indemnitee shall promptly give the Indemnitor written notice (provided that the failure to promptly give notice shall relieve the Indemnitor of its indemnification obligations hereunder only to the extent, unless if any, that it is materially prejudiced thereby) of any matter which an Indemnitee has determined has given or could give rise to a right of indemnification under this Agreement. If an Indemnitee shall receive notice of any Claim of any third party that is subject to the indemnification provided for in this Article IX (“Third Party Claims”) the Indemnitee shall give the Indemnitor prompt written notice (“Notice”) of such Third Party Claim (provided that the failure to promptly give such Notice shall relieve the Indemnitor of its indemnification obligations hereunder only to the extent, if any, that it is materially prejudiced thereby). The Indemnitee shall permit the Indemnitor, at its option, to assume and until control the Losses defense of such Third Party Claim at its expense and through counsel of its choice (which counsel shall be reasonably acceptable to the Indemnitee) if it gives written notice of its intention to do so to the Indemnitee within 20 days after its receipt of the Buyer Indemnified PartiesNotice. After notice from the Indemnitor to the Indemnitee of the Indemnitor’s election to assume the defense of such Third-Party Claim, collectivelythe Indemnitor will not, under clause (a) so long as it diligently conducts such defense, be liable to the Indemnitee for any fees of Section 7.2 other counsel or any other expenses with respect to the Seller Indemnified Parties, collectively, under clause (a) defense of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”)such Third-Party Claim, in which each case subsequently incurred by the applicable Indemnitor shall be obligated to Indemnitee in connection with the Indemnitee(s) for the amount defense of all Losses such Third-Party Claim, other than reasonable costs of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket)investigation; provided, however, if the Indemnitee reasonably believes that counsel chosen by the Indemnitor would have a conflict of interest or if one or more defenses exist for the Indemnitee and not for the Indemnitor, the Indemnitee shall have the right, at the Indemnitor’s expense, to be represented by counsel of its own choosing in addition to counsel chosen by the Indemnitor. In the event the Indemnitor exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnitee shall cooperate with the Indemnitor in such defense and make available to the Indemnitor all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnitor. In the event that the Basket Indemnitor shall elect not apply to any claims for breaches undertake such defense, or within a reasonable time after Notice of any Special Reps; and such claim from the Indemnitee shall fail to defend, the Indemnitee (ii) no Indemnitor shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as the case may be, upon further written notice to the extent that Losses Indemnitor) shall have the right to undertake the defense, compromise or settlement of such claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal Indemnitor (subject to the total right of the cash portion of Indemnitor to assume the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date defense of such claim (at any reasonable time prior to settlement, compromise or final determination thereof). In the “Indemnification Cap”); providedevent the Indemnitee is, that with respect to directly or indirectly, conducting the defense against any claims for breaches of any Special Repssuch Third Party Claim, the Indemnification Cap Indemnitor shall be an amount equal cooperate with the Indemnitee in such defense and make available to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due it all such witnesses, records, materials and payable, shall be paid (i) first by applying such amounts against any obligations information in its possession or under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) its control relating thereto as is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred reasonably required by the respective Indemnitee. Except for the settlement of a Third Party Claim which involves the payment of money only and for which the Indemnitee as a result of such breach and not just that portion is totally indemnified by the Indemnitor, no Third Party Claim may be settled by the Indemnitor without the prior written consent of the Loss Indemnitee. An Indemnitee may not settle or compromise a Third Party Claim without the prior written consent of the Indemnitor, provided that exceeds the relevant level of materiality, if any. Seller Indemnitor has given the Indemnitee written notice that Indemnitor will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which fully indemnify the Indemnitee for such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationThird Party Claim.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) For the purposes of this Agreement, the term "Indemnitee" shall refer to the Person or Persons indemnified, or entitled, or claiming to be entitled, to be indemnified, pursuant to the provisions of Section 7.2 8.02 or Section 7.38.03, as the case may be, unless the term "Indemnitor" shall refer to the Person or Persons having the obligation to indemnify pursuant to such provisions and until "Losses" shall refer to the Sellers' Losses or the Purchaser's Losses, as the case may be. (b) An Indemnitee shall give, within fifteen calendar days, the Indemnitor notice of any matter which an Indemnitee has determined has given or could give rise to a right of indemnification under this Agreement, stating the amount of the Buyer Indemnified PartiesLoss, collectivelyif known, and method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations and Liabilities of the Indemnitor under clause this Article with respect to Losses arising from claims of any third party that are subject to the indemnification provided for in this Article (a"Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnitee shall receive notice of Section 7.2 or any Third Party Claim, the Seller Indemnified PartiesIndemnitee shall give the Indemnitor notice of such Third Party Claim within ten calendar days (provided, collectivelyhowever, that failure to give such notice shall not preclude indemnification under clause this Article VII unless there is actual prejudice to the rights of the Indemnitor) and shall permit the Indemnitor, at its option, to participate in the defense of such Third Party Claim by counsel of its own choice and at its expense. If, however, the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee hereunder against any Losses that may result from such Third Party Claims (a) of Section 7.3, as applicable, exceed an aggregate amount equal subject to $25,000 (the “Basket”limitations set forth herein), in which case then the applicable Indemnitor shall be obligated entitled, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnitee(s) for Indemnitee within five calendar days; provided, however, if the amount of all Losses Indemnitee shall determine that its interests conflict with those of the Indemnitee(s) (including Indemnitor, the first dollar Indemnitee shall be entitled to be represented at the Indemnitee's expense by separate counsel of Losses its -30- choice and to participate in the defense of any such Third Party Claim. In the event the Indemnitor exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnitee shall cooperate with the Indemnitor in such defense and make available to the Indemnitor, at the Indemnitor's expense, all witnesses, pertinent records, materials and information in the Indemnitee's possession or under the Indemnitee's control relating thereto as is reasonably required by the Indemnitor. Similarly, in the event the Indemnitee is, directly or indi rectly, conducting the defense against any such Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to the Indemnitee, at the Indemnitor's expense, all such witnesses, records, materials and information in the Indemnitor's possession or under the Indemnitor's control relating thereto as is reasonably required by the Indemnitee. No such Third Party Claim, except the settlement thereof that involves the payment of money only and for which the Indemnitee is released by the third party claimant and is totally indemnified by the Indemnitor, may be settled by the Indemnitor without the written consent of the Buyer Indemnified Parties or the Seller Indemnified PartiesIndemnitee, as applicable, required to reach the Basket)which consent shall not be unreasonably withheld; provided, however, that if a Third Party Claim is brought that relates in part to matters for which indemnification pursuant to this Agreement may be available and in part to matters for which such indemnification may not be available, a party may settle any segregable portion of such Third Party Claim as to which such indemnification may not be available. Similarly, no Third Party Claims that is being defended in good faith by the Basket shall not apply to any claims for breaches of any Special Reps; and (ii) no Indemnitor shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as settled by the case may be, to Indemnitee without the extent that Losses written consent of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”)Indemnitor; provided, however, that, if a Third Party Claim is brought that with respect relates in part to any claims matters for breaches of any Special Reps, the Indemnification Cap shall be an amount equal which indemnification pursuant to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall may be the entire amount of available and in part to matters for which such indemnification may not be available, a party may settle any Loss actually incurred by the respective Indemnitee as a result segregable portion of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document Third Party Claim s to which such Company is a party, and indemnification may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationnot be available.

General Indemnification Provisions. The amount 3.1 All claims for indemnification under this Agreement in respect of any Losses suffered third party claim shall be asserted and resolved as provided in this Section 3. 3.2 In the event that any third party claim or incurred by any demand (a “Claim”) for which either party (“Indemnitor”) may be liable under this Agreement to indemnify the other party (“Indemnitee”) is asserted against or sought to be collected from Indemnitee, Indemnitee shall be reduced by as promptly as practicable inform Indemnitor in writing of the amount Claim, and shall provide such details of the Claim (including amount, if known) and any insurance proceeds or other cash receipts paid documents relating thereto as are then available to it (the “Claim Notice”). The failure on the part of Indemnitee or any Affiliate thereof as to give a reimbursement with respect to such Losses (Claim Notice promptly shall not relieve the Indemnitor of any. indemnification obligations hereunder unless, and no right of subrogation shall accrue to any insurer hereunder, except then only to the extent that such waiver of subrogation would prejudice any applicable insurance coverage)that, including any indemnification received by the Indemnitee or such Affiliate Indemnitor is materially prejudiced thereby. 3.3 The Indemnitor shall have 15 days from an unrelated party with respect to such Losses, net delivery of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3, as the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 Claim Notice (the “BasketNotice Period”)) to inform Indemnitee whether or not it desires to conduct the defence of the Claim, in which case Indemnitor shall, at its sole cost and expense, have the applicable Indemnitor right to defend Indemnitee by appropriate proceedings and by counsel reasonably acceptable to Indemnitee and shall be obligated have the sole power to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket)direct and control such defence; provided, however, provided that the Basket Indemnitee may participate in such defence at its sole cost and expense. 3.4 Indemnitee shall not apply settle a Claim for which it is indemnified by Indemnitor unless Indemnitor does not defend Indemnitee against such Claim, except that Indemnitee shall have the sole right to any claims for breaches of any Special Reps; and (ii) no Indemnitor shall be liable for an indemnification claim made under Section 7.2 defend, settle or Section 7.3, as the case may be, to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that compromise a Claim with respect to any claims for breaches of any Special Repswhich it has waived its right to indemnification pursuant to this Agreement. 3.5 If Indemnitor does not serve notice under Section 3.3 during the Claim Period, the Indemnification Cap shall be an amount equal Indemnitee may take such steps as are reasonable to the Purchase Price. Any indemnification based on claims by defend itself against a Buyer Indemnified Party which are finally established Claim and to settle or compromise such Claim. 3.6 Unless Indemnitee agrees (such agreement not to be due unreasonably withheld) Indemnitor may settle or compromise actions and payable, shall be paid (i) first by applying such amounts against any obligations under consent to entry of judgments only on terms providing for the Note, then (ii) by returning delivery of the number claimant or plaintiff of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right a duly executed written unconditional release of Set-Off”) and then (iii) Indemnitee from all liability in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result respect of such breach and not just that portion of action. 3.7 During the Loss that exceeds the relevant level of materialityNotice Period, if any. Seller will not have any Indemnitee may, without prejudicing its right to seek contribution from either Company or Buyer indemnification, take reasonable actions to preserve all and any rights with respect to the subject matter of a Claim notified to Indemnitor. 3.8 Indemnitee will provide all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be assistance and access to all documents and personnel reasonably required to make any claim against either Company by Indemnitor in respect connection with the Defence of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationClaim.

General Indemnification Provisions. The amount indemnification obligations under this Agreement shall be subject to the following provisions: (a) The party seeking indemnification ("Indemnitee") shall notify the other party ("Indemnitor") of any Losses suffered Claim against Indemnitee within fifteen (15) days after it has notice of such Claim, but failure to notify Indemnitor shall in no case prejudice the rights of Indemnitee under this Agreement unless Indemnitor shall be prejudiced by such failure and then only to the extent of such prejudice. Should Indemnitor fail to discharge or incurred undertake to defend Indemnitee against such Claim (with counsel reasonably approved by any Indemnitee) within twenty (20) days after Indemnitee gives Indemnitor written notice of the same, then Indemnitee may settle such Claim and Indemnitor's liability to Indemnitee shall be reduced conclusively established by such settlement, the amount of any insurance proceeds or other cash receipts paid such liability to include both the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (settlement consideration and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage)reasonable costs and expenses, including reasonable attorneys' fees, incurred by Indemnitee in effecting such settlement. Indemnitee shall have the right to employ its own counsel in any indemnification received by such case, but the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection fees and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee expenses of such first party under any provision counsel shall be at the expense of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VIIIndemnitee unless: (i) no the employment of such counsel shall have been authorized in writing by Indemnitor in connection with the defense of such action, (ii) Indemnitor shall not have employed counsel to direct the defense of such action, or (iii) Indemnitee shall have reasonably concluded that there may be liable for an indemnification claim made under clause defenses available to it which are different from or additional to those available to Indemnitor and in fact asserts such defenses (a) in which case Indemnitor shall not have the right to direct the defense of Section 7.2 such action or Section 7.3, as the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”otherwise direct Indemnitee), in any of which case the applicable Indemnitor events such fees and expenses shall be obligated to the Indemnitee(sborne by Indemnitor. (b) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); provided, however, that the Basket shall not apply to any claims for breaches of any Special Reps; and (ii) no Indemnitor shall be liable for an The indemnification claim made rights under Section 7.2 or Section 7.3, as the case may be, to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount also extend to any present or future advisor, trustee, director, officer, partner, member, employee, beneficiary, shareholder, participant or agent of any Loss actually incurred by the respective or in Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company entity now or hereafter having a direct or indirect ownership interest in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationIndemnitee.

General Indemnification Provisions. (a) For the purposes of this Section 9.4, the term "Indemnitee" shall refer to the Person indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions hereof; the term "Indemnitor" shall refer to the Person having the obligation to indemnify pursuant to such provisions. (b) An Indemnitee shall give written notice (a "Notice of Claim") to the Indemnitor within ten (10) business days after the Indemnitee has knowledge of any claim (including a Third Party Claim, as hereinafter defined) which an Indemnitee has determined has given or could give rise to a right of indemnification under this Agreement. No failure to give such Notice of Claim shall affect the indemnification obligations of the Indemnitor hereunder except to the extent Indemnitor can demonstrate such failure materially prejudiced such Indemnitor’s ability to successfully defend the matter giving rise to the claim. The Notice of Claim shall state the nature of the claim, the amount of the loss, if known, and the method of computation thereof, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. (c) The obligations and liabilities of an Indemnitor under this Article IX with respect to losses arising from claims of any Losses third party that are subject to the indemnification provisions provided for in this Article IX ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: (i) The Indemnitee at the time it gives a Notice of Claim to the Indemnitor of the Third Party Claim shall advise the Indemnitor that Indemnitor shall be permitted, at Indemnitor’s option, to assume the control and defense of such Third Party Claim at its expense and through counsel of its choice if it gives prompt notice of its intention to do so to the Indemnitee; (ii) In the event the Indemnitor exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnitee shall cooperate with the Indemnitor in such defense and make available to the Indemnitor, without cost to Indemnitor, all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnitor; and (iii) Except for the settlement of a Third Party Claim which involves the payment of money only and for which the Indemnitee is totally indemnified by the Indemnitor, no Third Party Claim may be settled by the Indemnitor without the written consent of the Indemnitee, which consent shall not be unreasonably withheld. Similarly, no Third Party Claim may be settled by the Indemnitee without the written consent of the Indemnitor, which consent shall not be unreasonably withheld. (d) An Indemnified party shall take all reasonable steps within its control to mitigate any losses upon becoming aware of any event that could reasonably be expected to give rise thereto. (e) Any amount due to an Indemnified Party in connection with a loss suffered or incurred by any Indemnitee under this Agreement shall be reduced by netting from such loss the amount of any indemnification receivable by the Indemnified Party from a third party (including an insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement claim) with respect to such Losses loss. (f) The representations and warranties provided for in this Agreement shall terminate as provided for in 9.1 above and no party shall suffer liability under this Article IX for a breach thereof subsequent to such date. There shall be no termination of representations and warranties relating to Seller’s fraud, intentional misrepresentation or criminal activities. (g) A Party may only bring claims for indemnification during the thirty-one (31) month period commencing on the Closing Date. No Party shall have any right to indemnification for any matter of subrogation which the party had knowledge at Closing). (h) All amounts for which a Party claims indemnity shall accrue to be offset by any insurer hereundertax, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification or other benefit received by the Indemnitee or such Affiliate from non-breaching Party as a result of the event giving rise to an unrelated party indemnity claim. (i) The remedies expressly provided for in this Article IX are the Parties’ exclusive remedies with respect to such Lossesthe matters covered by this Agreement, net of excluding the costs of collection adjustment described in Section 2.5, and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor Party shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3, as the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”), in which case the applicable Indemnitor shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); provided, however, that the Basket shall not apply to any claims for breaches of other Party under this Agreement or any Special Reps; and (ii) no Indemnitor shall be liable for an indemnification claim made under Section 7.2 Related Agreement, at law or Section 7.3in equity, as the case may be, to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, matter not initiated within the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained time limits specified in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationArticle IX.

General Indemnification Provisions. (a) For the purposes of this Section 8.2, the term “Indemnitee” shall refer to the Parent Indemnitee indemnified or entitled, or claiming to be entitled, to be indemnified pursuant to the provisions of Section 8.1, and the term “Indemnitors” shall refer to the former Company Participating Preferred Shareholders. (b) The amount Indemnitee shall promptly give the Shareholders’ Representative notice of any Losses suffered matter which the Indemnitee has determined has given or incurred by any Indemnitee shall be reduced by could give rise to a right of indemnification under this Agreement (a “Claim”), stating the amount of any insurance proceeds the Losses (whether actual or other cash receipts paid reasonably estimated), the method of computation thereof and the basis for the Claim and shall specify the provision or provisions of this Agreement under which the Claim is asserted, in each case with reasonable particularity. Failure to give timely notice of a matter that may give rise to a Claim shall not affect the rights of the Indemnitee or any Affiliate thereof as a reimbursement with respect to collect such Losses (and no right of subrogation shall accrue to any insurer hereunder, Claim from the Indemnitors except to the extent that it materially adversely affects the Indemnitor’s ability to defend such waiver Claim against a third party. The obligations and liabilities of subrogation would prejudice the Indemnitors under this Article VIII with respect to Losses arising from Claims of any applicable insurance coverage), including any third party that are subject to the indemnification received provided for in this Article VIII (“Third-Party Claims”) shall be governed by the following additional terms and conditions: (i) if the Indemnitee shall receive notice of any Third-Party Claim, the Indemnitee shall give the Shareholders’ Representative prompt notice of such Third-Party Claim and shall permit the Shareholders’ Representative, at its option, to assume the defense and/or management of such Third-Party Claim at the Indemnitors’ expense and through counsel of its choice if the Shareholders’ Representative gives prompt notice of its intention to do so to the Indemnitee and does so promptly thereafter; (ii) if the Shareholders’ Representative exercises its right to undertake the defense and/or management of any such Third-Party Claim, the Indemnitee shall cooperate with the Shareholders’ Representative in such defense and/or management and make available to the Shareholders’ Representative all witnesses, pertinent records, materials and information in the Indemnitee’s possession or under its control relating thereto as is reasonably required by the Shareholders’ Representative; (iii) if the Shareholders’ Representative does not exercise its right to assume the defense and/or management of any Third-Party Claim as provided above, the Indemnitee may, directly or indirectly, conduct the defense and/or management of any such Affiliate Third-Party Claim in any manner it reasonably may deem appropriate and at the expense of Indemnitors, for which the Indemnitee may seek reimbursement from the Escrow Account, and the Shareholders’ Representative shall cooperate with the Indemnitee in such defense and/or management and make available to the Indemnitee all witnesses, pertinent records, materials and information in the Shareholders’ Representative’s possession or under its control relating thereto as is reasonably required by the Indemnitee; (iv) the Shareholders’ Representative will not consent to the entry of any judgment or enter into any settlement with respect to a Third-Party Claim unless the judgment or proposed settlement includes as an unrelated party unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of an unconditional release from all liability in respect of such Third-Party Claim; and (v) if the Shareholders’ Representative does not exercise its right to assume the defense and/or management of a Third-Party Claim, as provided above, the Indemnitee shall not consent to the entry of any judgment or enter into any settlement with respect to such Losses, net Third Party Claim unless the judgment or proposed settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to the Shareholder’s Representative of an unconditional release of the costs of collection and any related anticipated future increases in insurance premiums resulting former Company Participating Preferred Shareholders from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3, as the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”), in which case the applicable Indemnitor shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); provided, however, that the Basket shall not apply to any claims for breaches of any Special Reps; and (ii) no Indemnitor shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as the case may be, to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company liability in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationThird-Party Claim.

General Indemnification Provisions. (a) The amount indemnified party shall promptly notify the indemnifying party of any Losses suffered claim, demand, action or incurred by any Indemnitee shall be reduced by proceeding for which indemnification is sought under Section 6.2 or 6.3 of this Agreement and, if such claim, demand, action or proceeding is a third party claim, demand, action or proceeding, the amount of any insurance proceeds or other cash receipts paid indemnifying party will have the right, at its own expense, to assume the defense thereof using counsel reasonably acceptable to the Indemnitee or any Affiliate thereof indemnified party, except in the case of a claim that relates to Taxes, as a reimbursement to which Purchaser shall assume the defense, and Seller may, at their sole expense, participate in such defense. The indemnified party shall have the right to participate, at its own expense, with respect to any such Losses (third party claim, demand, action or proceeding. In connection with any such third party claim, demand, action or proceeding, the parties thereto shall cooperate with each other and no right of subrogation provide each other with access to relevant books and records in their possession. No such third party claim, demand, action or proceeding shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net be settled without prior written consent of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other indemnified party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3, as the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”), in which case the applicable Indemnitor shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); provided, however, that if a firm, written offer is made to settle any such third party claim, demand, action or proceeding and the Basket indemnifying party proposes to accept such settlement and the indemnified party refuses to consent to such settlement, then: (i) the indemnifying party shall not apply pay such amount to any claims for breaches the indemnified party; (ii) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of any Special Repssuch third party claim, demand, action or proceeding; and (iiiii) no Indemnitor the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be liable for an indemnification claim the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action or proceeding is greater that the amount of the proposed settlement. (b) Any payment made under Section 7.2 to or Section 7.3on behalf of any indemnified party shall be increased to such amount as will, after taking into account all Taxes imposed with respect to the accrual or receipt of such payment (as the case same may bebe increased pursuant this sentence), equal the amount of the payment otherwise due without considering the taxes payable by such party as a result of the accrual or receipt of such payment. (c) Upon payment by an indemnified party to a third party of an amount subject to indemnification, the indemnifying party shall discharge its indemnification obligation by paying to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed indemnified party an amount equal to the total amount paid by the indemnified party to the third party. (d) Unless disputed by the indemnifying parts, any payment pursuant to this Article VI shall be made not later than thirty (30) days after receipt by the indemnifying party of written notice from the indemnified party stating that an indemnifiable amount has been paid to a third party, and specifying the amount thereof and the amount of the cash portion indemnity payment requested. (e) Notwithstanding the terms of this Article VI, Seller shall have no liability for indemnification under Sections 6.2 and 6.4 unless and until the aggregate amount of claims for indemnification hereunder equals or exceeds Ten Thousand and No/100 Dollars ($10,000.00) (the "Threshold Amount"). Once the aggregate amount of the Purchase Price paid claims hereunder equal or exceed the Threshold Amount, Seller shall be liable for the full amount of all such claim amounts, including the Threshold Amount. Purchaser shall not be entitled to recover from Seller, under any circumastances whatsoever, an amount in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion excess of the Purchase Price under Section 2.6), plus any obligations under the Note paid as sum of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then Cash Portion of Purchase Price plus (ii) by returning the number Royalties paid during the term set forth in Section 1.2(b)(E) of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationAgreement.

General Indemnification Provisions. The amount An Indemnified Party shall promptly give the Indemnifying Party notice of any Losses suffered matter which an Indemnified Party has determined has given or incurred by any Indemnitee shall be reduced by could give rise to a right of indemnification under this Agreement, stating the amount of any insurance proceeds or other cash receipts paid the Loss, if known, and method of computation thereof, all with reasonable particularity and containing a reference to the Indemnitee provisions of this Agreement in respect of which such right of indemnification is claimed or any Affiliate thereof as a reimbursement arises. The obligations and liabilities of an Indemnifying Party under this Article with respect to such Losses (and no right arising from claims of subrogation shall accrue to any insurer hereunder, except third party that are subject to the extent that such waiver indemnification provided for in this Article ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of subrogation would prejudice any applicable insurance coverage)Third Party Claim, including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of Indemnified Party shall give the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee Indemnifying Party prompt notice of such first party under any provision Third Party Claim and shall permit the Indemnifying Party, at its option, to participate in the defense of this Agreement (including ARTICLE VII) with respect theretosuch Third Party Claim by counsel of its own choice and at its expense. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3, as the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”), in which case the applicable Indemnitor shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); providedIf, however, the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claims (subject to the Basket limitations set forth herein), then the Indemnifying Party shall be entitled, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives prompt notice of intention to do so to the Indemnified Party. In the event the Indemnifying Party exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to it all such witnesses, records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim, except the settlement thereof which involves the payment of money only and for which the Indemnified Party is totally indemnified by the Indemnifying Party, may be settled by the Indemnifying Party without the written consent of the Indemnified Party (which consent shall not apply to any claims for breaches of any Special Reps; and (ii) be unreasonably withheld). Similarly, no Indemnitor Third Party Claim which is being defended in good faith by the Indemnifying Party shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as settled by the case may be, to Indemnified Party without the extent that Losses written consent of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) Indemnifying Party (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap which consent shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationunreasonably withheld).

General Indemnification Provisions. The amount An Indemnified Party shall promptly give the Indemnifying Party notice of any Losses suffered matter which an Indemnified Party has determined has given or incurred by any Indemnitee shall be reduced by could give rise to a right of indemnification under this Agreement, stating the amount of any insurance proceeds or other cash receipts paid the Loss, if known, and method of computation thereof, all with reasonable particularity and containing a reference to the Indemnitee provisions of this Agreement in respect of which such right of indemnification is claimed or any Affiliate thereof as a reimbursement arises. The obligations and liabilities of an Indemnifying Party under this Article with respect to such Losses (and no right arising from claims of subrogation shall accrue to any insurer hereunder, except third party that are subject to the extent that such waiver indemnification provided for in this Article ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of subrogation would prejudice any applicable insurance coverage)Third Party Claim, including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of Indemnified Party shall give the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee Indemnifying Party notice of such first party under any provision Third Party Claim and shall permit the Indemnifying Party, at its option, to participate in the defense of this Agreement (including ARTICLE VII) with respect theretosuch Third Party Claim by counsel of its own choice and at its expense. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3, as the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”), in which case the applicable Indemnitor shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); providedIf, however, the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claims (subject to the Basket limitations set forth herein), then the Indemnifying Party shall be entitled, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives prompt notice of intention to do so to the Indemnified Party. In the event the Indemnifying Party exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the 44 Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to it all such witnesses, records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim, except the settlement thereof which involves the payment of money only and for which the Indemnified Party is totally indemnified by the Indemnifying Party, may be settled by the Indemnifying Party without the written consent of the Indemnified Party (which consent shall not apply to any claims for breaches of any Special Reps; and (ii) be unreasonably withheld). Similarly, no Indemnitor Third Party Claim which is being defended in good faith by the Indemnifying Party shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as settled by the case may be, to Indemnified Party without the extent that Losses written consent of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) Indemnifying Party (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap which consent shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationunreasonably withheld).

General Indemnification Provisions. The amount An Indemnified Party shall promptly give the Indemnifying Party written notice of any Losses suffered matter which an Indemnified Party has determined has given or incurred by any Indemnitee shall be reduced by could give rise to a right of indemnification under this Agreement, stating the amount of any insurance proceeds or other cash receipts paid the Loss, if known, and method of computation thereof, all with reasonable particularity and containing a reference to the Indemnitee provisions of this Agreement in respect of which such right of indemnification is claimed or any Affiliate thereof as a reimbursement arises. The obligations and liabilities of an Indemnifying Party under this Article with respect to such Losses (and no right arising from claims of subrogation shall accrue to any insurer hereunder, except third party that are subject to the extent that such waiver indemnification provided for in this Article ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of subrogation would prejudice any applicable insurance coverage)Third Party Claim, including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of Indemnified Party shall promptly give the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee Indemnifying Party written notice of such first party under any provision Third Party Claim and shall permit the Indemnifying Party, at its option, to participate in the defense of this Agreement (including ARTICLE VII) with respect theretosuch Third Party Claim by counsel of its own choice and at its expense. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3, as the case may be, unless and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”), in which case the applicable Indemnitor shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket); providedIf, however, the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claims (subject to the Basket limitations set forth herein), then the Indemnifying Party shall be entitled, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives prompt notice of intention to do so to the Indemnified Party. In the event the Indemnifying Party exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to it all such witnesses, records, materials and information in its possession or under its control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim, except the settlement thereof which involves the payment of money only and for which the Indemnified Party is totally indemnified by the Indemnifying Party, may be settled by the Indemnifying Party without the written consent of the Indemnified Party (which consent shall not apply to any claims for breaches of any Special Reps; and (ii) be unreasonably withheld). Similarly, no Indemnitor Third Party Claim which is being defended in good faith by the Indemnifying Party shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as settled by the case may be, to Indemnified Party without the extent that Losses written consent of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) Indemnifying Party (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap which consent shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterizationunreasonably withheld).

General Indemnification Provisions. The amount (a) For the purposes of this Section 8.3 and Section 8.4, the term "Indemnitee" shall refer to the person or persons indemnified, or entitled, or claiming to be entitled, to be indemnified, pursuant to the provisions of Section 8.2, and the term "Indemnitor" shall refer to the Shareholders. (b) Within a reasonable time following the determination thereof, an Indemnitee shall give the Indemnitor notice of any Losses suffered matter which an Indemnitee has determined has given or incurred by any Indemnitee shall be reduced by could give rise to a right of indemnification under this Agreement, stating the amount of any insurance proceeds or other cash receipts paid the Parent Loss, if known, and method of computation thereof, all with reasonable particularity and containing a reference to the Indemnitee provisions of this Agreement in respect of which such right of indemnification is claimed or any Affiliate thereof as a reimbursement arises. The obligations and liabilities of an Indemnitor under this ARTICLE VIII with respect to such Parent Losses (and no right arising from claims of subrogation shall accrue to any insurer hereunder, except third party that are subject to the extent that such waiver indemnification provided for in this ARTICLE VIII ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: If an Indemnitee shall receive notice of subrogation would prejudice any applicable insurance coverage)Third Party Claim, including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of shall promptly give the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee Indemnitor notice of such first party under any provision Third Party Claim and shall permit the Indemnitor, at its option, to undertake the defense of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes such Third Party Claim by counsel of application of the indemnification provisions of this ARTICLE VII: (i) no Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 7.2 or Section 7.3, as the case may be, unless its own choice and until the Losses of the Buyer Indemnified Parties, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed an aggregate amount equal to $25,000 (the “Basket”), in which case the applicable Indemnitor shall be obligated to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket)at its expense; provided, however, that the Basket failure of the Indemnitee to notify the Indemnitor during the required notification period shall not apply only relieve the Indemnitor from its obligation to any claims for breaches of any Special Reps; and (ii) no Indemnitor shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as indemnify the case may be, Indemnitee pursuant to this ARTICLE VIII to the extent that Losses of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) Indemnitor is materially prejudiced by such failure (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee whether as a result of the forfeiture of substantive rights or defenses or otherwise). If the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee hereunder against any Parent Losses that may result from such breach Third Party Claims, then the Indemnitor shall be entitled, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel of its reasonable choice if it gives notice to the Indemnitee within 20 calendar days of the receipt of notice of such Third Party Claim from the Indemnitee of its intention to do so. If the Indemnitor elects to assume and control the defense of any such Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in (but not just control) the defense, compromise or settlement of the Third Party Claim, but the fees and expenses of such counsel will be at the expense of the Indemnitee, unless (i) the Indemnitor has agreed to pay such fees and expenses, (ii) any relief other than the payment of money damages is sought against the Indemnitee, or (iii) the Indemnitee has been advised by its counsel that there may be one or more defenses reasonably available to it which are different from or additional to those available to the Indemnitor, and in any such case that portion of the Loss fees and expenses of such separate counsel that exceeds are reasonably related to matters covered by the relevant level indemnification provided by this ARTICLE VIII will be paid by the Indemnitor. Expenses of materiality, counsel to the Indemnitee shall be reimbursed on a current basis by the Indemnitor if anythere is no dispute as to the obligation of the Indemnitor to pay such amounts pursuant to this ARTICLE VIII. Seller will not have any In the event the Indemnitor exercises its right to seek contribution from either Company or Buyer undertake the defense against any such Third Party Claim as provided above, the Indemnitee shall cooperate with respect the Indemnitor in such defense and make available to the Indemnitor, at the Indemnitor's expense, all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company witnesses, pertinent records, materials and information in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder its possession or under any Ancillary Document to which such Company its control relating thereto as is a party, and may solely seek action against Seller. Unless otherwise reasonably required by applicable Lawthe Indemnitor. Similarly, in the event the Indemnitee is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to it, at the Indemnitor's expense, all indemnification payments will constitute adjustments to such witnesses, records, materials and information in its possession or under its control relating thereto as is reasonably required by the Purchase Price Indemnitee. No such Third Party Claim, except the settlement thereof which involves the payment of money only (by a party or parties other than the Indemnitee) and for all Tax purposeswhich the Indemnitee is released by the third party claimant and is totally indemnified by the Indemnitor, and no party may take any position inconsistent with such characterizationbe settled by the Indemnitor without the written consent of the Indemnitee. No Third Party Claim which is being defended in good faith by the Indemnitor shall be settled by the Indemnitee without the written consent of the Indemnitor.

General Indemnification Provisions. (a) The amount indemnified party shall promptly notify the indemnifying party of any Losses suffered claim, demand, action or incurred by any Indemnitee shall be reduced by proceeding for which indemnification is sought under Section 6.2 or 6.3 of this Agreement and, if such claim, demand, action or proceeding is a third party claim, demand, action or proceeding, the amount of any insurance proceeds or other cash receipts paid indemnifying party will have the right, at its own expense, to assume the defense thereof using counsel reasonably acceptable to the Indemnitee or any Affiliate thereof indemnified party, except in the case of a claim that relates to Taxes, as a reimbursement to which Purchaser shall assume the defense, and Seller may, at their sole expense, participate in such defense. The indemnified party shall have the right to participate, at its own expense, with respect to any such Losses (third party claim, demand, action or proceeding. In connection with any such third party claim, demand, action or proceeding, the parties thereto shall cooperate with each other and no right provide each other with access to relevant books and records in their possession. No such third party claim, demand, action or proceeding shall be settled without prior written consent of subrogation shall accrue the indemnified party, provided, however, that if a firm, written offer is made to settle any insurer hereundersuch third party claim, except demand, action or proceeding and the indemnifying party proposes to accept such settlement and the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated indemnified party with respect refuses to consent to such Lossessettlement, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or Seller or their respective Representatives or knowledge by Buyer or Seller or their respective Representatives of a breach of a representation or warranty of the other party shall affect such other party’s representations and warranties or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including ARTICLE VII) with respect thereto. Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VIIthen: (i) no Indemnitor the indemnifying party shall pay such amount to the indemnified party; (ii) the indemnifying party shall be liable for an indemnification claim excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action or proceeding; and (iii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action or proceeding is greater that the amount of the proposed settlement. (b) Any payment made under clause to or on behalf of any indemnified party shall be increased to such amount as will, after taking into account all Taxes imposed with respect to the accrual or receipt of such payment (a) of Section 7.2 or Section 7.3, as the case same may bebe increased pursuant this sentence), unless and until equal the Losses amount of the Buyer Indemnified Partiespayment otherwise due without considering the taxes payable by such party as a result of the accrual or receipt of such payment. (c) Upon payment by an indemnified party to a third party of an amount subject to indemnification, collectively, under clause (a) of Section 7.2 or the Seller Indemnified Parties, collectively, under clause (a) of Section 7.3, as applicable, exceed indemnifying party shall discharge its indemnification obligation by paying to the indemnified party an aggregate amount equal to $25,000 (the “Basket”), in which case amount paid by the applicable Indemnitor shall be obligated indemnified party to the Indemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, required to reach the Basket)third party; provided, however, that Purchaser shall indemnify Xxxxxx X. Xxxxxx for any guarantees executed by said person guaranteeing an obligation of the Basket shall not apply Company. (d) Any payment pursuant to any claims for breaches of any Special Reps; and (ii) no Indemnitor this Article VI shall be liable for an indemnification claim made under Section 7.2 or Section 7.3, as not later than thirty (30) days after receipt by the case may be, to the extent that Losses indemnifying party of the Buyer Indemnified Parties, collectively, under Section 7.2 or the Seller Indemnified Parties, collectively, under Section 7.3, as applicable, exceed an amount equal to the total of the cash portion of the Purchase Price paid in accordance with Section 2.3(a) (as adjusted based on any adjustment after the Closing to the cash portion of the Purchase Price under Section 2.6), plus any obligations under the Note paid as of the date of such claim (the “Indemnification Cap”); provided, that with respect to any claims for breaches of any Special Reps, the Indemnification Cap shall be an amount equal to the Purchase Price. Any indemnification based on claims by a Buyer Indemnified Party which are finally established to be due and payable, shall be paid (i) first by applying such amounts against any obligations under the Note, then (ii) by returning the number of Shares necessary to satisfy such claim (valuing such Shares at the Buyer Common Stock Price) (clause (ii) together with clause (i) is hereinafter referred to as the “Right of Set-Off”) and then (iii) in cash. The amount of any Loss arising written notice from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire indemnified party stating that an indemnifiable amount of any Loss actually incurred by the respective Indemnitee as has been paid to a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. Seller will not have any right to seek contribution from either Company or Buyer with respect to all or any part of Seller’s indemnification obligations under this ARTICLE VII. Buyer will not be required to make any claim against either Company in respect of any representation, warranty, covenant or any other obligation of either Company to Buyer hereunder or under any Ancillary Document to which such Company is a third party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to specifying the Purchase Price for all Tax purposes, amount thereof and no party may take any position inconsistent with such characterizationthe amount of the indemnity payment requested.