Common use of Indemnification Procedure for Third Party Claims Clause in Contracts

Indemnification Procedure for Third Party Claims. (a) Other than in respect of Taxes, which shall be governed by Section 6.7, in the event that any claim or demand, or other circumstance or state of facts that would reasonably be expected to give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected, in each case, in writing, by a third party (“Third-Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) days following such Indemnitee’s receipt or knowledge of a Third-Party Claim, notify the Indemnitor in writing of such Third-Party Claim (“Notice of Claim”); provided, however, that a failure by an Indemnitee to provide timely notice consistent with the requirements of this Section 9.4(a) shall not affect the rights or obligations of such Indemnitee except to the extent such failure results in material prejudice to the Indemnifying Party with respect to such Third-Party Claim. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement (if applicable) and (ii) specify in reasonable detail each individual item of Loss included in the amount so stated (taking into account the information then known to the Indemnitee), the date such item was paid or properly accrued (if applicable), the basis for any anticipated Loss and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Party Claim, if any, and any other available documents evidencing such Third-Party Claim. (b) The Indemnitor shall have the right, but not the obligation, upon notice delivered to the Indemnified Party, to assume the defense or prosecution of such Third-Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Party Defense”); provided that the Indemnitor shall not be entitled to undertake a Third-Party Defense, and the Indemnitor shall pay the fees and expenses of counsel retained by the Indemnitee in connection therewith, if (A) the claim or demand relates to or arises in connection with any criminal Legal Proceeding, indictment or allegation or regulatory enforcement action, (B) the claim or demand seeks an injunction or equitable relief against the Indemnitee or any of its Related Parties or (C) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party. If the Indemnitor assumes the Third-Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-counsel at its sole cost and expense (subject to the below) and participate in the defense of the Third-Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof, (ii) the Indemnitee will not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnitor, and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim to the extent such judgment or settlement (x) provides for equitable or other non-monetary relief, (y) does not contain a full and unconditional release of liability for the Indemnitee or (z) contains an admission of fault, breach, violation or liability, in each case, without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed). The Parties will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third-Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent. (c) If the Indemnitor does not assume the Third-Party Defense, the Indemnitee will be entitled to assume the Third-Party Defense at the expense of the Indemnitor upon delivery of notice to such effect to the Indemnitor; provided, however, that the (i) Indemnitor shall have the right to participate in the Third-Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; and (ii) the Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (except where such consent was unreasonably withheld, conditioned or delayed).

Indemnification Procedure for Third Party Claims. (a) Other than in respect of Taxes, which shall be governed by Section 6.7, in In the event that any claim or demand, or other circumstance or state of facts that would reasonably be expected to could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected, in each case, in writing, by a third party (“Third-Third Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) 30 days following such Indemnitee’s receipt or knowledge of a Third-Third Party Claim, notify the Indemnitor in writing of such Third-Third Party Claim (“Notice of Claim”); provided, however, that a failure by an Indemnitee to provide timely notice consistent with the requirements of this Section 9.4(a) shall not affect the rights or obligations of such Indemnitee except to other than if the extent Indemnitor shall have been actually prejudiced as a result of such failure results in material prejudice to the Indemnifying Party with respect to such Third-Party Claimfailure. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement (if applicable) and (ii) specify in reasonable detail each individual item of Loss included in the amount so stated (taking into account the information then known to the Indemnitee)stated, the date such item was paid or properly accrued (if applicable)accrued, the basis for any anticipated Loss and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Third Party Claim, if any, and any other available documents evidencing such Third-Third Party Claim. (b) The Indemnitor shall have the right, but not the obligation, upon notice delivered to the Indemnified Party, to assume the defense or prosecution of such Third-Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Party Defense”); provided that the Indemnitor shall not be entitled to undertake a Third-Party Defense, and the Indemnitor shall pay the fees and expenses of counsel retained by the Indemnitee in connection therewith, if (A) the claim or demand relates to or arises in connection with any criminal Legal Proceeding, indictment or allegation or regulatory enforcement action, (B) the claim or demand seeks an injunction or equitable relief against the Indemnitee or any of its Related Parties or (C) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party. If the Indemnitor assumes the Third-Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-counsel at its sole cost and expense (subject to the below) and participate in the defense of the Third-Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof, (ii) the Indemnitee will not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnitor, and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim to the extent such judgment or settlement (x) provides for equitable or other non-monetary relief, (y) does not contain a full and unconditional release of liability for the Indemnitee or (z) contains an admission of fault, breach, violation or liability, in each case, without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed). The Parties will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third-Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent. (c) If the Indemnitor does not assume the Third-Party Defense, the Indemnitee will be entitled to assume the Third-Party Defense at the expense of the Indemnitor upon delivery of notice to such effect to the Indemnitor; provided, however, that the (i) Indemnitor shall have the right to participate in the Third-Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; and (ii) the Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (except where such consent was unreasonably withheld, conditioned or delayed).

Indemnification Procedure for Third Party Claims. (a) Other than in respect of Taxes, which shall be governed by Section 6.7, in In the event that any claim or demand, or other circumstance or state of facts that would reasonably be expected to which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder (each, a “Claim”) is asserted or sought to be collected, in each case, in writing, collected by a third party (“Third-Third Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) days following such Indemnitee’s receipt or knowledge of a Third-Party Claim, as soon as practicable notify the Indemnitor in writing of such Third-Third Party Claim (“Notice of Claim”); provided, however, that a the failure by an of any Indemnitee to provide timely give notice consistent with the requirements of as provided in this Section 9.4(a) shall not affect relieve the rights or Indemnitor of its obligations of such Indemnitee under this Article IX, except to the extent that such failure results in material prejudice Indemnitor’s ability to the Indemnifying Party remedy, contest, defend or settle with respect to such Third-Third Party ClaimClaim is materially prejudiced by such failure or delay to give notice. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability Liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement (if applicable) and (ii) to the extent ascertainable, specify in reasonable detail each individual item of Loss included in the amount so stated (taking into account the information then known to the Indemnitee)stated, the date such item was paid or properly accrued (if applicable)accrued, the basis for any anticipated Loss Liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Third Party Claim, if any, and any other available documents evidencing such Third-Third Party Claim; provided, however, that any confidential or privileged materials shall not be disclosed by the Indemnitee other than as needed for the defense of the Third Party Claim, and the Indemnitor agrees to enter into a commercially reasonable confidentiality and non-use agreement with the Indemnitee with respect to such information. (b) The Indemnitor shall have 45 days from the right, but not date on which the obligation, upon notice delivered Indemnitor received the Notice of Claim to notify the Indemnified Party, Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third-Third Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Third Party Defense”); provided that . 84 Notwithstanding the foregoing, the Indemnitor shall not be entitled permitted to undertake a Third-assume the Third Party Defense, and the Indemnitor shall pay the fees and expenses of counsel retained by the Indemnitee in connection therewith, if Defense if: (A) upon petition by the claim Indemnitee, the appropriate court determines that the Indemnitor failed or demand relates is failing to vigorously prosecute or arises in connection with any criminal Legal Proceeding, indictment or allegation or regulatory enforcement actiondefend such Third Party Claim, (B) the claim Third Party Claim is in respect of any matter involving criminal liability or demand asserts fraud of the Indemnitee, (C) the matter that is the subject of the Third Party Claim seeks as the primary cause of action the imposition of an injunction equitable or equitable relief injunctive remedy against the Indemnitee or any of its Related Parties Affiliates, (D) the Third Party Claim seeks damages in excess of the amount for which the Indemnitor may be liable under this Agreement, (E) the Third Party Claim involves any Governmental Entity as a party thereto, or (CF) there are legal defenses available the Indemnitor fails to provide reasonable assurance to the Indemnified Indemnitee of its financial capacity to defend such Third Party that are different from or additional to those available to the Indemnifying PartyClaim. If the Indemnitor assumes the Third-Third Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-counsel at its sole cost and expense (subject to the below) and participate in the defense of the Third-Third Party Claim, Claim but the Indemnitor shall control the investigation, defense and settlement thereof, provided that the Indemnitee shall be entitled to participate in the defense of such Third Party Claim with separate counsel at the expense of the Indemnitor if, in the reasonable opinion of counsel to the Indemnitee, a conflict exists on a material issue between the Indemnitee and the Indemnitor that would make such separate representation advisable, (ii) the Indemnitee will shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnitor, Indemnitor and (iii) the Indemnitor will shall not consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim to the extent such judgment or settlement (x) provides for equitable or other non-monetary relief, (y) does not contain involves a full and unconditional release finding or admission of liability for any violation of Law or suggestion of any wrongdoing on behalf of the Indemnitee Indemnitee, or (z) contains an admission of faultdoes not fully and unconditionally release the Indemnitee from liability with respect to such Third Party Claim, breach, violation or liabilitywithout prejudice, in each case, case without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed)Indemnitee. The Parties shall use commercially reasonable efforts to minimize Losses from Third Party Claims and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will shall also cooperate in any such defense and give each other reasonable access to all information relevant thereto; provided, however, that no Party shall be required to disclose any confidential or privileged materials other than as needed for the defense of the Third Party Claim, and the receiving Party agrees to enter into a commercially reasonable confidentiality and non-use agreement with the disclosing Party with respect to such information. Whether or not the Indemnitor has assumed the Third-Third Party Defense, such Indemnitor will shall not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent. (c) If the Indemnitor does not or is not entitled to assume the Third-Third Party DefenseDefense within 45 days of receipt of the Notice of Claim, the Indemnitee will be entitled to assume the Third-Third Party Defense Defense, at the expense of the Indemnitor (subject to the applicable limitations on Losses herein), upon delivery of notice to such effect to the Indemnitor; provided, however, provided that the (i) Indemnitor shall have the right to participate in the Third-Third Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; and , (ii) the Indemnitee shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor will (which consent shall not be unreasonably withheld or delayed), and (iii) the Indemnitor shall not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (except where such consent was unreasonably withheld, conditioned or delayed)consent.

Indemnification Procedure for Third Party Claims. (a) Other than in respect of Taxes, which shall be governed by Section 6.7, in In the event that any claim or demand, or other circumstance or state of facts that would reasonably be expected to which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected, in each case, in writing, collected by a third party (“Third-Third Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) days following such Indemnitee’s receipt or knowledge of a Third-Party Claim, as soon as practicable notify the Indemnitor in writing of such Third-Third Party Claim (“Notice of Claim”); provided, however, that a failure by an Indemnitee to provide timely notice consistent with the requirements of this Section 9.4(a) shall not affect the rights or obligations of such Indemnitee except to the extent such failure results in material prejudice to the Indemnifying Party with respect to such Third-Party Claim. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement (if applicable) Agreement, and (ii) specify in reasonable detail each individual item of Loss included in the amount so stated (taking into account the information then known to the Indemnitee)stated, the date such item was paid or properly accrued (if applicable)accrued, the basis for any anticipated Loss liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Third Party Claim, if any, and any other available documents evidencing such Third-Third Party Claim. Failure to give notice in accordance with the foregoing shall not affect the Indemnitor’s obligations hereunder, except to the extent the Indemnitor is prejudiced by such failure. (b) The Indemnitor shall have the right, but not the obligation, upon notice delivered Subject to anything in this Section 10.4(b) to the Indemnified Partycontrary, the Indemnitor will have thirty (30) days from the date on which the Indemnitor received the Notice of Claim to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third-Third Party Claim and any litigation resulting therefrom therefrom, with counsel of its choice and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Party Third party Defense”); provided , provided, that the Indemnitor Indemnitee shall not in any event be entitled to undertake a Thirdtake such actions as are reasonably necessary to avoid prejudicing the Indemnitee’ s right with respect to such Third party Claim during such 30-Party Defense, and day period while it awaits notice from the Indemnitor shall pay the fees and expenses of counsel retained by the Indemnitee in connection therewith, if (A) the claim or demand relates to or arises in connection with any criminal Legal Proceeding, indictment or allegation or regulatory enforcement action, (B) the claim or demand seeks an injunction or equitable relief against the Indemnitee or any of its Related Parties or (C) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying PartyIndemnitor. If the Indemnitor assumes the Third-Third Party Defense in accordance herewith, (i) the Indemnitor will be deemed to have waived its right to dispute its liability to the Indemnitee with respect to any Third party Claim as to which it elects to control the defense, (ii) the Indemnitee may retain separate co-counsel at its sole cost and expense (subject to the below) and participate in the defense of the Third-Third Party Claim, except that the Indemnitor will pay the reasonable costs and expenses of separate counsel if (A) in the Indemnitee’s good faith judgment, it is advisable, based on an opinion of counsel, for the Indemnitee to be represented by separate counsel because a conflict or potential conflict exists between the Indemnitee and the Indemnitor or (B) the named parties to such Third Party Claim include both the Indemnitee and the Indemnitor and the Indemnitee determines in good faith, based on any opinion of counsel, that defenses which could materially affect the outcome of the Third Party Claim are available to it that are unavailable to the Indemnitor, but the Indemnitor shall control the investigation, defense and settlement thereof, (iiiii) the Indemnitee will not file any papers or consent consents to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably delayed or withheld and (iiiiv) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim to the extent such judgment or settlement (x) provides for equitable or other non-monetary relief, (y) does not contain a full and unconditional release of liability for the Indemnitee or (z) contains an admission of fault, breach, violation or liability, in each case, relief without the prior written consent of the Indemnitee (Indemnitee, which consent shall not to be unreasonably delayed or withheld. Notwithstanding the foregoing, conditioned the Indemnitee may retain or delayed)take over the control of the defense or settlement of any Third Party Claim, at any point in time, the defense of which the Indemnitor has elected to control if the Indemnitee irrevocably waives its right to indemnity under this Article X with respect to such Third Party Claim. The Parties will use commercially reasonable efforts to minimize Losses from Third Party Claims and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third-Third Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent. (c) If the Indemnitor does not assume the Third-Party Defense, the Indemnitee will be entitled to assume the Third-Party Defense at the expense of the Indemnitor upon delivery of notice to such effect to the Indemnitor; provided, however, that the (i) Indemnitor shall have the right to participate in the Third-Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; and (ii) the Indemnitor will not be obligated to indemnify indemnity the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (except where which consent shall not be unreasonably delayed or withheld) or in the event the Indemnitee irrevocably waives its right to indemnity under this Article X with respect to such Third Party Claim. Notwithstanding the foregoing, Seller may elect to control, at its own expense, the conduct of any audit or administrative or judicial proceeding with respect to any Taxes of, or any Tax Return required to be filed by or with respect to, the Company with respect to any Seller Taxes (other than Taxes of the Company in respect of a Straddle Period or any Buyer Transfer Taxes) if Seller acknowledges in writing that Seller has sole responsibility for any Seller Taxes that arise in such audit or proceeding that is controlled by Seller, provided, however, that Seller shall not resolve, abandon, compromise or settle any such audit or proceeding without obtaining Buyer’s prior written consent was (which consent may not be unreasonably withheld, conditioned or delayed)) if it would reasonably be expected to have a materially adverse effect on Buyer, the Company or any Affiliate thereof with respect to any Tax Period ending after the Closing Date; provided further, however, that (i) Seller shall keep Buyer reasonably apprised of the status of the audit or proceeding, and (ii) Buyer shall have the right, at its own expense, to retain separate counsel and to reasonably participate in (but not control) such Tax audit or proceeding. Buyer shall control, at its own expense, the conduct of any audit or administrative or judicial proceeding with respect to any Taxes of, or any Tax Return required to be filed by or with respect to, the Company with respect to any Straddle Period; provided, however, that Buyer shall not resolve, abandon, compromise or settle any such audit or proceeding without obtaining Seller’s prior written consent (which consent may not be unreasonably withheld, conditioned or delayed) if it would reasonably be expected to have a materially adverse effect on Seller, the Company or any Affiliate thereof with respect to any Pre-Closing Tax Period; provide further, however, that (i) Buyer shall keep Seller reasonably apprised of the status of the audit or proceeding, and (ii) Seller shall have the right, at its own expense, to retain separate counsel and to reasonably participate in (but not control) such Tax audit or proceeding. (c) If the Indemnitor does not assume the Third Party Defense within thirty (30) days of receipt of the Notice of Claim, or if the Indemnitor fails to prosecute diligently the Third Party Claim, the Indemnitee will be entitled to assume the Third Party Defense, at its sole cost and expense (or, if the Indemnitee incurs a Loss with respect to the matter in question for which the Indemnitee is entitled to indemnification pursuant to section 10.2 or 10.3, as applicable, at the expense of the Indemnitor) upon delivery of notice to such effect to the Indemnitor; provided that (i) the Indemnitor shall have the right to participate in the Third Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof, and (ii) in no event will the Indemnitee consent to the entry of any judgment or enter into any settlement with respect to a Third Party Claim without the Indemnitor’s prior written consent, which consent will not be unreasonably delayed or withheld.

Indemnification Procedure for Third Party Claims. (a) Other than in respect of Taxes, which shall be governed by Section 6.7, in In the event that any claim or demand, or other circumstance or state of facts that would reasonably be expected to could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder under this Agreement (for the avoidance of doubt, excluding any Tax Claim), is asserted or sought to be collected, in each case, in writing, collected by a third party Person or Government Entity who is not a Party or an Affiliate thereof (a “Third-Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) days following such Indemnitee’s receipt or knowledge of a Third-Party Claim, notify the Indemnitor in writing of such Third-Party Claim (a “Notice of Claim”)) as promptly as practicable; provided, however, that a failure or delay by an Indemnitee to provide timely notice consistent with the requirements a Notice of this Section 9.4(a) Claim as promptly as practicable shall not affect the rights or obligations of such Indemnitee except to unless the extent Indemnitor shall have been materially prejudiced as a result of such failure results in material prejudice to the Indemnifying Party with respect to such Third-Party Claimor delay. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement (if applicable) Agreement, and (ii) specify in reasonable detail detail, as applicable, each individual item of Loss included in the amount so stated (taking into account the information then known to the Indemnitee)stated, the date such item was paid or properly accrued (if applicable)accrued, the basis for any anticipated Loss and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled hereunderunder this Agreement. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Party Claim, if any, and any other available documents evidencing such Third-Party Claim. The Indemnitee will reasonably cooperate and assist the Indemnitor in determining the validity of any claim for indemnity by the Indemnitee and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to, and copies of, information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters subject the confidentiality obligations set forth in Section 4.05. (b) The Indemnitor shall have the right, but not the obligation, upon notice delivered to the Indemnified Party, to assume the defense or prosecution of such Third-Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Party Defense”); provided ) by providing written notice of such assumption to the Indemnitee within sixty (60) days following delivery of the Notice of Claim provided, that counsel for the Indemnitor who shall not be entitled to undertake a conduct the Third-Party Defense, and the Indemnitor Defense shall pay the fees and expenses of counsel retained by the Indemnitee in connection therewith, if (A) the claim or demand relates to or arises in connection with any criminal Legal Proceeding, indictment or allegation or regulatory enforcement action, (B) the claim or demand seeks an injunction or equitable relief against the Indemnitee or any of its Related Parties or (C) there are legal defenses available be reasonably satisfactory to the Indemnified Party that are different from or additional to those available to the Indemnifying PartyIndemnitee. If the Indemnitor assumes the Third-Third- Party Defense in accordance herewithwith this Agreement, (i) the Indemnitee may retain separate co-counsel cocounsel at its sole cost and expense (subject to the below) and participate in the defense of the Third-Party Claim, but the Indemnitor 114399-0014/143865664.11 shall control the investigation, defense and settlement thereof, (ii) the Indemnitee will not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnitor, and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim to the extent such judgment or settlement (x) provides for equitable or other non-monetary relief, (y) does not contain a full and unconditional release of liability for the Indemnitee or (z) contains an admission of fault, breach, violation or liability, in each case, relief without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed)Indemnitee. The Parties will use their commercially reasonable efforts to minimize Losses from Third-Party Claims to the extent required by, and in accordance with, applicable Law, and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant theretothereto subject to the confidentiality obligations as set forth in Section 4.05. Whether or not the Indemnitor has assumed the Third-Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consentconsent shall not be determinative of the amount of Losses relating to such matter. (c) In the event that the Indemnitee shall in good faith determine that with respect to any Third-Party Claim subject to indemnification hereunder or any proposed settlement of any such Third-Party Claim that such Third-Party Claim may impair any Permits that Indemnitee requires to serve as a federally registered investment adviser, broker-dealer/principal underwriter for mutual funds, or commodity pool operator or to be registered as an investment company or such other similar regulated capacity as is deemed material to its business, the Indemnitee shall have the right at all times to take over and assume control over the defense, settlement, negotiations or Legal Proceeding relating to any such Third-Party Claim at the sole cost of the Indemnitor, provided, that if the Indemnitee does so take over and assume control, the Indemnitee shall not settle such Third-Party Claim without the written consent of the Indemnitor. If the Indemnitor does not assume the Third-Party Defense, the Indemnitee will be entitled to assume the Third-Party Defense Defense, at the expense of the Indemnitor Indemnitee’s sole cost and expense, upon delivery of notice to such effect to the Indemnitor; provided, however, that the Indemnitor (i) Indemnitor shall have the right to participate in the Third-Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; and , (ii) may at any time thereafter assume the Third-Party Defense, in which event the Indemnitor shall bear the reasonable fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the Third-Party Defense, and (iii) will not be obligated to indemnify the Indemnitee hereunder under this Agreement for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (except where such consent was unreasonably withheld, conditioned or delayed)consent.

Indemnification Procedure for Third Party Claims. (a) Other than in respect of Taxes, which shall be governed by Section 6.7, in In the event that any claim or demand, or other circumstance or state of facts that would reasonably be expected to could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder under this Agreement, is asserted or sought to be collected, in each case, in writing, collected by a third party Person or Governmental Entity who is not a Party or an Affiliate thereof (a “Third-Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) days following such Indemnitee’s receipt or knowledge of a Third-Party Claim, notify the Indemnitor in writing of such Third-Party Claim (a “Notice of Claim”)) as promptly as practicable; provided, however, that a failure or delay by an Indemnitee to provide timely notice consistent with the requirements a Notice of this Section 9.4(a) Claim as promptly as practicable shall not affect the rights or obligations of such Indemnitee except to unless the extent Indemnitor shall have been prejudiced as a result of such failure results in material prejudice to the Indemnifying Party with respect to such Third-Party Claimor delay. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement (if applicable) Agreement, and (ii) specify in reasonable detail detail, as applicable and to the extent known, each individual item of Loss included in the amount so stated (taking into account the information then known to the Indemnitee)stated, the date such item was paid or properly accrued (if applicable)accrued, the basis for any anticipated Loss and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled hereunderunder this Agreement. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Party Claim, if any, and any other available documents evidencing such Third-Party Claim. The Indemnitee will reasonably cooperate and assist the Indemnitor in determining the validity of any claim for indemnity by the Indemnitee and in otherwise resolving such matters. (b) The Indemnitor shall have the right, but not the obligation, upon notice delivered to the Indemnified Party, to assume the defense or prosecution of such Third-Party Claim and any litigation resulting therefrom with counsel of its choice (which counsel shall be reasonably satisfactory to the Indemnitee) and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Party Defense”); provided that the Indemnitor shall not be entitled ) by providing written notice of such assumption to undertake a Third-Party Defense, and the Indemnitor shall pay the fees and expenses of counsel retained by the Indemnitee in connection therewith, if (A) within 60 days following delivery of the claim or demand relates to or arises in connection with any criminal Legal Proceeding, indictment or allegation or regulatory enforcement action, (B) the claim or demand seeks an injunction or equitable relief against the Indemnitee or any Notice of its Related Parties or (C) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying PartyClaim. If the Indemnitor assumes the Third-Party Defense in accordance herewithwith this Agreement, (i) the Indemnitee may retain separate co-counsel at its sole cost and expense (subject to the below) and participate in the defense of the Third-Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof, (ii) the Indemnitee will not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnitor, Indemnitor and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim (A) to the extent such judgment or settlement (x) provides for equitable or other non-monetary relief, (y) does not contain a full and unconditional release of liability for the Indemnitee or (z) contains an admission of fault, breach, violation or liability, in each case, injunctive relief without the prior written consent of the Indemnitee, (B) if such settlement does not include as a term thereof the giving by the Person(s) asserting such claim to the Indemnitee a release from all liability with respect to such claim underlying such judgment or settlement or (not to be unreasonably withheld, conditioned C) if such settlement or delayed)judgment contains any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnitee. The Parties will use their commercially reasonable efforts to minimize Losses from Third-Party Claims and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third-Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent. (c) If the Indemnitor does not assume the Third-Party Defense, the Indemnitee will be entitled to assume the Third-Party Defense Defense, at its sole cost and expense (or, if the Indemnitee incurs a Loss with respect to the matter in question for which the Indemnitee is entitled to indemnification pursuant to ‎Section 8.2 or ‎Section 8.3, as applicable, at the expense of the Indemnitor Indemnitor), upon delivery of notice to such effect to the Indemnitor; provided, however, that the (i) the Indemnitor shall have the right to participate in the Third-Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; , and (ii) the Indemnitee shall not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the consent of the Indemnitor will if such judgment or settlement imposes any financial or other obligation or Liability on the Indemnitor. (d) Notwithstanding the foregoing, the Indemnitor shall not be obligated have the right to indemnify assume the defense of such Third-Party Claim, if (i) the claim seeks only an injunction or other equitable relief, (ii) the Indemnitee hereunder for any settlement entered into shall have been advised by counsel that there are one or any judgment that was consented more legal or equitable defenses available to without them which are different from or in addition to those available to the Indemnitor’s prior written consent , and, in the reasonable opinion of the Indemnitee, counsel for the Indemnitor could not adequately represent the interests of the Indemnitee because such interests could be in conflict with those of the Indemnitor, (except where iii) such consent was unreasonably withheldThird-Party Claim involves, conditioned or delayed)could have a material effect on, any material matter beyond the scope of the indemnification obligation of the Indemnitor, (iv) the Indemnitor shall not have assumed the defense of such Third-Party Claim in a timely fashion, or (v) the Third-Party Claim involves a criminal matter. (e) To the extent there is any conflict between this ‎Section 8.4 and ‎Section 5.8(e) as relates to a Tax Claim, the provisions of ‎Section 5.8(e) shall control.

Indemnification Procedure for Third Party Claims. (a) Other than in respect of Taxes, which shall be governed by Section 6.7, in In the event that any claim or demand, or other circumstance or state of facts that would reasonably be expected to which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected, in each case, in writing, collected by a third party (“Third-Third Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) days following such Indemnitee’s receipt or knowledge of a Third-Party Claim, as soon as practicable notify the Indemnitor in writing of such Third-Third Party Claim (“Notice of Claim”); provided, however, that a failure by an Indemnitee to provide timely notice consistent with the requirements of this Section 9.4(a) so give such notification shall not affect the rights or obligations of such Indemnitee indemnification provided hereunder except to the extent the Indemnitor shall have been actually and materially prejudiced as a result of such failure results in material prejudice to the Indemnifying Party with respect to such Third-Party Claimfailure. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement (if applicable) Agreement, and (ii) specify in reasonable detail detail, the amount or the estimated amount of such Third Party Claim, to the extent such amount is reasonably determinable, each individual item of Loss included in the amount so stated (taking into account the information then known to the Indemnitee)stated, the date such item was paid or properly accrued (if applicable)accrued, the basis for any anticipated Loss liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled hereunderrelated. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served thereon with respect to such Third-Third Party Claim, if any, and any other available documents received thereby evidencing such Third-Third Party Claim. (b) The . “Indemnitee” means any Person that is seeking indemnification from an Indemnitor shall have the right, but not the obligation, upon notice delivered pursuant to the Indemnified Party, provisions of this Agreement. “Indemnitor” means any party to assume the defense or prosecution of such Third-Party Claim and this Agreement from which any litigation resulting therefrom with counsel of its choice and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Party Defense”); provided that the Indemnitor shall not be entitled to undertake a Third-Party Defense, and the Indemnitor shall pay the fees and expenses of counsel retained by the Indemnitee in connection therewith, if (A) the claim or demand relates to or arises in connection with any criminal Legal Proceeding, indictment or allegation or regulatory enforcement action, (B) the claim or demand seeks an injunction or equitable relief against the Indemnitee or any of its Related Parties or (C) there are legal defenses available is seeking indemnification pursuant to the Indemnified Party that are different from or additional to those available to the Indemnifying Party. If the Indemnitor assumes the Third-Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-counsel at its sole cost and expense (subject to the below) and participate in the defense provisions of the Third-Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof, (ii) the Indemnitee will not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnitor, and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim to the extent such judgment or settlement (x) provides for equitable or other non-monetary relief, (y) does not contain a full and unconditional release of liability for the Indemnitee or (z) contains an admission of fault, breach, violation or liability, in each case, without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed). The Parties will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third-Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consentthis Agreement. (c) If the Indemnitor does not assume the Third-Party Defense, the Indemnitee will be entitled to assume the Third-Party Defense at the expense of the Indemnitor upon delivery of notice to such effect to the Indemnitor; provided, however, that the (i) Indemnitor shall have the right to participate in the Third-Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; and (ii) the Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (except where such consent was unreasonably withheld, conditioned or delayed).

Indemnification Procedure for Third Party Claims. (a) Other than in respect of Taxes, which shall be governed by Section 6.7, in In the event that any claim or demand, or other circumstance or state of facts that would reasonably be expected to which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder (each, a “Claim”) is asserted or sought to be collected, in each case, in writing, collected by a third party (“Third-Third Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) days following such Indemnitee’s receipt or knowledge of a Third-Party Claim, as soon as practicable notify the Indemnitor in writing of such Third-Third Party Claim (“Notice of Claim”); provided, however, that a the failure by an of any Indemnitee to provide timely give notice consistent with the requirements of as provided in this Section 9.4(a) shall not affect relieve the rights or Indemnitor of its obligations of such Indemnitee under this Article IX, except to the extent that such failure results in material prejudice Indemnitor’s ability to the Indemnifying Party remedy, contest, defend or settle with respect to such Third-Third Party ClaimClaim is materially prejudiced by such failure or delay to give notice. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability Liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement (if applicable) and (ii) to the extent ascertainable, specify in reasonable detail each individual item of Loss included in the amount so stated (taking into account the information then known to the Indemnitee)stated, the date such item was paid or properly accrued (if applicable)accrued, the basis for any anticipated Loss Liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Third Party Claim, if any, and any other available documents evidencing such Third-Third Party Claim; provided, however, that any confidential or privileged materials shall not be disclosed by the Indemnitee other than as needed for the defense of the Third Party Claim, and the Indemnitor agrees to enter into a commercially reasonable confidentiality and non-use agreement with the Indemnitee with respect to such information. (b) The Indemnitor shall have 45 days from the right, but not date on which the obligation, upon notice delivered Indemnitor received the Notice of Claim to notify the Indemnified Party, Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third-Third Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Third Party Defense”); provided that . Notwithstanding the foregoing, the Indemnitor shall not be entitled permitted to undertake a Third-assume the Third Party Defense, and the Indemnitor shall pay the fees and expenses of counsel retained by the Indemnitee in connection therewith, if Defense if: (A) upon petition by the claim Indemnitee, the appropriate court determines that the Indemnitor failed or demand relates is failing to vigorously prosecute or arises in connection with any criminal Legal Proceeding, indictment or allegation or regulatory enforcement actiondefend such Third Party Claim, (B) the claim Third Party Claim is in respect of any matter involving criminal liability or demand asserts fraud of the Indemnitee, (C) the matter that is the subject of the Third Party Claim seeks as the primary cause of action the imposition of an injunction equitable or equitable relief injunctive remedy against the Indemnitee or any of its Related Parties Affiliates, (D) the Third Party Claim seeks damages in excess of the amount for which the Indemnitor may be liable under this Agreement, (E) the Third Party Claim involves any Governmental Entity as a party thereto, or (CF) there are legal defenses available the Indemnitor fails to provide reasonable assurance to the Indemnified Indemnitee of its financial capacity to defend such Third Party that are different from or additional to those available to the Indemnifying PartyClaim. If the Indemnitor assumes the Third-Third Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-counsel at its sole cost and expense (subject to the below) and participate in the defense of the Third-Third Party Claim, Claim but the Indemnitor shall control the investigation, defense and settlement thereof, provided that the Indemnitee shall be entitled to participate in the defense of such Third Party Claim with separate counsel at the expense of the Indemnitor if, in the reasonable opinion of counsel to the Indemnitee, a conflict exists on a material issue between the Indemnitee and the Indemnitor that would make such separate representation advisable, (ii) the Indemnitee will shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnitor, Indemnitor and (iii) the Indemnitor will shall not consent to the entry of any judgment or enter into any settlement with respect to the Third-Third Party Claim to the extent such judgment or settlement (x) provides for equitable or other non-monetary relief, (y) does not contain involves a full and unconditional release finding or admission of liability for any violation of Law or suggestion of any wrongdoing on behalf of the Indemnitee Indemnitee, or (z) contains an admission of faultdoes not fully and unconditionally release the Indemnitee from liability with respect to such Third Party Claim, breach, violation or liabilitywithout prejudice, in each case, case without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed)Indemnitee. The Parties shall use commercially reasonable efforts to minimize Losses from Third Party Claims and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will shall also cooperate in any such defense and give each other reasonable access to all information relevant thereto; provided, however, that no Party shall be required to disclose any confidential or privileged materials other than as needed for the defense of the Third Party Claim, and the receiving Party agrees to enter into a commercially reasonable confidentiality and non-use agreement with the disclosing Party with respect to such information. Whether or not the Indemnitor has assumed the Third-Third Party Defense, such Indemnitor will shall not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent. (c) If the Indemnitor does not or is not entitled to assume the Third-Third Party DefenseDefense within 45 days of receipt of the Notice of Claim, the Indemnitee will be entitled to assume the Third-Third Party Defense Defense, at the expense of the Indemnitor (subject to the applicable limitations on Losses herein), upon delivery of notice to such effect to the Indemnitor; provided, however, provided that the (i) Indemnitor shall have the right to participate in the Third-Third Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; and , (ii) the Indemnitee shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor will (which consent shall not be unreasonably withheld or delayed), and (iii) the Indemnitor shall not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (except where such consent was unreasonably withheld, conditioned or delayed)consent.

Indemnification Procedure for Third Party Claims. (a) Other than in respect of Taxes, which shall be governed by Section 6.7, in In the event that any claim or demand, or other circumstance or state statement of facts that would reasonably be expected to which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected, in each case, in writing, collected by a third party (“Third-Third Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) days following such Indemnitee’s receipt or knowledge of a Third-Party Claim, as soon as practicable notify the Indemnitor in writing of such Third-Third Party Claim (“Notice of Claim”); provided that any Notice of Claim required to be provided to the Company Stockholders, the Company Optionholders and the RSU Holders as Indemnitors pursuant to Section 12.2 shall be delivered to the Stockholder Representative; provided, howeverfurther, that a the failure by an Indemnitee to provide timely notice consistent with the requirements Notice of this Section 9.4(a) Claim shall not affect the rights release any Indemnitor from any of its, his or her obligations of such Indemnitee under this Article XII except to the extent that such failure results in material prejudice to the Indemnifying Party with respect to Indemnitor has been actually and materially prejudiced by such Third-Party Claimfailure. The Notice of Claim shall (i) state that the Indemnitee has paid paid, suffered, reserved or properly accrued Losses or reasonably anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement Agreement, (if applicableii) state the amount of such Losses to the extent known, and (iiiii) specify in reasonable detail each individual item of Loss included in the amount so stated (taking into account the information then material facts known to the Indemnitee), the date Indemnitee giving rise to such item was paid or properly accrued (if applicable), the basis for any anticipated Loss claim and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all relevant papers served with respect to such Third-Third Party Claim, if any, and any other available documents evidencing such Third-Third Party Claim. (b) The Notwithstanding the foregoing, if the Indemnitor (to the extent the Indemnitors are the Company Stockholders and the Company Optionholders, the Stockholder Representative) acknowledges in writing, subject to the limitations contained in this Article XII, the obligation of the Indemnitors to indemnify and hold harmless the Indemnitees against any Losses that may result from such Third Party Claim, then the Indemnitor (to the extent the Indemnitors are the Company Stockholders, the Company Optionholders, and the RSU Holders, the Stockholder Representative) shall be entitled to assume and control the defense of such Third Party Claim at their expense through counsel of their choice (such counsel to be reasonably acceptable to Parent) if the Indemnitor (to the extent the Indemnitors are the Company Stockholders, the Company Optionholders and the RSU Holders, the Stockholder Representative) gives notice of such intention to Indemnitee within twenty (20) days of the receipt of the Notice of Claims. Notwithstanding the foregoing, the Stockholder Representative shall not have the right, but not the obligation, upon notice delivered to the Indemnified Party, right to assume the defense or prosecution of such Third-the Third Party Claim and to the extent (i) any litigation resulting therefrom such claim seeks, in addition to or in lieu of monetary losses, any injunctive or other equitable relief, (ii) the Stockholder Representative fails to provide reasonable assurance to Parent of the adequacy of the Escrow Fund to provide indemnification in accordance with counsel the provisions of its choice and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Party Defense”); provided that the Indemnitor shall not be entitled to undertake a Third-Party Defense, this Agreement and the Indemnitor shall pay Escrow Agreement with respect to such proceeding, (iii) there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate (in the fees judgment of Parent in its reasonable discretion) for the same counsel to represent both the Parent Indemnitee and expenses of counsel retained by the Indemnitee in connection therewithIndemnitors, if (Aiv) the Third Party Claim involves or relates to the subject matter contained in Section 4.9 (Compliance with Law, Authorizations), Section 4.22 (Healthcare Regulatory Matters) or Section 4.23 (HIPAA Compliance), (v) any such claim or demand relates to or arises in connection with any criminal Legal Proceedingaction, indictment or indictment, allegation or regulatory enforcement actionAction, or (Bvi) settlement of, or an adverse judgment with respect to, the claim Third Party Claim may establish (in the judgment of Parent) a precedential custom or demand seeks an injunction practice adverse to the business interests or equitable relief against the Indemnitee reputation of Parent or any of its Related Parties Affiliates or involves any Tax liability of Parent or any of its Affiliates; provided, further, that if by reason of the Third Party Claim a lien, attachment, garnishment, execution or other Lien is placed upon any of the property or assets of such Parent Indemnitee, the Indemnitor, if it desires to exercise the right to assume such defense of the Third Party Claim, must furnish a satisfactory indemnity bond to obtain the prompt release of such lien, attachment, garnishment, execution or other Lien; (C) there are legal defenses available to provided, further, the Indemnified Party that are different from or additional to those available to the Indemnifying Party. If the Indemnitor assumes the Third-Party Defense in accordance herewithStockholder Representative shall, (i) the Indemnitee may retain separate co-counsel at its sole own cost and expense (subject and without recourse to the below) Escrow Fund, have the right to observe and participate in be reasonably informed of the defense of the Third-such Third Party Claim, but the Indemnitor Parent shall control all aspects of such defense, including the investigation, defense and settlement thereof). (c) If the Stockholder Representative assumes the defense of a Third Party Claim as provided above, they will conduct the defense actively, diligently and at their own expense, and, subject to the limitations contained in this Article XII, the Company Stockholders, Company Optionholders and RSU Holders will indemnify and hold the Parent Indemnitees harmless from and against all Losses caused by or arising out of such Third Party Claim. The Parent Indemnitees shall reasonably cooperate with the Stockholder Representative in such defense and make available to the Stockholder Representative (iiat the Stockholder Representative’s expense) all pertinent records, materials and information in the Indemnitee Parent Indemnitee’s possession or under the Parent Indemnitee’s control relating thereto as is reasonably requested by the Stockholder Representative. Except with the written consent of the Parent, the Stockholder Representative will not file any papers or not, in the defense of a Third Party Claim, consent to the entry of any judgment or enter into any settlement (i) which does not include as an unconditional term thereof the giving to the Parent Indemnitee and all of its Affiliates by the third party of a release from all liability with respect to such suit, claim, action, or proceeding; (ii) unless there is no finding or admission of (A) any violation of Law by the Third-Party Claim without Parent Indemnitee (or any Affiliate thereof), (B) any liability on the prior written consent part of the Indemnitor, Parent Indemnitee (or any Affiliate thereof) or (C) any violation of the rights of any Person and no effect on any other claims of a similar nature that may be made by the same third party against the Parent Indemnitee (or any Affiliate thereof); and (iii) which exceeds the Indemnitor will then current value of the Escrow Fund. The Stockholder Representative shall be required to provide Parent a copy of any proposed judgment or proposed settlement before the Stockholder Representative consents or enters into any such judgment or settlement. Without limiting the foregoing, the Stockholder Representative shall not consent to the entry of any judgment or enter into any settlement with respect if within twenty (20) Business Days after Parent is provided a copy of the proposed final judgment or proposed settlement, Parent provides written notice to the Third-Party Claim to Stockholder Representative that in the extent reasonable judgment of Parent such judgment or settlement (x) provides for equitable or other non-monetary reliefwould adversely affect the Surviving Corporation, (y) does not contain a full and unconditional release of liability for the Indemnitee or (z) contains an admission of fault, breach, violation or liability, in each case, without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed). The Parties will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third-Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into Parent or any judgment that was consented to without the Indemnitor’s prior written consentParent Indemnitee. (cd) If In the Indemnitor does event that the Stockholder Representative fails or elects not to assume the Third-defense of a Parent Indemnitee against such Third Party DefenseClaim which the Stockholder Representative had the right to assume under this Section 12.5 (or after assuming such defense, fails to actively and diligently conduct the Indemnitee will be defense thereof) or if the Stockholder Representative is not entitled to assume such defense under this Section 12.5, the Third-Party Defense Parent Indemnitees shall have the right, at the expense of the Indemnitor upon delivery Indemnitees, to defend or prosecute such claim (and in such event shall do so actively and diligently) and may settle such claim or consent to entry of judgment after giving written notice to such effect thereof to the IndemnitorStockholder Representative, on such terms as such Parent Indemnitee may deem appropriate; provided, however, that if the Parent Indemnitee settles any such Third Party Claim or consents to entry of judgment without the consent of the Stockholder Representative (iwhich consent shall not be unreasonably withheld or delayed), the settlement of such claim or consent to entry of judgment shall not, nor shall the entry of any judgment in and of itself, prevent the Stockholder Representative from contesting (on behalf of the Indemnitors) Indemnitor the issue of whether such claim is within the scope of and subject to indemnification under this Article XII. The Stockholder Representative shall have cooperate with the Parent Indemnitees in such defense and make available to the Parent Indemnitees, at their expense, all such witnesses, records, materials and information in their possession or under their control relating thereto as is reasonably requested by the Parent Indemnitee. If the Stockholder Representative does not elect to assume the defense of a Third Party Claim which it has the right to participate in assume hereunder, the Third-Party Defense at its sole cost and expenseParent Indemnitees shall have no obligation to do so. (e) To the extent that this Section 12.5 conflicts with the terms of Section 8.4, but the Indemnitee terms of Section 8.4 shall control the investigation, defense and settlement thereof; and (ii) the Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (except where such consent was unreasonably withheld, conditioned or delayed)control.

Indemnification Procedure for Third Party Claims. (a) Other than in respect of Taxes, which shall be governed by Section 6.7, in In the event that any claim or demand, or other circumstance or state of facts that would reasonably be expected to could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder under this Agreement, is asserted or sought to be collected, in each case, in writing, collected by a third party Person or Governmental Entity who is not a Party or an Affiliate thereof (a “Third-Party Claim”), the Indemnitee shall promptly, but in no event more than thirty (30) days following such Indemnitee’s receipt or knowledge of a Third-Party Claim, notify the Indemnitor in writing of such Third-Party Claim (a “Notice of Claim”)) as promptly as practicable; provided, however, that a failure or delay by an Indemnitee to provide timely notice consistent with the requirements a Notice of this Section 9.4(a) Claim as promptly as practicable shall not affect the rights or obligations of such Indemnitee except to unless the extent Indemnitor shall have been prejudiced as a result of such failure results in material prejudice to the Indemnifying Party with respect to such Third-Party Claimor delay. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement (if applicable) Agreement, and (ii) specify in reasonable detail detail, as applicable, each individual item of Loss included in the amount so stated (taking into account the information then known to the Indemnitee)stated, the date such item was paid or properly accrued (if applicable)accrued, the basis for any anticipated Loss and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related (taking into account the information then known to the Indemnitee) and the computation of the amount to which such Indemnitee claims to be entitled hereunderunder this Agreement. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Party Claim, if any, and any other available documents evidencing such Third-Party Claim. The Indemnitee will reasonably cooperate and assist the Indemnitor in determining the validity of any claim for indemnity by the Indemnitee and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to, and copies of, information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters, in each case without expense (other than reimbursement of actual out-of-pocket expenses). (b) The Indemnitor shall have the right, but not the obligation, upon notice delivered to the Indemnified Party, to assume the defense or prosecution of such Third-Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost 69838412_11 DB1/ 98258861.9 and expense (a “Third-Party Defense”)) by providing written notice of such assumption to the Indemnitee within 30 days following delivery of the Notice of Claim; provided provided, that if the Indemnitor is the Seller, such Indemnitor shall not be entitled have the right to undertake a defend or direct any such Third-Party DefenseDefense that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of the Company, and the Indemnitor shall pay the fees and expenses of counsel retained by the Indemnitee in connection therewith, if or (Ay) the claim or demand relates to or arises in connection with any criminal Legal Proceeding, indictment or allegation or regulatory enforcement action, (B) the claim or demand seeks an injunction or other equitable relief against the Indemnitee or any of its Related Parties or (C) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying PartyIndemnitee. If the Indemnitor assumes the Third-Party Defense in accordance herewithwith this Agreement, (i) the Indemnitee may retain separate co-counsel at its sole cost and expense (subject to the below) and participate in the defense of the Third-Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof; provided, that if in the reasonable opinion of counsel to the Indemnitee, (A) there are legal defenses available to an Indemnitee that are different from or additional to those available to the Indemnitor, or (B) there exists a conflict of interest between the Indemnitor and the Indemnitee that cannot be waived, the Indemnitor shall be liable for the reasonable fees and expenses of counsel to the Indemnitee in each jurisdiction for which the Indemnitee determines counsel is required; (ii) the Indemnitee will not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnitor, ; and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim to the extent such judgment or settlement (x) provides for equitable or other non-monetary or equitable relief, (y) does not contain a full and unconditional release performance obligations, or monetary relief in excess of liability for the Indemnitee or (z) contains an admission of fault, breach, violation or liability, in each case, Cap without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed)Indemnitee. The Parties will use their commercially reasonable efforts to minimize Losses from Third-Party Claims and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third-Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consentconsent shall not be determinative of the amount of Losses relating to such matter. (c) If the Indemnitor does not assume the Third-Party Defense, the Indemnitee will be entitled to assume the Third-Party Defense and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim and Third-Party Defense if the Indemnitee incurs a Loss with respect to the matter in question for which the Indemnitee is entitled to indemnification pursuant to Section 9.2 or Section 9.3, as applicable, at the expense of the Indemnitor Indemnitor, upon delivery of notice to such effect to the Indemnitor; provided, however, that the (i) Indemnitor shall have the right to participate in the Third-Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; . (d) To the extent that Section 6.8(e) (with respect to Tax Proceedings) applies to any Third-Party Claim, Section 6.8(e), and (ii) the Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (except where such consent was unreasonably withheldthis Section 9.4, conditioned or delayed)shall govern.