Common use of Indemnification, Representative Clause in Contracts

Indemnification, Representative. (a) Shareholder Representative Services LLC (the “Indemnification Representative”) is hereby authorized to act on behalf of the Company Participating Equityholders in connection with the transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreement, and to make payments to Company Participating Equityholders pursuant to Section 2.6. In connection therewith, the Indemnification Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Indemnification Representative shall deem necessary or appropriate, and shall have the power and authority to: (i) act for the Company Participating Equityholders with regard to all matters pertaining to indemnification pursuant to Article IX of this Agreement, including the power to compromise any indemnity claim on behalf of the Company Participating Equityholders and to transact matters of litigation; (ii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Indemnification Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) receive funds, make payments of funds, and give receipts for funds, or appoint an agent or advisor for such purposes; (iv) do or refrain from doing any further act or deed on behalf of the Company Participating Equityholders that the Indemnification Representative deems necessary or appropriate in their discretion relating to the subject matter of this Agreement as fully and completely as the Company Participating Equityholders could do if personally present; (v) give and receive all notices required to be given or received by the Company Participating Equityholders under this Agreement; and (vi) receive service of process in connection with any claims under this Agreement. (b) All decisions and actions by the Indemnification Representative shall be binding upon all Company Participating Equityholders, and no Company Participating Equityholder shall have the right to object, dissent, protest or otherwise contest the same. (c) Prior to the Effective Time, the Company shall pay $0 to the Indemnification Representative (the “Indemnification Representative’s Fund”), which Indemnification Representative’s Fund shall be maintained by the Indemnification Representative in a segregated account (the “Indemnification Representative’s Account”). The Indemnification Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Indemnification Representative’s Fund. Upon the determination of the Indemnification Representative that the Indemnification Representative’s Fund is no longer necessary in connection with indemnification claims that may be brought hereunder, the Indemnification Representative shall distribute to the Company Participating Equityholders (solely out of the Indemnification Representative’s Fund) the amount remaining in the Indemnification Representative’s Fund after payment of all of the Indemnification Representative’s out-of-pocket expenses incurred in connection with its services as Indemnification Representative (such amount, the “Residual Indemnification Representative’s Fund Amount”) in accordance with Section 2.6(b) hereof. The Indemnification Representative shall hold and disburse the Indemnification Representative’s Account in trust for all of the Company Participating Equityholders, and the Indemnification Representative’s Account shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. For tax purposes, the Indemnification Representative’s Account shall be treated as having been received and voluntarily set aside by the Company Participating Equityholders at the time of Closing. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account as a fee to the Indemnification Representative. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. The parties agree that the Indemnification Representative is not acting as a withholding agent or in any similar capacity in connection with the Indemnification Representative’s Account. If any tax reporting is required with respect to the ultimate distribution of any balance of the Indemnification Representative’s Account, then the Indemnification Representative will provide to Buyer or its designated agent, upon request, information regarding the amounts distributed to each Company Participating Equityholder, to be used by Buyer or its agent in completing any required tax reporting. Any portion of the Indemnification Representative’s Account that remains undeliverable or unclaimed after six months of the initial delivery attempt shall promptly be paid to Buyer and handled in the same manner as other unclaimed funds as provided in this Agreement. (d) The Indemnification Representative shall act for the Company Participating Equityholders on all of the matters set forth in this Agreement in the manner the Indemnification Representative believes to be in the best interest of the Company Participating Equityholders. The Indemnification Representative is authorized to act on behalf of the Company Participating Equityholders notwithstanding any dispute or disagreement among the Company Participating Equityholders. In taking any actions as Indemnification Representative, the Indemnification Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person the Indemnification Representative reasonably believes to be authorized thereunto. The Indemnification Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Indemnification Representative shall not be liable to any of the parties hereto or to any Company Participating Equityholder for anything done, omitted or suffered in good faith by the Indemnification Representative based on such advice. The Indemnification Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Indemnification Representative. The Indemnification Representative shall not have any liability to any of the parties hereto or the Company Participating Equityholders for any act done or omitted hereunder as Indemnification Representative while acting in good faith. The Indemnification Representative shall be indemnified by the Company Participating Equityholders from and against any loss, liability or expense arising out of or in connection with the acceptance or administration of its duties hereunder from the Indemnification Representative’s Fund, in each case as such loss, liability or expense is incurred or suffered, provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the bad faith of the Indemnification Representative, the Indemnification Representative will reimburse the Company Participating Equityholders the amount of such loss, liability or expense attributable to such bad faith. In the event that the Indemnification Representative’s Fund is insufficient to fully reimburse the Indemnification Representative for such indemnified losses, liabilities or expenses, the Indemnification Representative shall be entitled to deduct and retain the amount of such shortfall out of any General Escrow Funds, NOL Tax Refund or Contingent Consideration received on behalf of the Indemnification Representative that the Indemnification Representative would otherwise be obligated to cause to be distributed to the Company Participating Equityholders pursuant to Section 2.6(b); provided that nothing in this Section shall (i) relieve the Company Participating Equityholders from their obligation to promptly pay such losses, liabilities or expenses as they are suffered or incurred or (ii) prevent the Indemnification Representative from seeking any remedies available to it at law or otherwise.

Indemnification, Representative. (a1) Shareholder Representative Services LLC (the “Indemnification Representative”) is hereby authorized to act on behalf of the Company Participating Equityholders in connection with the transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreement, and to make payments to Company Participating Equityholders pursuant to Section 2.6. In connection therewith, the Indemnification Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Indemnification Representative shall deem necessary or appropriate, and shall have the power and authority to: (i) act for the Company Participating Equityholders with regard to all matters pertaining to indemnification pursuant to Article IX For purposes of this Agreement, including the power to compromise any indemnity claim on behalf of the Company Participating Equityholders and to transact matters of litigation; (ii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the "Indemnification Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) receive funds, make payments of funds, and give receipts for funds, or appoint an agent or advisor for such purposes; (iv) do or refrain from doing any further act or deed on behalf of the Company Participating Equityholders that the Indemnification Representative deems necessary or appropriate in their discretion relating to the subject matter of this Agreement as fully and completely as the Company Participating Equityholders could do if personally present; (v) give and receive all notices required to be given or received by the Company Participating Equityholders under this Agreement; and (vi) receive service of process in connection with any claims under this Agreement. (b) All decisions and actions by the Indemnification Representative Representative" shall be binding upon all Company Participating Equityholders, and no Company Participating Equityholder shall have the right to object, dissent, protest or otherwise contest the same. (c) Prior to the Effective Time, the Company shall pay $0 to the Indemnification Representative (the “Indemnification Representative’s Fund”), which Indemnification Representative’s Fund shall be maintained by the Indemnification Representative in a segregated account (the “Indemnification Representative’s Account”)Xxxxxxxx Xxxxx. The Indemnification Representative shall be reimbursed for reasonable out-of-pocket expenses incurred incur no liability with respect to any action taken or suffered by him in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Indemnification Representative’s Fund. Upon the determination of the Indemnification Representative that the Indemnification Representative’s Fund is no longer necessary in connection with indemnification claims that may be brought hereunder, the Indemnification Representative shall distribute to the Company Participating Equityholders (solely out of the Indemnification Representative’s Fund) the amount remaining in the Indemnification Representative’s Fund after payment of all of the Indemnification Representative’s out-of-pocket expenses incurred in connection with its services his capacity as Indemnification Representative (such amountin reliance upon any note, the “Residual Indemnification Representative’s Fund Amount”) in accordance with Section 2.6(b) hereof. The Indemnification Representative shall hold and disburse the Indemnification Representative’s Account in trust for all of the Company Participating Equityholdersdirection, and the Indemnification Representative’s Account shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder. The Company Participating Equityholders shall not receive interest instruction, consent, statement or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. For tax purposes, the Indemnification Representative’s Account shall be treated as having been received and voluntarily set aside documents believed by the Company Participating Equityholders at the time of Closing. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account as a fee to the Indemnification Representative. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. The parties agree that the Indemnification Representative is not acting as a withholding agent or in any similar capacity in connection with the Indemnification Representative’s Account. If any tax reporting is required with respect to the ultimate distribution of any balance of the Indemnification Representative’s Account, then the Indemnification Representative will provide to Buyer or its designated agent, upon request, information regarding the amounts distributed to each Company Participating Equityholder, him to be used by Buyer genuinely and duly authorized, nor for other action or its agent in completing any required tax reporting. Any portion of the Indemnification Representative’s Account that remains undeliverable inaction except his own willful misconduct or unclaimed after six months of the initial delivery attempt shall promptly be paid to Buyer and handled in the same manner as other unclaimed funds as provided in this Agreement. (d) The Indemnification Representative shall act for the Company Participating Equityholders on all of the matters set forth in this Agreement in the manner the Indemnification Representative believes to be in the best interest of the Company Participating Equityholders. The Indemnification Representative is authorized to act on behalf of the Company Participating Equityholders notwithstanding any dispute or disagreement among the Company Participating Equityholders. In taking any actions as Indemnification Representative, the Indemnification Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person the Indemnification Representative reasonably believes to be authorized thereuntonegligence. The Indemnification Representative may, in all questions arising hereunderunder this Agreement, rely on the advice of counsel, counsel and the Indemnification Representative shall not be liable to any of the parties hereto or to any Company Participating Equityholder for anything done, omitted or suffered in good faith by the Indemnification Representative based on such advice. The Indemnification Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against , the Indemnification Representative. The Indemnification Representative shall not have any liability be liable to any of the parties hereto or the Company Participating Equityholders for any act done or omitted hereunder as Indemnification Representative while acting in good faithanyone. The Indemnification Representative shall be indemnified and saved harmless by the Company Participating Equityholders Indemnifying Persons from all losses, costs and against expenses which he may incur as a result of involvement in any loss, liability or expense legal proceedings arising out of or in connection with the acceptance or administration of its duties hereunder from the Indemnification Representative’s Fund, in each case as such loss, liability or expense is incurred or suffered, provided that in performance of his duties hereunder. (2) In the event it is finally adjudicated that any such loss, liability of the death or expense was primarily caused by the bad faith permanent disability of the Indemnification Representative, or his resignation as Indemnification Representative, a successor Indemnification Representative shall be elected by a majority vote of the Indemnifying Persons, with each such Indemnifying Person (or his or her successors or assigns) to be given a weighted vote based on his pro rata entitlement to the Consideration. Each successor Indemnification Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Indemnification Representative, and the term "Indemnification Representative" as used herein shall be deemed to include each successor Indemnification Representative. (3) The Indemnification Representative shall have full power and authority to represent the Indemnifying Persons, and their successors, with respect to all matters arising under this Agreement and all action taken by the Indemnification Representative will reimburse hereunder shall be binding upon the Company Participating Equityholders Indemnifying Persons, and their successors, as if expressly confirmed and ratified in writing by each of them. Without limiting the amount generality of such loss, liability or expense attributable to such bad faith. In the event that the Indemnification Representative’s Fund is insufficient to fully reimburse the Indemnification Representative for such indemnified losses, liabilities or expensesforegoing, the Indemnification Representative shall have full power and authority to interpret all of the terms and provisions of this Agreement, to compromise any claims asserted hereunder and to authorize payments to be entitled to deduct and retain the amount of such shortfall out of any General Escrow Fundsmade with respect thereto, NOL Tax Refund or Contingent Consideration received on behalf of the Indemnification Representative that the Indemnification Representative would otherwise be obligated to cause to be distributed to the Company Participating Equityholders pursuant to Section 2.6(b); provided that nothing in this Section shall (i) relieve the Company Participating Equityholders from Indemnifying Persons and their obligation to promptly pay such losses, liabilities or expenses as they are suffered or incurred or (ii) prevent the Indemnification Representative from seeking any remedies available to it at law or otherwisesuccessors.

Indemnification, Representative. (a) Shareholder Representative Services LLC The Company Stockholders by the approval and adoption of this Agreement appoint, authorize and empower Xxxxxx X. Xxxx (the “Indemnification Representative”) is hereby authorized to act on behalf of the each Company Participating Equityholders Stockholder in connection with the transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreementwith, and to make payments to Company Participating Equityholders pursuant to Section 2.6. In connection therewith, the Indemnification Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Indemnification Representative shall deem necessary or appropriate, and shall have the power and authority to: (i) act for the Company Participating Equityholders with regard to all matters pertaining to indemnification pursuant to Article IX of this Agreement, including the power to compromise any indemnity claim on behalf of the Company Participating Equityholders and to transact matters of litigation; (ii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Indemnification Representative deems necessary or appropriate in connection with facilitate the consummation of the transactions contemplated by under, this Agreement; , which shall include the power and authority (i) to make all decisions relating to the determination of any adjustments to the Cash Consideration and the determination of the Applicable Earnout EBITDA, (ii) to take all action necessary in connection with the defense and/or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer pursuant to Article VI hereof, (iii) receive funds, make payments of funds, and give receipts for funds, or appoint an agent or advisor for such purposes; (iv) do or refrain from doing any further act or deed on behalf of the Company Participating Equityholders that the Indemnification Representative deems necessary or appropriate in their discretion relating to the subject matter of this Agreement as fully and completely as the Company Participating Equityholders could do if personally present; (v) give and receive all notices required to be given under the Agreement, (iv) to execute and deliver the Escrow Agreement, (v) to execute and deliver such amendments to this Agreement as the Indemnification Representative, in his reasonable discretion, may deem necessary or received by desirable to give effect to the Company Participating Equityholders under intentions of this Agreement; and , and (vi) receive service to take any and all additional action as is contemplated to be taken by or on behalf of process in connection with any claims under the Company Stockholders by the terms of this Agreement. (b) In the event of the death or permanent disability of the Indemnification Representative, Xxxx Xxxx shall serve as Indemnification Representative. In the event of the death or permanent disability of Xxxx Xxxx, a successor Indemnification Representative shall be elected by a majority vote of the Company Stockholders, with each such Company Stockholder (or his, her or its successors or assigns) to be given a vote equal to the number of votes represented by the shares of stock of the Company held by such Company Stockholder immediately prior to the effective time of the Merger. Each successor Indemnification Representative shall have all of the power, authority, rights and privileges conferred by this Agreement and the Escrow Agreement upon the original Indemnification Representatives. (c) All decisions and actions by the Indemnification Representative, including, without limitation, any agreement between the Indemnification Representative and the Buyer relating to the determination of any adjustments to the Cash Consideration and the determination of the Applicable Earnout EBITDA, the defense or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer pursuant to Article VI hereof or the amendment of this Agreement shall be binding upon all of the Company Participating EquityholdersStockholders, and no Company Participating Equityholder Stockholder shall have the right to object, dissent, protest or otherwise contest the same. (cd) Prior to the Effective TimeBy their adoption and approval of this Agreement, the Company Stockholders agree that: (i) the Buyer shall pay $0 be able to rely conclusively on the instructions and decisions of the Indemnification Representative (as to the “Indemnification Representative’s Fund”)determination of any adjustments to the Cash Consideration and the determination of the Applicable Earnout EBITDA, which Indemnification Representative’s Fund shall the settlement of any claims for indemnification by the Buyer pursuant to Article VI hereof, the amendment of this Agreement or any other actions required to be maintained taken by the Indemnification Representative in a segregated account (hereunder, and no Party hereunder shall have any cause of action against the “Indemnification Representative’s Account”). The Indemnification Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Indemnification Representative’s Fund. Upon the determination of Buyer or the Indemnification Representative that for any action taken by the Indemnification Representative’s Fund is no longer necessary Buyer in connection with indemnification claims that may be brought hereunder, reliance upon the Indemnification Representative shall distribute to the Company Participating Equityholders (solely out instructions or decisions of the Indemnification Representative’s Fund) the amount remaining in the Indemnification Representative’s Fund after payment of all of the Indemnification Representative’s out-of-pocket expenses incurred in connection with its services as Indemnification Representative (such amount, the “Residual Indemnification Representative’s Fund Amount”) in accordance with Section 2.6(b) hereof. The Indemnification Representative shall hold and disburse the Indemnification Representative’s Account in trust for all of the Company Participating Equityholders, and the Indemnification Representative’s Account shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. For tax purposes, the Indemnification Representative’s Account shall be treated as having been received and voluntarily set aside by the Company Participating Equityholders at the time of Closing. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account as a fee to the Indemnification Representative. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. The parties agree that the Indemnification Representative is not acting as a withholding agent or in any similar capacity in connection with the Indemnification Representative’s Account. If any tax reporting is required with respect to the ultimate distribution of any balance of the Indemnification Representative’s Account, then the Indemnification Representative will provide to Buyer or its designated agent, upon request, information regarding the amounts distributed to each Company Participating Equityholder, to be used by Buyer or its agent in completing any required tax reporting. Any portion of the Indemnification Representative’s Account that remains undeliverable or unclaimed after six months of the initial delivery attempt shall promptly be paid to Buyer and handled in the same manner as other unclaimed funds as provided in this Agreement.; (dii) The Indemnification Representative shall act for the Company Participating Equityholders on all actions, decisions and instructions of the matters set forth in this Agreement in the manner the Indemnification Representative believes to be in the best interest of the Company Participating Equityholders. The Indemnification Representative is authorized to act on behalf of the Company Participating Equityholders notwithstanding any dispute or disagreement among the Company Participating Equityholders. In taking any actions as Indemnification Representative, the Indemnification Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person the Indemnification Representative reasonably believes to be authorized thereunto. The Indemnification Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Indemnification Representative shall not be liable to any of the parties hereto or to any Company Participating Equityholder for anything done, omitted or suffered in good faith by the Indemnification Representative based on such advice. The Indemnification Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Indemnification Representative. The Indemnification Representative shall not have any liability to any of the parties hereto or the Company Participating Equityholders for any act done or omitted hereunder as Indemnification Representative while acting in good faith. The Indemnification Representative shall be indemnified by the Company Participating Equityholders from and against any loss, liability or expense arising out of or in connection with the acceptance or administration of its duties hereunder from the Indemnification Representative’s Fund, in each case as such loss, liability or expense is incurred or suffered, provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the bad faith of the Indemnification Representative, the Indemnification Representative will reimburse the Company Participating Equityholders the amount of such loss, liability or expense attributable to such bad faith. In the event that the Indemnification Representative’s Fund is insufficient to fully reimburse the Indemnification Representative for such indemnified losses, liabilities or expenses, the Indemnification Representative shall be entitled to deduct conclusive and retain binding upon all of the amount Company Stockholders, and no Company Stockholder shall have any cause of such shortfall out of any General Escrow Funds, NOL Tax Refund or Contingent Consideration received on behalf of action against the Indemnification Representative that for any action taken, decision made or instruction given by the Indemnification Representative would otherwise under this Agreement, except for fraud or willful breach of this Agreement by the Indemnification Representative; (iii) the provisions of this Section 1.10 are independent and severable, are irrevocable and coupled with an interest and shall be obligated enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement; (iv) remedies available at law for any breach of the provisions of this Section 1.10 are inadequate; therefore, the Buyer, the Indemnification Representative and the Company shall be entitled to cause temporary and permanent injunctive relief without the necessity of proving damages if any such Party brings an action to enforce the provisions of this Section 1.10; and (v) the provisions of this Section 1.10 shall be distributed binding upon the executors, heirs, legal representatives and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder or the Company Stockholders shall mean and include the successors to the Company Participating Equityholders Stockholders’ rights hereunder, whether pursuant to Section 2.6(b); provided that nothing in this Section shall testamentary disposition, the laws of descent and distribution or otherwise. (ie) relieve the Company Participating Equityholders from their obligation to promptly pay such losses, liabilities or All fees and expenses as they are suffered or incurred or (ii) prevent by the Indemnification Representative from seeking any remedies available shall be paid by the Company Stockholders in proportion to it at law or otherwisetheir ownership of Company Shares.

Indemnification, Representative. (a) Shareholder Upon the adoption of this Agreement and the approval of the Merger and the transactions contemplated hereby by the Indemnifying Stockholders, and without further act of any Indemnifying Stockholder, Xxxx Xxxxx shall be appointed as the Indemnification Representative Services LLC (hereunder to give and receive notices and communications, to authorize payment to Buyer in any case where the “Indemnification Representative”) Buyer is hereby authorized the Indemnified Party from the Escrow Fund in satisfaction of Damages in any case where the Buyer is the Indemnified Party, to act object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such Damages, to receive payments on behalf of the Company Participating Equityholders in connection with the transactions contemplated by Indemnifying Stockholders due and owing pursuant to this Agreement and in acknowledge receipt thereof, to waive any litigation breach or arbitration involving default of Buyer or Transitory Subsidiary under this AgreementAgreement following the Effective Time, and to make payments to Company Participating Equityholders pursuant to Section 2.6. In connection therewith, the Indemnification Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Indemnification Representative shall deem necessary or appropriate, and shall have the power and authority to: (i) act for the Company Participating Equityholders with regard to all matters pertaining to indemnification pursuant to Article IX receive service of this Agreement, including the power to compromise any indemnity claim process on behalf of the Company Participating Equityholders Indemnifying Stockholders and to transact matters of litigation; (ii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Indemnification Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) receive funds, make payments of funds, and give receipts for funds, or appoint an agent or advisor for such purposes; (iv) do or refrain from doing any further act or deed on behalf of the Company Participating Equityholders that the Indemnification Representative deems necessary or appropriate in their discretion relating to the subject matter of this Agreement as fully and completely as the Company Participating Equityholders could do if personally present; (v) give and receive all notices required to be given or received by the Company Participating Equityholders under this Agreement; and (vi) receive service of process in connection with any claims under this Agreement. (b) All decisions and actions by the Indemnification Representative shall be binding upon all Company Participating EquityholdersAgreement or any related document or instrument, and no Company Participating Equityholder shall have the right to object, dissent, protest take all other actions that are either (i) necessary or otherwise contest the same. (c) Prior to the Effective Time, the Company shall pay $0 to the Indemnification Representative (the “Indemnification Representative’s Fund”), which Indemnification Representative’s Fund shall be maintained by the Indemnification Representative in a segregated account (the “Indemnification Representative’s Account”). The Indemnification Representative shall be reimbursed for reasonable out-of-pocket expenses incurred appropriate in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Indemnification Representative’s Fund. Upon the determination judgment of the Indemnification Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Indemnifying Stockholders from time to time upon not less than thirty (30) days prior written notice to Buyer; provided, however, that the Indemnification Representative’s Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund is no longer necessary agree to such removal and to the identity of the substituted agent. A vacancy in connection with indemnification claims that the position of Indemnification Representative may be brought hereunder, filled by the Indemnification Representative holders of a majority in interest of the Escrow Fund. No bond shall distribute to the Company Participating Equityholders (solely out be required of the Indemnification Representative’s Fund) the amount remaining in the Indemnification Representative’s Fund after payment of all of the Indemnification Representative’s out-of-pocket expenses incurred in connection with its services as Indemnification Representative (such amount, the “Residual Indemnification Representative’s Fund Amount”) in accordance with Section 2.6(b) hereof. The Indemnification Representative shall hold and disburse the Indemnification Representative’s Account in trust for all of the Company Participating Equityholders, and the Indemnification Representative’s Account shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. For tax purposes, the Indemnification Representative’s Account shall be treated as having been received and voluntarily set aside by the Company Participating Equityholders at the time of Closing. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account as a fee to the Indemnification Representative. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. The parties agree that the Indemnification Representative is not acting as a withholding agent or in any similar capacity in connection with the Indemnification Representative’s Account. If any tax reporting is required with respect to the ultimate distribution of any balance of the Indemnification Representative’s Account, then the Indemnification Representative will provide to Buyer or its designated agent, upon request, information regarding the amounts distributed to each Company Participating Equityholder, to be used by Buyer or its agent in completing any required tax reporting. Any portion of the Indemnification Representative’s Account that remains undeliverable or unclaimed after six months of the initial delivery attempt shall promptly be paid to Buyer and handled in the same manner as other unclaimed funds as provided in this Agreement. (d) The Indemnification Representative shall act for the Company Participating Equityholders on all of the matters set forth in this Agreement in the manner the Indemnification Representative believes to be in the best interest of the Company Participating Equityholders. The Indemnification Representative is authorized to act on behalf of the Company Participating Equityholders notwithstanding any dispute or disagreement among the Company Participating Equityholders. In taking any actions as Indemnification Representative, the Indemnification Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person the Indemnification Representative reasonably believes to be authorized thereunto. The Indemnification Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Indemnification Representative shall not be liable receive any compensation for its services. Notices or communications to any of the parties hereto or to any Company Participating Equityholder for anything done, omitted or suffered in good faith by from the Indemnification Representative based on such advice. The Indemnification Representative undertakes shall constitute notice to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against from the Indemnification Representative. Indemnifying Stockholders. (b) The Indemnification Representative shall not have any liability to any of the parties hereto or the Company Participating Equityholders be liable for any act done or omitted without gross negligence and or bad faith hereunder as Indemnification Representative while acting in good faithRepresentative. The Pursuant to the following sentence, and to the fullest extent permitted by applicable Law, the Indemnifying Stockholders shall be, severally based on such Indemnifying Stockholder’s pro rata share of the Merger Consideration and not jointly, obligated to indemnify the Indemnification Representative shall be indemnified by and hold the Company Participating Equityholders from and Indemnification Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Indemnification Representative and arising out of or in connection with the acceptance or administration of its duties hereunder from the Indemnification Representative’s Fund's duties hereunder, in each case as such loss, liability or expense is incurred or suffered, provided that in including the event it is finally adjudicated that reasonable fees and expenses of any such loss, liability or expense was primarily caused legal counsel retained by the bad faith of the Indemnification Representative, . At the Indemnification Representative will reimburse time of distribution to the Company Participating Equityholders Stockholders of any proceeds remaining in the amount of such loss, liability or expense attributable to such bad faith. In the event that the Indemnification Representative’s Fund is insufficient to fully reimburse the Indemnification Representative for such indemnified losses, liabilities or expensesEscrow Fund, the Indemnification Representative shall be entitled to deduct and retain withhold from the amount portion of the Escrow Fund included in such shortfall out distribution to pay and reimburse fees and expenses of third parties incurred or expected to be incurred in connection with its role as Indemnification Representative pursuant to this Agreement to the extent that the Indemnification Representative Reserve would be insufficient to pay and reimburse fees and expenses of third parties. (c) The grant of authority provided for in this Section 6.6: (i) is coupled with an interest and is being granted, in part, as an inducement to Buyer and Transitory Subsidiary to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of the Company or any Indemnifying Stockholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Indemnifying Stockholder of the whole or any fraction of his, her or its interest in the Escrow Fund. (d) In connection with the performance of its obligations hereunder and under the Escrow Agreement, the Indemnification Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the Indemnifying Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Indemnification Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder. (e) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Indemnification Representative hereunder or thereunder, (i) the Indemnification Representative and its agents, counsel, accountants and other representatives shall not assume any, and shall incur no, responsibility whatsoever (in each case, to the extent permitted by applicable law) to the Indemnifying Stockholders, Buyer or the Surviving Corporation by reason of any General error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow FundsAgreement or any such other agreement, NOL Tax Refund instrument or Contingent Consideration received document other than with respect to willful misconduct or gross negligence on behalf the part of the Indemnification Representative, and (ii) the Indemnification Representative shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Indemnification Representative that pursuant to such advice shall in no event subject the Indemnification Representative would otherwise to liability to the Indemnifying Stockholders, Buyer or the Surviving Corporation. (f) All of the immunities and powers granted to the Indemnification Representative under this Agreement shall survive the Closing and/or any termination of this Agreement and the Escrow Agreement. (g) A decision, act, consent or instruction of the Indemnification Representative, including an extension or waiver of this Agreement, shall constitute a decision of the Indemnifying Stockholders and shall be obligated final, binding and conclusive upon the Indemnifying Stockholders; and the Escrow Agent, Buyer and the Surviving Corporation may rely upon any such decision, act, consent or instruction of the Indemnification Representative as being the decision, act, consent or instruction of the Indemnifying Stockholders. The Escrow Agent, Buyer and the Surviving Corporation are hereby relieved from any Liability to cause any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Indemnification Representative. (h) The Indemnification Representative has all requisite power, authority and legal capacity to execute and deliver this Agreement and each other agreement, document, or instrument or certificate contemplated by this Agreement or to be distributed executed by the Indemnification Representative in connection with the consummation of the transactions contemplated by this Agreement (together with this Agreement, the “Indemnification Representative Documents”), and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and each of the Indemnification Representative Documents, the performance of its respective obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all required action on the part of the Indemnification Representative. This Agreement has been, and each of the Indemnification Representative Documents will be at or prior to the Company Participating Equityholders pursuant Closing, duly and validly executed and delivered by the Indemnification Representative and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and each of the Indemnification Representative Documents when so executed and delivered will constitute, legal, valid and binding obligations of the Indemnification Representative enforceable against it in accordance with their respective terms, subject to Section 2.6(bapplicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity); provided that nothing in this Section shall . (i) relieve For purposes of Section 6.3 and the Company Participating Equityholders from their last two sentences of Section 6.4, (i) if the Indemnifying Stockholders comprise the Indemnifying Party, any references to the Indemnifying Party (except provisions relating to an obligation to promptly pay such losses, liabilities make or expenses as they are suffered a right to receive any payments provided for in Section 6.3 or incurred or Section 6.4) shall be deemed to refer to the Indemnification Representative and (ii) prevent if the Indemnifying Stockholders comprise the Indemnified Party, any references to the Indemnified Party (except provisions relating to an obligation to make or a right to receive any payments provided for in Section 6.3 or Section 6.4) shall be deemed to refer to the Indemnification Representative from seeking any remedies available to it at law or otherwiseRepresentative.

Indemnification, Representative. (a) Shareholder From and after the Effective Time, Sigma Partners LLP shall serve as Indemnification Representative Services LLC (and shall act as agent for and on behalf of the “Indemnification Representative”) is hereby Seller stockholders, or his, her or their successors and shall be authorized to act on behalf of the Company Participating Equityholders in connection with the transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreement, Seller stockholders and to make payments take any and all actions required or permitted to Company Participating Equityholders pursuant to Section 2.6. In connection therewith, be taken by the Indemnification Representative is authorized under this Agreement with respect to do or refrain from doing all further acts any claims (including the settlement thereof) made for indemnification pursuant to this Article VI and things, and with respect to execute all such documents as any actions to be taken by the Indemnification Representative pursuant to the terms of the Escrow Agreement, which shall deem necessary or appropriateinclude, and shall have without limitation, the exercise of the power and authority to: : (i) act for EXECUTION COPY-APRIL 29, 2005 39 authorize the Company Participating Equityholders with regard to delivery of all matters pertaining to indemnification pursuant to Article IX of this Agreement, including the power to compromise any indemnity claim on behalf or a portion of the Company Participating Equityholders and to transact matters Escrow Funds in satisfaction of litigation; claims; (ii) execute agree to, negotiate, enter into settlements and deliver compromises of, and comply with orders of courts with respect to any claims for indemnification; and (iii) take all amendments, waivers, ancillary agreements, certificates and documents that actions necessary in the judgment of the Indemnification Representative deems necessary or appropriate in connection with for the consummation accomplishment of the transactions contemplated by this Agreement; (iii) receive funds, make payments of funds, and give receipts for funds, or appoint an agent or advisor for such purposes; (iv) do or refrain from doing any further act or deed on behalf of the Company Participating Equityholders that the Indemnification Representative deems necessary or appropriate in their discretion foregoing. In all matters relating to this Article VI as described in the subject matter of this Agreement as fully and completely as the Company Participating Equityholders could do if personally present; (v) give and receive all notices required to be given or received by the Company Participating Equityholders under this Agreement; and (vi) receive service of process in connection with any claims under this Agreement. (b) All decisions and actions by preceding sentence, the Indemnification Representative shall be binding upon all Company Participating Equityholders, and no Company Participating Equityholder shall have the right only party entitled to object, dissent, protest or otherwise contest assert the same. (c) Prior to the Effective Time, the Company shall pay $0 to the Indemnification Representative (the “Indemnification Representative’s Fund”), which Indemnification Representative’s Fund shall be maintained by the Indemnification Representative in a segregated account (the “Indemnification Representative’s Account”). The Indemnification Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Indemnification Representative’s Fund. Upon the determination rights of the Indemnification Representative that the Indemnification Representative’s Fund is no longer necessary in connection with indemnification claims that may be brought hereunder, the Indemnification Representative shall distribute to the Company Participating Equityholders (solely out of the Indemnification Representative’s Fund) the amount remaining in the Indemnification Representative’s Fund after payment of all of the Indemnification Representative’s out-of-pocket expenses incurred in connection with its services as Indemnification Representative (such amount, the “Residual Indemnification Representative’s Fund Amount”) in accordance with Section 2.6(b) hereof. The Indemnification Representative shall hold and disburse the Indemnification Representative’s Account in trust for all of the Company Participating Equityholders, and the Indemnification Representative’s Account shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. For tax purposes, the Indemnification Representative’s Account shall be treated as having been received and voluntarily set aside by the Company Participating Equityholders at the time of Closing. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account as a fee to the Indemnification Representative. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. The parties agree that the Indemnification Representative is not acting as a withholding agent or in any similar capacity in connection with the Indemnification Representative’s Account. If any tax reporting is required with respect to the ultimate distribution of any balance of the Indemnification Representative’s Account, then the Indemnification Representative will provide to Buyer or its designated agent, upon request, information regarding the amounts distributed to each Company Participating Equityholder, to be used by Buyer or its agent in completing any required tax reporting. Any portion of the Indemnification Representative’s Account that remains undeliverable or unclaimed after six months of the initial delivery attempt shall promptly be paid to Buyer and handled in the same manner as other unclaimed funds as provided in this Agreement. (d) The Indemnification Representative shall act for the Company Participating Equityholders on all of the matters set forth in this Agreement in the manner the Indemnification Representative believes to be in the best interest of the Company Participating Equityholders. The Indemnification Representative is authorized to act on behalf of the Company Participating Equityholders notwithstanding any dispute or disagreement among the Company Participating Equityholders. In taking any actions as Indemnification Representative, the Indemnification Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person the Indemnification Representative reasonably believes to be authorized thereunto. The Indemnification Representative may, in all questions arising hereunder, rely on the advice of counselSeller stockholders, and the Indemnification Representative shall not be liable to any perform all of the parties hereto or to any Company Participating Equityholder for anything done, omitted or suffered in good faith by obligations of the Indemnification Representative based on such adviceSeller stockholders hereunder. The Indemnification Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations Any Indemnified Person shall be read into this Agreement against entitled to rely on all statements, representations and decisions of the Indemnification Representative. The Indemnification Representative shall is not have entitled to amend this Agreement or take any liability actions relating to any this Agreement prior to the Effective Time. Following the Effective Time, the Indemnification Representative may amend this Agreement with the prior written consent of the parties hereto or holders of a majority-in-interest in the Company Participating Equityholders for any act done or omitted hereunder as Indemnification Representative while acting in good faithEscrow Funds. The Indemnification Representative shall be indemnified may resign upon not less than twenty (20) business days' prior written notice to Buyer and the Seller stockholders. The Seller stockholders by the Company Participating Equityholders from and against any loss, liability or expense arising out vote of or in connection with the acceptance or administration of its duties hereunder from the Indemnification Representative’s Fund, in each case as such loss, liability or expense is incurred or suffered, provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the bad faith a majority-in-interest of the Indemnification Representative, Escrow Funds held by Seller stockholders may remove the Indemnification Representative will reimburse from time to time upon not less than twenty (20) business days' prior written notice to Buyer. Any vacancy in the Company Participating Equityholders the amount of such loss, liability or expense attributable to such bad faith. In the event that the Indemnification Representative’s Fund is insufficient to fully reimburse the Indemnification Representative for such indemnified losses, liabilities or expenses, the Indemnification Representative shall be entitled to deduct and retain the amount of such shortfall out of any General Escrow Funds, NOL Tax Refund or Contingent Consideration received on behalf position of the Indemnification Representative that may be filled by the approval of the holders of a majority-in-interest in the Escrow Funds held by the Seller stockholders. Any successor Indemnification Representative would otherwise be obligated shall acknowledge in writing to cause to be distributed to Buyer his or her acceptance of the Company Participating Equityholders pursuant to Section 2.6(b); provided that nothing in this Section shall (i) relieve the Company Participating Equityholders from their obligation to promptly pay such losses, liabilities or expenses appointment as they are suffered or incurred or (ii) prevent the Indemnification Representative from seeking any remedies available to it at law or otherwiseRepresentative.

Indemnification, Representative. (a) Shareholder The Indemnification Representative Services LLC (the “Indemnification Representative”) is hereby authorized to act constituted and appointed as agent for and on behalf of the Company Participating Equityholders in connection Shareholders with the transactions contemplated by respect to this Agreement and in any litigation or arbitration involving this Agreement, and to make payments to Company Participating Equityholders pursuant to Section 2.6. In connection therewith, the Indemnification Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Indemnification Representative shall deem necessary or appropriate, and shall have the power and authority to: (i) act for the Company Participating Equityholders with regard to all matters pertaining to indemnification pursuant to Article IX of this Agreement, including the power to compromise any indemnity claim on behalf of the Company Participating Equityholders and to transact matters of litigation; (ii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Indemnification Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) receive funds, make payments of funds, and give receipts for funds, or appoint an agent or advisor for such purposes; (iv) do or refrain from doing any further act or deed on behalf of the Company Participating Equityholders that the Indemnification Representative deems necessary or appropriate in their discretion relating to the subject matter of this Agreement as fully and completely as the Company Participating Equityholders could do if personally present; (v) give and receive all notices required to be given or received by the Company Participating Equityholders under this Agreement; and (vi) receive service of process in connection with any claims under this Agreement. (b) All decisions and actions by the Indemnification Representative shall be binding upon all Company Participating Equityholders, and no Company Participating Equityholder shall have the right to object, dissent, protest or otherwise contest the same. (c) Prior to the Effective Time, the Company shall pay $0 to the Indemnification Representative (the “Indemnification Representative’s Fund”), which Indemnification Representative’s Fund shall be maintained by the Indemnification Representative in a segregated account (the “Indemnification Representative’s Account”)VI. The Indemnification Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Indemnification Representative’s Fund. Upon the determination of the Indemnification Representative that the Indemnification Representative’s Fund is incur no longer necessary in connection with indemnification claims that may be brought hereunder, the Indemnification Representative shall distribute liability to the Company Participating Equityholders (solely out of the Indemnification Representative’s Fund) the amount remaining in the Indemnification Representative’s Fund after payment of all of the Indemnification Representative’s out-of-pocket expenses incurred in connection with its services as Indemnification Representative (such amount, the “Residual Indemnification Representative’s Fund Amount”) in accordance with Section 2.6(b) hereof. The Indemnification Representative shall hold and disburse the Indemnification Representative’s Account in trust for all of the Company Participating Equityholders, and the Indemnification Representative’s Account shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. For tax purposes, the Indemnification Representative’s Account shall be treated as having been received and voluntarily set aside by the Company Participating Equityholders at the time of Closing. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account as a fee to the Indemnification Representative. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. The parties agree that the Indemnification Representative is not acting as a withholding agent or in any similar capacity in connection with the Indemnification Representative’s Account. If any tax reporting is required Indemnifying Shareholders with respect to the ultimate distribution of any balance of the Indemnification Representative’s Accountaction taken or suffered by he, then the Indemnification Representative will provide she or it in reliance upon any note, direction, instruction, consent, statement or other documents believed by he, she or it to Buyer be genuinely and duly authorized, nor for other action or inaction except his, her or its designated agent, upon request, information regarding the amounts distributed to each Company Participating Equityholder, to be used by Buyer own willful misconduct or its agent in completing any required tax reporting. Any portion of the Indemnification Representative’s Account that remains undeliverable or unclaimed after six months of the initial delivery attempt shall promptly be paid to Buyer and handled in the same manner as other unclaimed funds as provided in this Agreement. (d) The Indemnification Representative shall act for the Company Participating Equityholders on all of the matters set forth in this Agreement in the manner the Indemnification Representative believes to be in the best interest of the Company Participating Equityholders. The Indemnification Representative is authorized to act on behalf of the Company Participating Equityholders notwithstanding any dispute or disagreement among the Company Participating Equityholders. In taking any actions as Indemnification Representative, the Indemnification Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person the Indemnification Representative reasonably believes to be authorized thereuntogross negligence. The Indemnification Representative may, in all questions arising hereunderunder this Agreement, rely on the advice of counsel, counsel and the Indemnification Representative shall not be liable to any of the parties hereto or to any Company Participating Equityholder Indemnifying Shareholders for anything done, omitted or suffered in good faith by the Indemnification Representative based on such advice. The Indemnification Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Indemnification Representative. The Indemnification Representative shall not have any liability to any of the parties hereto or the Company Participating Equityholders for any act done or omitted hereunder as Indemnification Representative while acting in good faith. The Indemnification Representative shall be indemnified by the Company Participating Equityholders from and against any loss, liability or expense arising out of or in connection with the acceptance or administration of its duties hereunder from the Indemnification Representative’s Fund, in each case as such loss, liability or expense is incurred or suffered, provided that in . (b) In the event it is finally adjudicated that any such loss, liability of (i) the death or expense was primarily caused by the bad faith permanent disability of the Indemnification Representative, (ii) his, her or its resignation as an Indemnification Representative, or (iii) upon the majority vote of the Indemnifying Shareholders (as provided below), a successor Indemnification Representative will reimburse shall be elected by a majority vote of the Indemnifying Shareholders, with each such Indemnifying Shareholder (or his, her or its successors or assigns) to be given a vote equal to the number of votes represented by the shares of stock of the Company Participating Equityholders held by such Indemnifying Shareholder immediately prior to the amount Effective Time. Each successor Indemnification Representative shall have all of such lossthe power, liability or expense attributable to such bad faith. In authority, rights and privileges conferred by this Agreement upon the event that the original Indemnification Representative’s Fund is insufficient , and the term "Indemnification Representative" as used herein shall be deemed to fully reimburse the include successor Indemnification Representative. (c) The Indemnification Representative for such indemnified lossesshall have full power and authority to represent the Indemnifying Shareholders, liabilities or expensesand their successors, with respect to all matters arising under this Article VI and all actions taken by any Indemnification Representative hereunder shall be binding upon the Indemnifying Shareholders, and their successors, as if expressly confirmed and ratified in writing by each of them. Without limiting the generality of the foregoing, the Indemnification Representative shall have full power and authority to interpret all of the terms and provisions of this Article VI, to compromise any claims asserted hereunder and to authorize any release of the Escrow Shares to be entitled to deduct and retain the amount of such shortfall out of any General Escrow Fundsmade with respect thereto, NOL Tax Refund or Contingent Consideration received on behalf of the Indemnification Representative that the Indemnification Representative would otherwise be obligated to cause to be distributed to the Company Participating Equityholders pursuant to Section 2.6(b); provided that nothing in this Section shall (i) relieve the Company Participating Equityholders from Indemnifying Shareholders and their obligation to promptly pay such losses, liabilities or expenses as they are suffered or incurred or (ii) prevent the Indemnification Representative from seeking any remedies available to it at law or otherwisesuccessors.

Indemnification, Representative. (a) Shareholder Representative Services LLC In order to administer efficiently the matters set forth in Article IX of this Agreement and the Escrow Agreement, the person designated in the Escrow Agreement by the Company no later than five (5) days prior to the Closing Date, and approved by Parent (which approval shall not be unreasonably withheld), as the indemnification representative is hereby designated the indemnification representative (the “"INDEMNIFICATION REPRESENTATIVE"). (b) The Indemnification Representative”Representative will (i) is hereby authorized to act on behalf of the Company Participating Equityholders take all action necessary in connection with the transactions contemplated by this Agreement matters set forth in Article IX and in any litigation or arbitration involving this the Escrow Agreement, and to make payments to Company Participating Equityholders pursuant to Section 2.6. In connection therewith, the Indemnification Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Indemnification Representative shall deem necessary or appropriate, and shall have the power and authority to: (i) act for the Company Participating Equityholders with regard to all matters pertaining to indemnification pursuant to Article IX of this Agreement, including the power to compromise any indemnity claim on behalf of the Company Participating Equityholders and to transact matters of litigation; (ii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Indemnification Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) receive funds, make payments of funds, and give receipts for funds, or appoint an agent or advisor for such purposes; (iv) do or refrain from doing any further act or deed on behalf of the Company Participating Equityholders that the Indemnification Representative deems necessary or appropriate in their discretion relating to the subject matter of this Agreement as fully and completely as the Company Participating Equityholders could do if personally present; (v) give and receive all notices required to be given under this Agreement or received the Escrow Agreement and (iii) take any and all additional action as is contemplated to be taken by the Company Participating Equityholders under terms of Article IX of this Agreement; and (vi) receive service of process in connection with any claims under this Agreement or the Escrow Agreement. (bc) In the event that the Indemnification Representative dies, becomes legally incapacitated or resigns from such position, then there shall be designated a replacement indemnification representative to be appointed and approved by the former holders of Company Capital Stock who prior to the Effective Time held a majority of the Company Common Stock on an as converted basis and who shall fill such vacancy and shall be deemed to be the Indemnification Representative for all purposes of this Agreement; provided, however, that no change in the Indemnification Representative shall be effective until Parent receives evidence reasonably satisfactory to it of such Indemnification Representative's death, incapacitation or resignation. (d) Upon approval and adoption of this Agreement by the Company Stockholders, such Company Stockholders agree, as a result of such approval and adoption that: (i) All decisions and actions by the Indemnification Representative shall be binding upon all Company Participating Equityholderswith respect to the Escrow Shares, and no Company Participating Equityholder Stockholder shall have the right to object, dissent, protest or otherwise contest the same. (cii) Prior Parent shall be able to rely conclusively on the Effective Timeinstructions and decisions of the Indemnification Representative as to any actions required or permitted to be taken by the Indemnification Representative hereunder, and no party hereunder, or any Company Stockholder, shall have any cause of action against Parent for any action taken by Parent in reliance upon the instructions or decisions of the Indemnification Representative; (iii) all actions, decisions and instructions of the Indemnification Representative with respect to Article IX of this Agreement, the Escrow Agreement and the Escrow Shares shall be conclusive and binding upon all of the Company Stockholders and no Company Stockholder shall pay $0 have any cause of action against the Indemnification Representative for any action taken, decision made or instruction given by the Indemnification Representative under this Agreement, except for fraud or willful breach of this Agreement by the Indemnification Representative; (iv) remedies available at law for any breach of the provisions of this Section 3.4 are inadequate; therefore, Parent shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if Parent brings an action to enforce the provisions of this Section 3.4; and (e) All fees and expenses incurred by the Indemnification Representative shall be paid out of the Escrow Shares by releasing to the Indemnification Representative (that number of Escrow Shares having a Value equal to the “Indemnification Representative’s Fund”)full amount of all such fees and expenses; provided, which Indemnification Representative’s Fund however, any such claim for expenses shall be maintained by the Indemnification Representative in a segregated account (the “Indemnification Representative’s Account”). The Indemnification Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Indemnification Representative’s Fund. Upon the determination of the Indemnification Representative that the Indemnification Representative’s Fund is no longer necessary in connection with indemnification claims that may be brought hereunder, the Indemnification Representative shall distribute subordinate to the Company Participating Equityholders (solely out of the Indemnification Representative’s Fund) the amount remaining in the Indemnification Representative’s Fund after payment of all of the Indemnification Representative’s out-of-pocket expenses incurred in connection with its services as Indemnification Representative (such amount, the “Residual Indemnification Representative’s Fund Amount”) in accordance with Section 2.6(b) hereof. The Indemnification Representative shall hold and disburse the Indemnification Representative’s Account in trust for all of the Company Participating Equityholders, and the Indemnification Representative’s Account shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as by a result of its gross negligence or willful misconduct. For tax purposes, the Indemnification Representative’s Account shall be treated as having been received and voluntarily set aside by the Company Participating Equityholders at the time of Closing. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account as a fee to the Indemnification Representative. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. The parties agree that the Indemnification Representative is not acting as a withholding agent or in any similar capacity in connection with the Indemnification Representative’s Account. If any tax reporting is required with respect to the ultimate distribution of any balance of the Indemnification Representative’s Account, then the Indemnification Representative will provide to Buyer or its designated agent, upon request, information regarding the amounts distributed to each Company Participating Equityholder, to be used by Buyer or its agent in completing any required tax reporting. Any portion of the Indemnification Representative’s Account that remains undeliverable or unclaimed after six months of the initial delivery attempt shall promptly be paid to Buyer and handled in the same manner as other unclaimed funds as provided in this AgreementParent Indemnified Party under Article IX hereof. (df) The Indemnification Representative Company shall act for fully and completely disclose the Company Participating Equityholders on all of the matters set forth in this Agreement in the manner the Indemnification Representative believes to be in the best interest of the Company Participating Equityholders. The Indemnification Representative is authorized to act on behalf of the Company Participating Equityholders notwithstanding any dispute or disagreement among the Company Participating Equityholders. In taking any actions as Indemnification Representative, the Indemnification Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person the Indemnification Representative reasonably believes to be authorized thereunto. The Indemnification Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Indemnification Representative shall not be liable to any of the parties hereto or to any Company Participating Equityholder for anything done, omitted or suffered in good faith by the Indemnification Representative based on such advice. The Indemnification Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Indemnification Representative. The Indemnification Representative shall not have any liability to any of the parties hereto or the Company Participating Equityholders for any act done or omitted hereunder as Indemnification Representative while acting in good faith. The Indemnification Representative shall be indemnified by the Company Participating Equityholders from and against any loss, liability or expense arising out of or in connection with the acceptance or administration of its duties hereunder from the Indemnification Representative’s Fund, in each case as such loss, liability or expense is incurred or suffered, provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the bad faith proposed appointment of the Indemnification Representative, as well as the Indemnification Representative will reimburse the Company Participating Equityholders the amount provisions of such lossthis Section 3.4, liability or expense attributable to such bad faith. In the event that the Indemnification Representative’s Fund is insufficient to fully reimburse the Indemnification Representative for such indemnified losses, liabilities or expenses, the Indemnification Representative shall be entitled to deduct and retain the amount of such shortfall out of any General Escrow Funds, NOL Tax Refund or Contingent Consideration received on behalf of the Indemnification Representative that the Indemnification Representative would otherwise be obligated to cause to be distributed to the Company Participating Equityholders pursuant Stockholders in connection with their consideration of this Agreement and the Merger and each Company Stockholder, by virtue of the approval and adoption of this Agreement and the Merger is consenting to Section 2.6(b); provided that nothing in this Section shall (i) relieve the Company Participating Equityholders from their obligation to promptly pay such losses, liabilities or expenses as they are suffered or incurred or (ii) prevent the Indemnification Representative from seeking any remedies available to it at law or otherwise3.4.

Indemnification, Representative. (a) Shareholder Representative Services LLC Pursuant to the terms hereof, Xxxx X. Xxxxx, is hereby constituted and appointed as agent (the “"Indemnification Representative”") is hereby authorized to act for and on behalf of the Company Participating Equityholders Principals to give and receive notices and communications, to authorize delivery to Parent of Parent Common Stock or other property from the Escrow Fund in connection satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with the transactions contemplated by this Agreement orders of courts and in any litigation or arbitration involving this Agreementawards of arbitrators with respect to such claims, and to make payments to Company Participating Equityholders pursuant to Section 2.6. In connection therewith, the Indemnification Representative is authorized to do or refrain from doing take all further acts and things, and to execute all such documents as the Indemnification Representative shall deem necessary or appropriate, and shall have the power and authority to: (i) act for the Company Participating Equityholders with regard to all matters pertaining to indemnification pursuant to Article IX of this Agreement, including the power to compromise any indemnity claim on behalf of the Company Participating Equityholders and to transact matters of litigation; (ii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Indemnification Representative deems actions necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) receive funds, make payments of funds, and give receipts for funds, or appoint an agent or advisor for such purposes; (iv) do or refrain from doing any further act or deed on behalf of the Company Participating Equityholders that the Indemnification Representative deems necessary or appropriate in their discretion relating to the subject matter of this Agreement as fully and completely as the Company Participating Equityholders could do if personally present; (v) give and receive all notices required to be given or received by the Company Participating Equityholders under this Agreement; and (vi) receive service of process in connection with any claims under this Agreement. (b) All decisions and actions by the Indemnification Representative shall be binding upon all Company Participating Equityholders, and no Company Participating Equityholder shall have the right to object, dissent, protest or otherwise contest the same. (c) Prior to the Effective Time, the Company shall pay $0 to the Indemnification Representative (the “Indemnification Representative’s Fund”), which Indemnification Representative’s Fund shall be maintained by the Indemnification Representative in a segregated account (the “Indemnification Representative’s Account”). The Indemnification Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Indemnification Representative’s Fund. Upon the determination judgment of the Indemnification Representative for the accomplishment of the foregoing. In the event that Xxxx X. Xxxxx can no longer act as Indemnification Representative, Xxxxxxx X. Xxxxx shall act in such capacity; provided, however, that if neither Xxxx X. Xxxxx or Xxxxxxx X. Xxxxx can act as the Indemnification Representative’s Fund is no longer necessary in connection with indemnification claims that may , holders of a majority of Parent Common Stock issued at the Closing shall elect a replacement Indemnification Representative. No bond shall be brought hereunder, the Indemnification Representative shall distribute to the Company Participating Equityholders (solely out required of the Indemnification Representative’s Fund) the amount remaining in the Indemnification Representative’s Fund after payment of all of the Indemnification Representative’s out-of-pocket expenses incurred in connection with its services as Indemnification Representative (such amount, the “Residual Indemnification Representative’s Fund Amount”) in accordance with Section 2.6(b) hereof. The Indemnification Representative shall hold and disburse the Indemnification Representative’s Account in trust for all of the Company Participating Equityholders, and the Indemnification Representative’s Account shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. For tax purposes, the Indemnification Representative’s Account shall be treated as having been received and voluntarily set aside by the Company Participating Equityholders at the time of Closing. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account as a fee to the Indemnification Representative. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. The parties agree that the Indemnification Representative is not acting as a withholding agent or in any similar capacity in connection with the Indemnification Representative’s Account. If any tax reporting is required with respect to the ultimate distribution of any balance of the Indemnification Representative’s Account, then the Indemnification Representative will provide to Buyer or its designated agent, upon request, information regarding the amounts distributed to each Company Participating Equityholder, to be used by Buyer or its agent in completing any required tax reporting. Any portion of the Indemnification Representative’s Account that remains undeliverable or unclaimed after six months of the initial delivery attempt shall promptly be paid to Buyer and handled in the same manner as other unclaimed funds as provided in this Agreement. (d) The Indemnification Representative shall act for the Company Participating Equityholders on all of the matters set forth in this Agreement in the manner the Indemnification Representative believes to be in the best interest of the Company Participating Equityholders. The Indemnification Representative is authorized to act on behalf of the Company Participating Equityholders notwithstanding any dispute or disagreement among the Company Participating Equityholders. In taking any actions as Indemnification Representative, the Indemnification Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person the Indemnification Representative reasonably believes to be authorized thereunto. The Indemnification Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Indemnification Representative shall not be liable receive no compensation for his services. Notices or communications to any of the parties hereto or to any Company Participating Equityholder for anything done, omitted or suffered in good faith by from the Indemnification Representative based on such advice. The Indemnification Representative undertakes shall constitute notice to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against from each of the Indemnification Representative. Principals. (b) The Indemnification Representative shall not have any liability to any of the parties hereto or the Company Participating Equityholders be liable for any act done or omitted hereunder as Indemnification Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Principals shall jointly and severally indemnify the Indemnification Representative shall be indemnified by the Company Participating Equityholders from and hold him or it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Indemnification Representative and arising out of or in connection with the acceptance or administration of his or its duties hereunder from the Indemnification Representative’s Fund, in each case hereunder. (c) Xxxx X. Xxxxx hereby agrees to act as such loss, liability or expense is incurred or suffered, provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the bad faith of the Indemnification Representative, the Indemnification Representative will reimburse the Company Participating Equityholders the amount of such loss, liability or expense attributable to such bad faith. In the event that the Indemnification Representative’s Fund is insufficient to fully reimburse the Indemnification Representative for such indemnified losses, liabilities or expenses, the Indemnification Representative shall be entitled to deduct and retain the amount of such shortfall out of any General Escrow Funds, NOL Tax Refund or Contingent Consideration received on behalf of the Indemnification Representative that the Indemnification Representative would otherwise be obligated to cause to be distributed pursuant to the Company Participating Equityholders pursuant to Section 2.6(b); provided that nothing in this Section shall (i) relieve the Company Participating Equityholders from their obligation to promptly pay such losses, liabilities or expenses as they are suffered or incurred or (ii) prevent the Indemnification Representative from seeking any remedies available to it at law or otherwiseterms hereof.

Indemnification, Representative. (a) Shareholder Representative Services LLC From and after the Effective Time, TVM V Life Science Ventures GmbH & Co. shall serve as indemnification representative and shall act as agent for and on behalf of the Company Stockholders, or his or her successor (the “Indemnification Representative”) is hereby and shall be authorized to act on behalf of the Company Participating Equityholders in connection with the transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreement, Stockholders and to make payments take any and all actions required or permitted to Company Participating Equityholders pursuant to Section 2.6. In connection therewith, be taken by the Indemnification Representative is authorized under this Agreement with respect to do or refrain from doing all further acts any claims (including the settlement thereof) made by a Compensated Person for indemnification pursuant to this Article VIII and things, and with respect to execute all such documents as any actions to be taken by the Indemnification Representative pursuant to the terms of the Escrow Agreement, which shall deem necessary or appropriateinclude, and shall have without limitation, the exercise of the power and authority to: : (i) act for authorize the Company Participating Equityholders with regard delivery of Escrow Shares to all matters pertaining to indemnification pursuant to Article IX a Compensated Person in satisfaction of this Agreement, including the power to compromise any indemnity claim on behalf of the Company Participating Equityholders and to transact matters of litigation; claims by a Compensated Person; (ii) execute agree to, negotiate, enter into settlements and deliver compromises of, and comply with orders of courts with respect to any claims for indemnification; and (iii) take all amendments, waivers, ancillary agreements, certificates and documents that actions necessary in the judgment of the Indemnification Representative deems necessary or appropriate in connection with for the consummation accomplishment of the transactions contemplated by this Agreement; (iii) receive funds, make payments of funds, and give receipts for funds, or appoint an agent or advisor for such purposes; (iv) do or refrain from doing any further act or deed on behalf of the Company Participating Equityholders that the Indemnification Representative deems necessary or appropriate in their discretion foregoing. In all matters relating to this Article VIII as described in the subject matter of this Agreement as fully and completely as the Company Participating Equityholders could do if personally present; (v) give and receive all notices required to be given or received by the Company Participating Equityholders under this Agreement; and (vi) receive service of process in connection with any claims under this Agreement. (b) All decisions and actions by preceding sentence, the Indemnification Representative shall be binding upon all Company Participating Equityholders, and no Company Participating Equityholder shall have the right only party entitled to object, dissent, protest or otherwise contest assert the same. (c) Prior to the Effective Time, the Company shall pay $0 to the Indemnification Representative (the “Indemnification Representative’s Fund”), which Indemnification Representative’s Fund shall be maintained by the Indemnification Representative in a segregated account (the “Indemnification Representative’s Account”). The Indemnification Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Indemnification Representative’s Fund. Upon the determination of the Indemnification Representative that the Indemnification Representative’s Fund is no longer necessary in connection with indemnification claims that may be brought hereunder, the Indemnification Representative shall distribute to the Company Participating Equityholders (solely out of the Indemnification Representative’s Fund) the amount remaining in the Indemnification Representative’s Fund after payment of all of the Indemnification Representative’s out-of-pocket expenses incurred in connection with its services as Indemnification Representative (such amount, the “Residual Indemnification Representative’s Fund Amount”) in accordance with Section 2.6(b) hereof. The Indemnification Representative shall hold and disburse the Indemnification Representative’s Account in trust for all rights of the Company Participating Equityholders, and the Indemnification Representative’s Account shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. For tax purposes, the Indemnification Representative’s Account shall be treated as having been received and voluntarily set aside by the Company Participating Equityholders at the time of Closing. The Company Participating Equityholders shall not receive interest or other earnings on the Indemnification Representative’s Account and the Company Participating Equityholders irrevocably transfer and assign to the Indemnification Representative any ownership right that they may have in any interest that may accrue on funds held in the Indemnification Representative’s Account as a fee to the Indemnification Representative. The Company Participating Equityholders acknowledge that the Indemnification Representative is not providing any investment supervision, recommendations or advice. The Indemnification Representative shall have no responsibility or liability for any loss of principal of the Indemnification Representative’s Account other than as a result of its gross negligence or willful misconduct. The parties agree that the Indemnification Representative is not acting as a withholding agent or in any similar capacity in connection with the Indemnification Representative’s Account. If any tax reporting is required with respect to the ultimate distribution of any balance of the Indemnification Representative’s Account, then the Indemnification Representative will provide to Buyer or its designated agent, upon request, information regarding the amounts distributed to each Company Participating Equityholder, to be used by Buyer or its agent in completing any required tax reporting. Any portion of the Indemnification Representative’s Account that remains undeliverable or unclaimed after six months of the initial delivery attempt shall promptly be paid to Buyer and handled in the same manner as other unclaimed funds as provided in this Agreement. (d) The Indemnification Representative shall act for the Company Participating Equityholders on all of the matters set forth in this Agreement in the manner the Indemnification Representative believes to be in the best interest of the Company Participating Equityholders. The Indemnification Representative is authorized to act on behalf of the Company Participating Equityholders notwithstanding any dispute or disagreement among the Company Participating Equityholders. In taking any actions as Indemnification Representative, the Indemnification Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person the Indemnification Representative reasonably believes to be authorized thereunto. The Indemnification Representative may, in all questions arising hereunder, rely on the advice of counselStockholders, and the Indemnification Representative shall not be liable to any perform all of the parties hereto or to any obligations of the Company Participating Equityholder for anything done, omitted or suffered in good faith by the Indemnification Representative based on such adviceStockholders hereunder. The Indemnification Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations Any Compensated Person shall be read into this Agreement against entitled to rely on all statements, representations and decisions of the Indemnification Representative. The Indemnification Representative shall is not have entitled to amend this Agreement or take any liability actions relating to any this Agreement prior to the Effective Time. Following the Effective Time, the Indemnification Representative may amend this Agreement with the prior written consent of the parties hereto or holders of a majority-in-interest in the Company Participating Equityholders for any act done or omitted hereunder as Indemnification Representative while acting in good faithMerger Shares. The Indemnification Representative shall be indemnified may resign upon not less than twenty (20) Business Days’ prior written notice to Parent and the Company Stockholders. The Company Stockholders by the vote of a majority-in-interest of the Merger Shares held by the Company Participating Equityholders from and against any loss, liability or expense arising out of or in connection with the acceptance or administration of its duties hereunder from the Indemnification Representative’s Fund, in each case as such loss, liability or expense is incurred or suffered, provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the bad faith of the Indemnification Representative, Stockholders may remove the Indemnification Representative will reimburse from time to time upon not less than twenty (20) Business Days’ prior written notice to Parent. Any vacancy in the Company Participating Equityholders the amount of such loss, liability or expense attributable to such bad faith. In the event that the Indemnification Representative’s Fund is insufficient to fully reimburse the Indemnification Representative for such indemnified losses, liabilities or expenses, the Indemnification Representative shall be entitled to deduct and retain the amount of such shortfall out of any General Escrow Funds, NOL Tax Refund or Contingent Consideration received on behalf position of the Indemnification Representative that may be filled by the approval of the holders of a majority-in-interest in the Merger Shares held by the Company Stockholders. Any successor Indemnification Representative shall acknowledge in writing to Parent his or her acceptance of the appointment as Indemnification Representative. The Key Stockholders shall have appointed the Indemnification Representative would otherwise be obligated to cause to be distributed pursuant to the provisions of the Voting Agreement and the other Company Participating Equityholders pursuant to Section 2.6(b); provided that nothing in this Section shall (i) relieve the Company Participating Equityholders from their obligation to promptly pay such losses, liabilities or expenses as they are suffered or incurred or (ii) prevent Stockholders will appoint the Indemnification Representative from seeking any remedies available to it at law or otherwiseby separate consent.