Common use of Indemnification of Subscriber Clause in Contracts

Indemnification of Subscriber. Subject to the provisions of this Section 9, the Company will indemnify and hold Subscriber and its directors, officers, shareholders, members, partners, employees and agents (and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title), each person who controls Subscriber (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, an “Subscriber Party”) harmless from any and all losses, liabilities (or actions or proceedings in respect thereof), obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Subscriber Party may suffer or incur as a result of or relating to (i) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Subscription Agreement (provided, that with respect to a registration Event, the liquidated damages provided for therein shall be the sole monetary remedy for Subscriber), (ii) any action instituted against Subscriber in any capacity, or any Subscriber Party or their respective affiliates, by any stockholder of the Company who is not an affiliate of Subscriber seeking indemnification, with respect to any of the transactions contemplated by this Subscription Agreement (unless such action is based upon a breach of Subscriber’s representations, warranties or covenants under this Subscription Agreement or any other agreement with the Company, or any agreements or understandings Subscriber may have with any such stockholder or any violations by Subscriber of state or federal securities laws or any conduct by Subscriber which constitutes fraud, gross negligence, willful misconduct or malfeasance) or (iii) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in the Registration Statement, including all documents filed as a part thereof and information deemed to be a part thereof, on the effective date thereof, or any amendment or supplements thereto, or arising out of any failure of the Company to fulfill any undertaking or covenant included in the Registration Statement or to perform its obligations hereunder or under applicable law except to the extent such statement or alleged statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Subscriber and stated to be specifically for use in preparation of the Registration Statement. Promptly after receipt by any such person (the “Indemnified Person”) of notice of any demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation in respect of which indemnity may be sought pursuant to this Section 9, such Indemnified Person shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses relating to such action, proceeding or investigation; provided, however, that the failure of any Indemnified Person so to notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is actually and materially prejudiced by such failure to notify. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (x) the Company and the Indemnified Person shall have mutually agreed to the retention of such counsel; (y) the Company shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Person in such proceeding; or (z) in the reasonable judgment of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them; provided, however, that in no event shall the Company be liable for the fees and expenses of more than one counsel (together with appropriate local counsel) separate from its own counsel. The Company shall not be liable for any settlement of any proceeding effected without its prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Without the prior written consent of the Indemnified Person, which consent shall not be unreasonably withheld, delayed or conditioned, the Company shall not affect any settlement of any pending or threatened claim or proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement does not include any admission of liability, wrongdoing or misconduct on behalf of such Indemnified Person and includes an unconditional release of such Indemnified Person from all liability arising out of such proceeding.

Indemnification of Subscriber. Subject to the provisions of this Section 9, the Company will The Issuer shall indemnify and hold Subscriber and harmless the Subscriber, its affiliates, the directors, officers, shareholders, members, partners, employees and agents (of the Subscriber and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title)each person, each person if any, who controls Subscriber (within the meaning of Section 15 of the Securities Act and or Section 20 of the Exchange Act), Act from and the directors, officers, shareholders, agents, members, partners or employees (and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, an “Subscriber Party”) harmless from against any and all losses, liabilities claims, liabilities, expenses and damages (including any and all investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any claim, suit, action, proceeding, investigation or actions inquiry (collectively, a “Proceeding”) between any of the indemnified parties and any indemnifying parties or proceedings in respect thereofbetween any indemnified party and any third party, or otherwise, or any claim asserted), obligationsto which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, contingenciesliabilities, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Subscriber Party may suffer expenses or incur as a result damages arise out of or relating to (i) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Subscription Agreement (provided, that with respect to a registration Event, the liquidated damages provided for therein shall be the sole monetary remedy for Subscriber), (ii) any action instituted against Subscriber in any capacity, or any Subscriber Party or their respective affiliates, by any stockholder of the Company who is not an affiliate of Subscriber seeking indemnification, with respect to any of the transactions contemplated by this Subscription Agreement (unless such action is are based upon a breach of Subscriber’s representations, warranties or covenants under this Subscription Agreement or any other agreement with the Company, or any agreements or understandings Subscriber may have with any such stockholder or any violations by Subscriber of state or federal securities laws or any conduct by Subscriber which constitutes fraud, gross negligence, willful misconduct or malfeasance) or (iii) on any untrue statement or alleged untrue statement of a material fact contained in, or the omission or alleged omission to state of a material fact in the Registration Statement, including all documents filed as a part thereof and information deemed required to be a part thereofstated therein or necessary to make the statements therein, on the effective date thereof, or any amendment or supplements thereto, or arising out of any failure in light of the Company to fulfill any undertaking or covenant included circumstances in which such statements were made, not misleading, the Registration Statement or to perform its obligations hereunder or under applicable law except Offering Memorandum (to the extent such statement was derived from the Proxy Statement or alleged statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Subscriber and stated to be specifically for use in preparation of the Registration Statement. Promptly after receipt by any such person (the “Indemnified Person”) of notice of any demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation in respect of which indemnity may be sought pursuant to this Section 9, such Indemnified Person shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses relating to such action, proceeding or investigationSEC Documents); provided, however, that the failure of any Indemnified Person so to notify the Company Issuer shall not relieve the Company of its obligations hereunder except be liable to the extent that the Company such loss, claim, liability, expense or damage is actually based on any untrue statement or omission or alleged untrue statement or omission made in reliance on and materially prejudiced in conformity with information provided by such failure to notifySubscriber. In addition, in the event that the Subscriber becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in this Subscription Agreement or arising out of the matters contemplated by this Subscription Agreement, the Issuer will reimburse the Subscriber for its reasonably incurred and documented legal and other expenses (including the reasonably incurred and documented costs of any investigation and preparation) as such proceedingexpenses are incurred by the Subscriber and promptly following request to the Issuer for reimbursement therefor in connection therewith. If indemnification under this Section 8 is unavailable or insufficient for any reason, any Indemnified Person shall have the right Issuer agrees to retain its own counselcontribute to the losses, but the fees claims, damages, liabilities and expenses of such counsel shall be at the expense of such Indemnified Person unless: involved (x) the Company and the Indemnified Person shall have mutually agreed to the retention of such counsel; (y) the Company shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Person in such proceeding; or (zi) in the reasonable judgment of counsel proportion appropriate to such Indemnified Person, representation of both parties reflect the relative benefits received by the same counsel would be inappropriate due Issuer , on the one hand, and the Subscriber, on the other hand, in connection with the matters contemplated by this Subscription Agreement or (ii) if (but only if and to actual or potential differing interests between them; providedthe extent) the allocation provided for in clause (i) is for any reason held unenforceable, howeverin such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Issuer, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Issuer agrees that in no event shall the Company be liable for the fees purposes of this paragraph the relative benefits received by the Issuer, on the one hand, and expenses the party entitled to contribution, on the other hand, in connection with the matters contemplated by this Subscription Agreement shall be deemed to be in the same proportion that the total value received by the Issuer as a result of more than or in connection with the matters (whether or not consummated) bears to the total consideration received by Nomura under the Subscription Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Issuer or other conduct by the Issuer (or its employees or other agents), on the one counsel (together with appropriate local counsel) separate from its own counselhand, or by the Subscriber, on the other hand. The Company indemnity and contribution rights hereunder shall not be liable for in addition to any settlement of rights that any proceeding effected without its prior written consent, which consent shall not be unreasonably withheld, delayed indemnified party may have at common law or conditioned. Without the prior written consent of the Indemnified Person, which consent shall not be unreasonably withheld, delayed or conditioned, the Company shall not affect any settlement of any pending or threatened claim or proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement does not include any admission of liability, wrongdoing or misconduct on behalf of such Indemnified Person and includes an unconditional release of such Indemnified Person from all liability arising out of such proceedingotherwise.

Indemnification of Subscriber. Subject (a) In consideration of the Subscriber’s execution and delivery of this Subscription Agreement and acquiring the Purchased Shares and the Purchased Warrants hereunder and in addition to all of the other respective obligations of the Corporation under the Transaction Documents to which it is a party, subject to the provisions of this Section 914, the Company will Corporation shall indemnify and hold Subscriber and harmless the Subscriber, each of its directors, officers, shareholders, members, partners, employees employees, representatives, agents and agents advisors (and any other persons Persons with a functionally equivalent role of a person Person holding such titles notwithstanding a the lack of such title or any other title), each person Person, if any, who controls the Subscriber (within the meaning of Section 15 of the Securities Act and or Section 20 20(a) of the Exchange Act), and the respective directors, officers, shareholders, agents, members, partners or employees partners, employees, representatives, agents and advisors (and any other persons Persons with a functionally equivalent role of a person Person holding such titles notwithstanding a the lack of such title or any other title) of such controlling persons Persons (each, an a “Subscriber Party”) harmless ), from any and against all losses, liabilities (or actions or proceedings in respect thereof)liabilities, obligations, claims, contingencies, damages, costs and expenses, expenses (including all judgments, amounts paid in settlementssettlement, court costs and costs, reasonable attorneys’ fees and costs of investigation defense and investigation) (collectively, “Damages”) that any such Subscriber Party may suffer or incur as a result of or relating to (ia) any breach of any of the representations, warranties, covenants or agreements made by the Company Corporation in this Subscription Agreement or in the other Transaction Documents to which it is a party or (provided, that with respect to a registration Event, the liquidated damages provided for therein shall be the sole monetary remedy for Subscriber), (iib) any action, suit, claim or proceeding (including for these purposes a derivative action brought on behalf of the Corporation) instituted against Subscriber in any capacity, or any such Subscriber Party or their respective affiliates, by any stockholder of the Company who is not an affiliate of Subscriber seeking indemnification, with respect to any of the transactions contemplated by this Subscription Agreement (unless such action is based upon a breach of Subscriber’s representations, warranties or covenants under this Subscription Agreement or any other agreement with the Company, or any agreements or understandings Subscriber may have with any such stockholder or any violations by Subscriber of state or federal securities laws or any conduct by Subscriber which constitutes fraud, gross negligence, willful misconduct or malfeasance) or (iii) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in the Registration Statement, including all documents filed as a part thereof and information deemed to be a part thereof, on the effective date thereof, or any amendment or supplements thereto, or arising out of any failure or resulting from the execution, delivery, performance or enforcement of the Company to fulfill any undertaking or covenant included in Transaction Documents, other than claims for indemnification within the Registration Statement or to perform its obligations hereunder or under applicable law except to the extent such statement or alleged statement in reliance upon and in conformity with written information furnished to the Company by or on behalf scope of such Subscriber and stated to be specifically for use in preparation Section 2.8 of the Registration Statement. Promptly after receipt by any such person (the “Indemnified Person”) of notice of any demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation in respect of which indemnity may be sought pursuant to this Section 9, such Indemnified Person shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses relating to such action, proceeding or investigationInvestor Rights Agreement; provided, however, that (x) the failure of any Indemnified Person so to notify the Company foregoing indemnity shall not relieve apply to any Damages to the Company extent, but only to the extent, that such Damages resulted directly and primarily from any acts or failures to act, undertaken or omitted to be taken by such Subscriber Party through its fraud, bad faith, gross negligence, or willful or reckless misconduct. (b) The Corporation shall reimburse any Subscriber Party promptly upon demand (with accompanying presentation of documentary evidence) for all legal and other costs and expenses reasonably incurred by such Subscriber Party in connection with (i) any action, suit, claim or proceeding, whether at law or in equity, to enforce compliance by the Corporation with any provision of the Transaction Documents to which it is a party or (ii) any other any action, suit, claim or proceeding, whether at law or in equity, with respect to which it is entitled to indemnification under this Section 14; provided that the Subscriber shall promptly reimburse the Corporation for all such legal and other costs and expenses to the extent a court of competent jurisdiction determines that any Subscriber Party was not entitled to such reimbursement. (c) A Subscriber Party’s right to indemnification or other remedies based upon the representations, warranties, covenants and agreements of the Corporation set forth in the Transaction Documents to which it is a party shall not in any way be affected by any investigation or knowledge of such Subscriber Party. Such representations, warranties, covenants and agreements shall not be affected or deemed waived by reason of the fact that a Subscriber Party knew or should have known that any representation or warranty might be inaccurate or that the Corporation failed to comply with any agreement or covenant. Any investigation by such Subscriber Party shall be for its obligations hereunder except to own protection only and shall not affect or impair any right or remedy hereunder. (d) To the extent that the Company is actually foregoing joint and materially prejudiced several undertakings by such failure to notify. In the Corporation set forth in this Section 14 may be unenforceable for any such proceedingreason, any Indemnified Person the Corporation shall have make the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (x) the Company and the Indemnified Person shall have mutually agreed maximum contribution to the retention payment and satisfaction of such counsel; (y) the Company shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Person in such proceeding; or (z) in the reasonable judgment of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them; provided, however, that in no event shall the Company be liable for the fees and expenses of more than one counsel (together with appropriate local counsel) separate from its own counsel. The Company shall not be liable for any settlement of any proceeding effected without its prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Without the prior written consent each of the Indemnified Person, Damages which consent shall not be unreasonably withheld, delayed or conditioned, the Company shall not affect any settlement of any pending or threatened claim or proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement does not include any admission of liability, wrongdoing or misconduct on behalf of such Indemnified Person and includes an unconditional release of such Indemnified Person from all liability arising out of such proceedingpermissible under Applicable Law.

Indemnification of Subscriber. Subject to the provisions of this Section 95, the Company will indemnify and hold the Subscriber and its directors, officers, shareholders, members, partners, employees and agents (and any other persons Persons with a functionally equivalent role of a person Person holding such titles notwithstanding a lack of such title or any other title), each person Person who controls such Subscriber (within the meaning of Section 15 of the Securities 1933 Act and Section 20 of the Exchange 1934 Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other persons Persons with a functionally equivalent role of a person Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, an a “Subscriber Party”) harmless from any and all losses, liabilities (or actions or proceedings in respect thereof)liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Subscriber Party may suffer or incur as a result of or relating to (ia) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Subscription Agreement or in the other Transaction Documents or (provided, that with respect to a registration Event, the liquidated damages provided for therein shall be the sole monetary remedy for Subscriber), (iib) any action instituted against the Subscriber Parties in any capacity, or any Subscriber Party of them or their respective affiliatesAffiliates, by any stockholder of the Company who is not an affiliate Affiliate of such Subscriber seeking indemnificationParty, with respect to any of the transactions contemplated by this Subscription Agreement the Transaction Documents (unless such action is solely based upon a material breach of Subscribersuch Subscriber Party’s representations, warranties or covenants under this Subscription Agreement or any other agreement with the Company, Transaction Documents or any agreements or understandings such Subscriber Party may have with any such stockholder or any violations by such Subscriber Party of state or federal securities laws or any conduct by such Subscriber Party which constitutes is finally judicially determined to constitute fraud, gross negligence, negligence or willful misconduct or malfeasance) or (iii) misconduct). If any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in the Registration Statement, including all documents filed as a part thereof and information deemed to action shall be a part thereof, on the effective date thereof, or brought against any amendment or supplements thereto, or arising out of any failure of the Company to fulfill any undertaking or covenant included in the Registration Statement or to perform its obligations hereunder or under applicable law except to the extent such statement or alleged statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Subscriber and stated to be specifically for use in preparation of the Registration Statement. Promptly after receipt by any such person (the “Indemnified Person”) of notice of any demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation Party in respect of which indemnity may be sought pursuant to this Section 9Agreement, such Indemnified Person Subscriber Party shall promptly notify the Company in writing writing, and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses relating to such action, proceeding or investigation; provided, however, that the failure of any Indemnified Person so to notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is actually and materially prejudiced by such failure to notify. In any such proceeding, any Indemnified Person shall have the right to retain assume the defense thereof with counsel of its own counselchoosing reasonably acceptable to the Subscriber Party. Any Subscriber Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: Subscriber Party except to the extent that (xi) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the Indemnified Person shall have mutually agreed to the retention position of such Subscriber Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel; . The Company will not be liable to any Subscriber Party under this Agreement (y) for any settlement by a Subscriber Party effected without the Company Company’s prior written consent, which shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Person in such proceedingnot be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Subscriber Party’s breach of any of the representations, warranties, covenants or agreements made by such Subscriber Party in this Agreement or in the reasonable judgment other Transaction Documents. The indemnification required by this Section 5 shall be made by periodic payments of counsel the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to such Indemnified Person, representation any cause of both parties by the same counsel would be inappropriate due to actual action or potential differing interests between them; provided, however, that in no event shall similar right of any Subscriber Party against the Company be liable for the fees or others and expenses of more than one counsel (together with appropriate local counsel) separate from its own counsel. The Company shall not be liable for any settlement of any proceeding effected without its prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Without the prior written consent of the Indemnified Person, which consent shall not be unreasonably withheld, delayed or conditioned, liabilities the Company shall not affect any settlement of any pending or threatened claim or proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement does not include any admission of liability, wrongdoing or misconduct on behalf of such Indemnified Person and includes an unconditional release of such Indemnified Person from all liability arising out of such proceedingmay be subject to pursuant to law.

Indemnification of Subscriber. Subject to the provisions of this Section 9Section, the Company will indemnify and hold the Subscriber and its their directors, officers, shareholders, members, partners, employees and agents (and any other persons Persons with a functionally equivalent role of a person Person holding such titles notwithstanding a lack of such title or any other title), each person Person who controls Subscriber (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other persons Persons with a functionally equivalent role of a person Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, an a “Subscriber Party”) harmless from any and all losses, liabilities (or actions or proceedings in respect thereof)liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such the Subscriber Party may suffer or incur as a result of or relating to (ia) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Subscription Agreement or in the other Transaction Documents or (provided, that with respect to a registration Event, the liquidated damages provided for therein shall be the sole monetary remedy for Subscriber), (iib) any action instituted against Subscriber Parties in any capacity, or any Subscriber Party of them or their respective affiliatesAffiliates, by any stockholder of the Company who is not an affiliate Affiliate of Subscriber seeking indemnificationParty, with respect to any of the transactions contemplated by this Subscription Agreement the Transaction Documents (unless such action is based upon a breach of SubscriberSubscriber Party’s representations, warranties or covenants under this Subscription Agreement or any other agreement with the Company, Transaction Documents or any agreements or understandings Subscriber Party may have with any such stockholder or any violations by such Subscriber Party of state or federal securities laws or any conduct by Subscriber Party which constitutes fraud, gross negligence, willful misconduct or malfeasance) or (iii) ). If any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in action shall be brought against the Registration Statement, including all documents filed as a part thereof and information deemed to be a part thereof, on the effective date thereof, or any amendment or supplements thereto, or arising out of any failure of the Company to fulfill any undertaking or covenant included in the Registration Statement or to perform its obligations hereunder or under applicable law except to the extent such statement or alleged statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Subscriber and stated to be specifically for use in preparation of the Registration Statement. Promptly after receipt by any such person (the “Indemnified Person”) of notice of any demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation Party in respect of which indemnity may be sought pursuant to this Section 9Agreement, such Indemnified Person Subscriber Party shall promptly notify the Company in writing writing, and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses relating to such action, proceeding or investigation; provided, however, that the failure of any Indemnified Person so to notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is actually and materially prejudiced by such failure to notify. In any such proceeding, any Indemnified Person shall have the right to retain assume the defense thereof with counsel of its own counselchoosing reasonably acceptable to the Subscriber Party. The Subscriber Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Subscriber Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such Indemnified Person unless: defense and to employ counsel or (xiii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the Indemnified Person position of Subscriber Party, in which case the Company shall have mutually agreed be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to the retention of such counsel; Subscriber Party under this Agreement (y) for any settlement by the Company Subscriber Party effected without the Company’s prior written consent, which shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Person in such proceedingnot be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to the Subscriber Party’s breach of its representations, warranties or covenants under the Transaction Documents. The indemnification required by this Section shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of the reasonable judgment of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them; provided, however, that in no event shall Subscriber Party against the Company be liable for the fees or others and expenses of more than one counsel (together with appropriate local counsel) separate from its own counsel. The Company shall not be liable for any settlement of any proceeding effected without its prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Without the prior written consent of the Indemnified Person, which consent shall not be unreasonably withheld, delayed or conditioned, liabilities the Company shall not affect any settlement of any pending or threatened claim or proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement does not include any admission of liability, wrongdoing or misconduct on behalf of such Indemnified Person and includes an unconditional release of such Indemnified Person from all liability arising out of such proceedingmay be subject to pursuant to law.

Indemnification of Subscriber. Subject (a) In consideration of the Subscriber’s execution and delivery of this Subscription Agreement and acquiring the Purchased Shares hereunder and in addition to all of the other respective obligations of the Corporation under the Transaction Documents to which it is a party, subject to the provisions of this Section 913, the Company will Corporation shall indemnify and hold Subscriber and harmless the Subscriber, each of its directors, officers, shareholders, members, partners, employees employees, representatives, agents and agents advisors (and any other persons Persons with a functionally equivalent role of a person Person holding such titles notwithstanding a the lack of such title or any other title), each person Person, if any, who controls the Subscriber (within the meaning of Section 15 of the Securities Act and or Section 20 20(a) of the Exchange Act), and the respective directors, officers, shareholders, agents, members, partners or employees partners, employees, representatives, agents and advisors (and any other persons Persons with a functionally equivalent role of a person Person holding such titles notwithstanding a the lack of such title or any other title) of such controlling persons Persons (each, an a “Subscriber Party”) harmless ), from any and against all losses, liabilities (or actions or proceedings in respect thereof)liabilities, obligations, claims, contingencies, damages, costs and expenses, expenses (including all judgments, amounts paid in settlementssettlement, court costs and costs, reasonable attorneys’ fees and costs of investigation defense and investigation) (collectively, “Damages”) that any such Subscriber Party may suffer or incur as a result of or relating to (ia) any breach of any of the representations, warranties, covenants or agreements made by the Company Corporation in this Subscription Agreement or in the other Transaction Documents to which it is a party or (provided, that with respect to a registration Event, the liquidated damages provided for therein shall be the sole monetary remedy for Subscriber), (iib) any action, suit, claim or proceeding (including for these purposes a derivative action brought on behalf of the Corporation) instituted against Subscriber in any capacity, or any such Subscriber Party or their respective affiliates, by any stockholder of the Company who is not an affiliate of Subscriber seeking indemnification, with respect to any of the transactions contemplated by this Subscription Agreement (unless such action is based upon a breach of Subscriber’s representations, warranties or covenants under this Subscription Agreement or any other agreement with the Company, or any agreements or understandings Subscriber may have with any such stockholder or any violations by Subscriber of state or federal securities laws or any conduct by Subscriber which constitutes fraud, gross negligence, willful misconduct or malfeasance) or (iii) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in the Registration Statement, including all documents filed as a part thereof and information deemed to be a part thereof, on the effective date thereof, or any amendment or supplements thereto, or arising out of any failure or resulting from the execution, delivery, performance or enforcement of the Company to fulfill any undertaking or covenant included in Transaction Documents, other than claims for indemnification within the Registration Statement or to perform its obligations hereunder or under applicable law except to the extent such statement or alleged statement in reliance upon and in conformity with written information furnished to the Company by or on behalf scope of such Subscriber and stated to be specifically for use in preparation Section 2.8 of the Registration Statement. Promptly after receipt by any such person (the “Indemnified Person”) of notice of any demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation in respect of which indemnity may be sought pursuant to this Section 9, such Indemnified Person shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses relating to such action, proceeding or investigationInvestor Rights Agreement; provided, however, that (x) the failure of any Indemnified Person so to notify the Company foregoing indemnity shall not relieve apply to any Damages to the Company extent, but only to the extent, that such Damages resulted directly and primarily from any acts or failures to act, undertaken or omitted to be taken by such Subscriber Party through its fraud, bad faith, gross negligence, or willful or reckless misconduct. (b) The Corporation shall reimburse any Subscriber Party promptly upon demand (with accompanying presentation of documentary evidence) for all legal and other costs and expenses reasonably incurred by such Subscriber Party in connection with (i) any action, suit, claim or proceeding, whether at law or in equity, to enforce compliance by the Corporation with any provision of the Transaction Documents to which it is a party or (ii) any other any action, suit, claim or proceeding, whether at law or in equity, with respect to which it is entitled to indemnification under this Section 13; provided that the Subscriber shall promptly reimburse the Corporation for all such legal and other costs and expenses to the extent a court of competent jurisdiction determines that any Subscriber Party was not entitled to such reimbursement. (c) A Subscriber Party’s right to indemnification or other remedies based upon the representations, warranties, covenants and agreements of the Corporation set forth in the Transaction Documents to which it is a party shall not in any way be affected by any investigation or knowledge of such Subscriber Party. Such representations, warranties, covenants and agreements shall not be affected or deemed waived by reason of the fact that a Subscriber Party knew or should have known that any representation or warranty might be inaccurate or that the Corporation failed to comply with any agreement or covenant. Any investigation by such Subscriber Party shall be for its obligations hereunder except to own protection only and shall not affect or impair any right or remedy hereunder. (d) To the extent that the Company is actually foregoing joint and materially prejudiced several undertakings by such failure to notify. In the Corporation set forth in this Section 13 may be unenforceable for any such proceedingreason, any Indemnified Person the Corporation shall have make the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (x) the Company and the Indemnified Person shall have mutually agreed maximum contribution to the retention payment and satisfaction of such counsel; (y) the Company shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Person in such proceeding; or (z) in the reasonable judgment of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them; provided, however, that in no event shall the Company be liable for the fees and expenses of more than one counsel (together with appropriate local counsel) separate from its own counsel. The Company shall not be liable for any settlement of any proceeding effected without its prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Without the prior written consent each of the Indemnified Person, Damages which consent shall not be unreasonably withheld, delayed or conditioned, the Company shall not affect any settlement of any pending or threatened claim or proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement does not include any admission of liability, wrongdoing or misconduct on behalf of such Indemnified Person and includes an unconditional release of such Indemnified Person from all liability arising out of such proceedingpermissible under Applicable Law.