Common use of Payment of Claims Clause in Contracts

Payment of Claims. If any amount is, in good faith, determined, agreed or deemed agreed to be owed to any Indemnified Person in accordance with this Section 10.7, then (i) within three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Account), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, then, subject to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified Party.

Payment of Claims. (a) If any amount is, in good faith, determined, agreed or deemed agreed to be owed to any Indemnified Person in accordance with this Section 10.7, then (i) within three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions a Claims Notice was delivered to the Escrow Agent instructing and no Objection Notice was delivered to the Escrow Agent to release such amount within the Objection Period, or an Objection Notice was delivered to the Indemnified Party Escrow Agent within the Objection Period but such Objection Notice was only with respect to a portion of the Losses claimed in the Claims Notice, the amount available to be drawn under the Letter of Credit by the Escrow Agent and the aggregate principal amount of the Company Shareholder Notes held in the Escrow Fund shall be reduced proportionally based on the respective Indemnification Percentages having a value equal to (i) the amount of the Losses set forth in such Claims Notice, if no Objection Notice was delivered to the Escrow Agent, or (ii) the amount of the portion of the Losses set forth in such Claims Notice to which no objection was made, if an Objection Notice was delivered to the Escrow Agent and, if such Losses specified in clauses (i) or (ii) were Escrow Specified Losses and if such reduction in the amount available to be drawn under the Letter of Credit and the aggregate principal amount of the Company Shareholder Notes from the Escrow Fund is insufficient to fully satisfy all such Losses, each Principal Shareholder obligated to indemnify Purchaser (on behalf of itself or any other Purchaser Indemnified Person) shall promptly wire transfer to Purchaser an amount of cash equal to its Indemnification Percentage of the value of any amount by which the Escrow Account (Fund is insufficient to fully satisfy all such Losses, subject to any applicable limitations in Section 9.3(c); provided, however, that, to the extent that the amount of the Losses set forth in the Claims Notice (or portion thereof) is an estimate, the Indemnified Persons shall not be so entitled to receive, and the Escrow Agent shall not deliver, funds in respect of such portions of such estimated Losses unless and until the amount of such estimated Losses is finally determined. (b) If (i) a Claims Notice was delivered directly to one or more Company Shareholders in the case of a Liability Claim under Section 9.2(a) (an “Individual Claim”) and no Objection Notice was delivered to Purchaser by such Company Shareholder(s) within the Objection Period, or (ii) a Claims Notice was delivered directly to one or more Company Shareholders in the case of an Individual Claim within the Objection Period but such Objection Notice was only with respect to a portion of the Losses claimed in the Claims Notice, then promptly, and in no event later than ten (10) days after expiration of the Objection Period, each such Company Shareholder shall wire transfer to Purchaser the applicable portion of the amount of such Losses set forth in the Claims Notice for which such Company Shareholder is responsible under Section 9.2, subject to any applicable limitations in Article 9; provided, however, that if the amount of the Losses stated in the Claims Notice (or any portion thereof) is an estimate, then such Company Shareholder(s) will be required to make such payment within five days after the date that the amount of Losses is finally determined. (c) If (i) a Claims Notice was delivered to Purchaser and no Objection Notice was delivered to the Class A Holder within the Objection Period, then promptly, and in no event later than ten (10) days after expiration of the Objection Period, Purchaser shall wire transfer to the Company Indemnified Person(s) the amount of such Losses set forth in the Claims Notice from which Purchaser is responsible under Section 9.2 subject to any applicable limitations in Article 9; provided, however, that if the amount of the Losses stated in the Claims Notice (or any portion thereof) is an estimate, then Purchaser will be required to make such payment within five (5) days after the date that the amount of Losses is finally determined. (d) If an Objection Notice is delivered within the Objection Period: (i) In the case of Losses claimed under Section 9.1, if an agreement between the Class A Holder and Purchaser is reached during the Response Period or in accordance with Section 9.7(b) or otherwise, a memorandum setting forth such agreement shall be prepared and signed by each of Purchaser and the Class A Holder. A copy of the memorandum setting forth the agreement shall be delivered to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and shall reduce the amount available to be drawn under the Letter of Credit and the aggregate principal amount of the Company Shareholder Notes in the Escrow Fund as soon as practicable in accordance with the terms of such memorandum. In addition, if such Losses were Escrow Specified Losses and if the value of the reduction in the amount available to be drawn under the Letter of Credit and the aggregate principal amount of the Company Shareholder Notes from the Escrow Fund set forth in such memorandum is insufficient to fully satisfy all such Losses, each Company Shareholder from which Purchaser (on behalf of itself or any other Purchaser Indemnified Person) seeks recovery (without duplicative recoveries) shall promptly wire transfer to Purchaser an amount of cash equal to its Indemnification Percentage of the value of any amount by which the Escrow AccountFund is insufficient to fully satisfy all such Losses, subject to any applicable limitations in Section 9.3(c). (ii) In the case of an Individual Claim, if an agreement between the applicable Company Shareholder(s) and Purchaser is reached during the Response Period or in accordance with Section 9.7(b) or otherwise, a memorandum setting forth such agreement shall be prepared and signed by each of such Company Shareholder(s) and Purchaser. Within ten (10) Business Days of the date of such memorandum, such Company Shareholder(s) shall wire transfer to Purchaser (on behalf of the applicable Indemnified Person(s)) the amount of cash agreed to be delivered to Purchaser (on behalf of the applicable Indemnified Person(s)) in the memorandum. (iii) In the case of Losses claimed under Section 9.1, if a determination is made through arbitration in accordance with Sections 9.7(c) and Section 10.12, a copy of the determination shall be delivered to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such decision and, in accordance with Section 9.2(e), in each case shall reduce the amount available to be released drawn under the Letter of Credit and the aggregate principal amount of Company Shareholder Notes in the same proportion Escrow Fund as soon as practicable from the Escrow Fund in accordance with the terms of such determination. In addition, if such Losses are Escrow Specified Losses, and if the value of the reduction in the amount available to be drawn under the Letter of Credit and the aggregate principal amount of the Company Shareholder Notes from the Escrow Fund set forth in such determination is insufficient to fully satisfy all such Losses, each Company Shareholder from which Purchaser (on behalf of itself or any other Purchaser Indemnified Person) seeks recovery shall, subject to any applicable limitations in Section 9.3(c), promptly wire transfer to Purchaser an amount of cash and shares as were contributed equal to the Indemnification Escrow Accountamount by which such Losses exceed the value of such distributions. (iv) In the case of an Individual Claim, it being understood that for purposes if a determination is made through arbitration in accordance with Sections 9.7(c) and Section 10.12, within ten (10) Business Days of this such determination the applicable Company Shareholder(s) shall deliver an amount of cash to Purchaser in accordance with the terms of such determination. (v) In the case of a Liability Claim under Section 10.7(c9.2(b), any share (i) if an agreement between Purchaser and the applicable Indemnified Person(s) is reached during the Response Period or in accordance with Section 9.7(b) or otherwise, a memorandum setting forth such agreement shall be prepared and signed by each and within ten (10) Business Days of Parent Common Stock that is released the date of such memorandum, Purchaser shall wire transfer to the applicable Indemnified Party Person(s) the amount of cash agreed to in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price memorandum and (ii) if the amount remaining a determination is made through arbitration in the Indemnification Escrow Account is insufficient to cover the full amount that is determinedaccordance with Sections 9.7(c) and Section 10.12, agreed or deemed agreed to be owed to such Indemnified Party, then, subject to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following Business Days of such decision Purchaser shall, subject to any applicable limitations in Section 9.3(d)(ii), deliver an amount of cash to the date applicable Indemnified Persons in accordance with the terms of such determination. (e) Notwithstanding anything to the contrary in this Agreement, the Company Shareholders do not have any individual right to object to any claim made in a Claims Notice under this Article 9 (except for an Individual Claim, and then only the Company Shareholder(s) to whom such Claims Notice was delivered shall have the individual right to object in accordance with this Article 9) and, except as aforesaid, any and all claims made in Claims Notice on behalf of the Indemnified Persons may be objected to only by the Class A Holder. (f) Notwithstanding anything to the contrary contained in this Section 9.8, if any Principal Shareholder that is a Class C Note Consideration Holder is required to pay any amount under this Section 9.8, then such amount is determined, agreed or deemed agreed shall be paid as follows: such Principal Shareholder shall promptly wire transfer to be owed, and each Indemnifying Party shall thereafter promptly pay Purchaser an amount of cash and/or forfeit shares up to the amount received by such Principal Shareholder under Article 2 of Parent Common Stock having a value (based on the Collared Stock Price) equal this Agreement prior to such Indemnifying Party’s pro rata portion (based on histime, her or its Applicable Percentage) and, in the event that such amount of cash so received is insufficient to fully satisfy all such Losses, Purchaser shall have the right to exercise the set-off provisions, if and to the extent set-off is available, for the amount of such shortfall shortfall, first, under the Company Shareholder Note delivered to the Escrow Agent on behalf of such Indemnified PartyPrincipal Shareholder at the Closing pursuant to Section 2.3(a)(iv), and second, under the Company Shareholder Note received by such Principal Shareholder at the Closing pursuant to Section 2.3(a)(v).

Payment of Claims. If (i) Subject to the other limitations contained in this ARTICLE VI, any amount is, in good faith, determined, agreed or deemed agreed to be owed amounts owing to any Parent Indemnified Person Party shall be paid solely as follows: (A) pursuant to Section 6.1(a)(i)1) (other than with respect to a Fundamental Representation) shall be paid (x) first, with respect to any Losses included in the Stockholder Retention Amount, via offset against any portion of the Earnout Amount payable pursuant to Section 1.5, and (y) second, with respect to amounts above the Retention, under and in accordance with the terms of the R&W Policy; (B) pursuant to Section 6.1(a)(i)1) with respect to any Fundamental Representation, or pursuant to Section 6.1(a)(ii) with respect to any Specified Tax Liabilities, shall be paid as follows: (w) first, with respect to any Losses included in the Stockholder Retention Amount, via offset against any portion of the Earnout Amount payable pursuant to Section 1.5, (x) second, from the R&W Policy, if and to the extent that all or any part of such claim is actually recovered, under and in accordance with the terms of the R&W Policy, (y) third, via offset against any portion of the Earnout Amount payable pursuant to Section 1.5, and (z) fourth, to the extent any such amounts are not recovered under clauses (w), (x) or (y), from the Company Equityholders; provided, that, the right provided for under the foregoing clause (z) shall (i) be available only with respect to any Indemnification Notice properly delivered in accordance with this Section 10.7, then (i) within three (3) Business Days following ARTICLE VI during the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent duration of the Indemnification Escrow Account)Earnout Period, in each case to be released except in the same proportion case of cash and shares as were contributed to the Indemnification Escrow AccountFraud, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining not apply in the Indemnification Escrow Account is insufficient case of claims pursuant to cover the full amount Section 6.1(a)(i)2) in respect of any covenant, undertaking or other agreement that is determinedby its terms to be performed on or prior to the Closing Date; and (C) pursuant to Section 6.1(a)(i)2), agreed Section 6.1(a)(iii), Section 6.1(a)(iv) shall be as follows: (x) first, via offset against any portion of the Earnout Amount payable pursuant to Section 1.5, and (y) then, to the extent any such amounts are not recovered under clause (x), from the Company Equityholders; provided, that, the right provided for under the foregoing clause (y) shall (i) be available only with respect to any Indemnification Notice delivered in accordance with this ARTICLE VI during the duration of the Earnout Period, except in the case of Fraud, and (ii) not apply in the case of claims pursuant to Section 6.1(a)(i)2) in respect of any covenant, undertaking or other agreement that is by its terms to be performed on or prior to the Closing Date. (ii) Claims for indemnification made pursuant to this Agreement that are not covered by the R&W Policy shall be paid, or deemed agreed to be owed to such offset from the Earnout Amount, if applicable, within five days of a final written settlement among the Indemnifying Parties and the Indemnified Party, then, subject Parties or upon a final adjudication determined by a court of competent jurisdiction that an indemnification obligation is owing by the Indemnifying Party to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified Party.

Payment of Claims. If Subject to the limitations on indemnification set forth in Section 8.2, any amount is, in good faith, determined, agreed or deemed agreed and all claims by a Purchaser Indemnified Party for Losses pursuant to Section 8.2(a)(i) shall be owed to any Indemnified Person in accordance with this Section 10.7, then satisfied (i) within three (3) Business Days following first, from the date such amount is determinedIndemnity Escrow Amount and, agreed or deemed agreed to be owedthereafter, Parent and by wire transfer of immediately available funds by the Securityholder Representative shall execute and deliver joint written instructions Sellers to the Escrow Agent instructing account(s) designated by the Escrow Agent Purchasers, provided, that the aggregate amount of funds delivered pursuant to release such amount to this clause (i) shall not exceed the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Account), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price Cap and (ii) second, from and against the R&W Policy (if any). To the amount remaining extent that such Losses relate to a claim for breach of a Fundamental Representation or a claim for fraud or willful misrepresentation that are not satisfied in full pursuant to clauses (i) and (ii), in the Indemnification aggregate, then by wire transfer of immediately available funds by the Sellers to the account(s) designated by the Purchasers. Any and all claims by a Purchaser Indemnified Party for Losses pursuant to Section 8.2(a)(ii)-(xii) shall be satisfied first, from the Indemnity Escrow Account is insufficient Amount and, thereafter, by wire transfer of immediately available funds by the Sellers to cover the full amount that is determinedaccount(s) designated by the Purchasers. If any Seller has not satisfied any indemnification obligation owed by it hereunder and the Indemnity Escrow Amount has been released or disbursed in its entirety, agreed or deemed agreed except to be owed the extent Losses related to such Indemnified Party, then, subject indemnification obligation are covered by the R&W Policy (if any) pursuant to the limitations contained process set out in Section 10.38.2, the Purchasers or any of their respective Affiliates may, at their discretion, satisfy the unpaid portion of such obligation by, to the extent permitted by law, setting-off against any amounts due and owing from a Purchaser Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determineda Seller, agreed including any amounts due under or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) in respect of the amount of such shortfall to such Indemnified PartyTransition Services Agreement and/or the Employee Services Agreement.

Payment of Claims. (a) In the event that Buyer asserts a claim against Seller for indemnity under this Article XII it shall promptly send to Seller a written notice of such claim, setting forth (a) a demand for payment of a specified amount if practicable and (b) a description of the asserted claim and the basis therefor. Such notice of claim may be supplemented from time to time with a written notice of claim for reimbursement of legal and other expenses reasonably incurred in conducting the defense of such claim sent by Buyer to Seller, setting forth (a) a demand for payment of a specified amount if practicable and (b) a description of the asserted claim and the basis therefor. (b) If any Buyer delivers to the Seller a notice of claim in accordance herewith and Seller does not object thereto within 14 days following its receipt thereof, then Seller shall forthwith pay to the claimant, or to Buyer if Buyer previously made payment therefore to claimant, the amount is, in good faith, determined, agreed or deemed agreed to be owed to any Indemnified Person of such claim in accordance with this Section 10.7, then (i) within three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent terms of the Indemnification Escrow Account), demand set forth in each case to be released in the same proportion such notice of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, thenclaim, subject to the limitations contained set forth in Section 10.3, the Indemnified Party shall send notice 12.2 hereof. (c) If Buyer delivers to the Securityholder Representative Seller a notice of claim pursuant hereto to which Seller objects in writing prior to the expiration of the 14 day period specified above, and Buyer and Seller are unable to resolve such disputed claim within ten sixty (1060) days following after the date expiration of such amount is determined14 day period, agreed then either Buyer or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on Seller may submit the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) determination of the amount of such shortfall indemnification under this Article XII for Losses related to such Indemnified Partyclaim for resolution to a mutually acceptable arbitrator (the "Arbitrator"). The Arbitrator shall be instructed to determine the amount of indemnification under this Article XII that it believes is needed to indemnify Buyer to the extent provided in this Article XII with respect to reasonably foreseeable Losses related to such claim using a methodology that assigns risk weightings to the foreseeable range of possible losses. The Arbitrator that hears and resolves such dispute shall be instructed as to the limits of indemnification available with respect to such claim under this Article XII and that its award may not exceed such limits. The amount of such indemnification awarded by the Arbitrator shall be final and binding on Buyer and Seller, which amount Seller shall promptly pay to the claimant, or if Buyer has already paid the claimant, to Buyer after determination thereof, subject to the limitations set forth in Section 12.2 hereof.

Payment of Claims. If (a) Upon receipt by the Escrow Agent on or before the last day of the Escrow Period of a certificate signed by any amount is, in good faith, determined, agreed or deemed agreed to be owed to any Indemnified Person in accordance with this Section 10.7, then appropriately authorized officer of Acquiror (an "Officer's Certificate"): (i) within three (3) Business Days following Stating the date such aggregate amount is determined, agreed of Acquiror's Damages or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Account)an estimate thereof, in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued extent known or determinable at the Collared Stock Price and such time; and (ii) if Specifying in reasonable detail the individual items of such Damages included in the amount remaining in so stated, the Indemnification date each such item was paid or properly accrued or arose, and the nature of the misrepresentation, breach or claim to which such item is related, the Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, thenAgent shall, subject to the limitations contained in Section 10.3provisions of Sections 10.3 and 10.8 hereof and of the Escrow Agreement, deliver to Acquiror out of the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determinedEscrow Fund, agreed or deemed agreed to be owedas promptly as practicable, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock Escrow Shares having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s Damages all in accordance with the Escrow Agreement and Section 10.6 below. Amounts paid or distributed from the Escrow Fund shall be paid or distributed pro rata portion among the Holders (as defined in the Escrow Agreement) based upon their respective percentage interests therein at the time. (b) Upon receipt by the Acquiror on his, her or its Applicable Percentage) before the last day of the Escrow Period of a certificate signed by the Shareholders' Agent (an "Agent's Certificate"): (i) Stating the aggregate amount of Former Target Shareholders' Damages or an estimate thereof, in each case to the extent known or determinable at such shortfall time; and (ii) Specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid or properly accrued or arose, and the nature of the misrepresentation, breach or claim to which such item is related, the Acquiror shall, subject to the provisions of Sections 10.3 and 10.8 hereof, deliver to the Former Target Shareholders, as promptly as practicable, cash or Acquiror Common Stock, as the case may be, having a value equal to such Indemnified PartyDamages all in accordance with Sections 10.1(b). Amounts paid or distributed shall be paid or distributed pro rata among the Former Target Shareholders based upon their respective percentage interests therein at the time.

Payment of Claims. If (a) In the event of any claims for indemnification under this Section 8, the claimant shall advise the party or parties who are required to provide indemnification therefor in writing of the amount isand circumstances surrounding such claim. With respect to liquidated claims, if within thirty days the other party has not contested such claim in good faithwriting, determinedsuch other party shall (subject to the provisions of Section 8.4(b) below) pay the full amount thereof within ten days after the expiration of such thirty-day period. Any amount payable by an Indemnifying Party in respect of indemnification pursuant to this Agreement may be set off and deducted by the Indemnified Party from and against any amounts that may otherwise be or become payable by such Indemnified Party to such Indemnifying Party, agreed or deemed agreed to be owed including without limitation amounts payable pursuant to any of the Other Agreements. No recourse shall be sought against the Escrow Amount for any AGI Indemnified Person Claim unless, substantially simultaneously with seeking recourse thereagainst, the applicable Indemnified Party uses commercially reasonable efforts to seek recourse with respect to such AGI Indemnified Claim against the Non-Escrowed Stockholders liable with respect thereto. Amounts owed by any Escrowed Stockholder as an Indemnifying Party hereunder shall be paid solely from the Escrow Amount pursuant to, and subject to the limitations set forth in, the Escrow Agreement. The unpaid balance of any claim for Damages under this Section 8 shall bear interest at the rate announced from time to time by BankBoston, N.A., as its "Base Rate" plus two ---- percent, from the date notice of such claim is given by the Indemnified Party to the Indemnifying Party. (b) In the event an Indemnified Party is either a Holding Indemnitee or an Investor under the Investment Agreement, and the Indemnifying Party is also an Investor under, and acquires shares of Holding pursuant to, the Investment Agreement, the Indemnifying Party shall have the option, upon final determination of the dollar amount of a claim for indemnification payable to such Indemnified Party in accordance with this Section 10.78, then by written notice to such Indemnified Party delivered within ten (10) business days after the date of such determination, to elect to satisfy such claim, or any part thereof, by transferring without further consideration to such Indemnified Party, free and clear of all Liens, that number of shares of New Common Stock (as defined in the Investment Agreement), rounded to the second decimal place, which is equal to: (i) within three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to if the Indemnified Party from the Indemnification Escrow Account is (A) a party other than an Investor pursuant to the extent of the Indemnification Escrow Account), in each case to be released in the same proportion of cash and shares as were contributed Investment Agreement or (B) an Investor pursuant to the Indemnification Escrow Account-42- Investment Agreement seeking indemnification other than on account of, it being understood that for purposes or related to, Damages suffered by Holding or any of its Subsidiaries, (x) the final determined dollar amount of such claim (or such portion thereof as the applicable Indemnifying Party is electing to satisfy pursuant to this Section 10.7(c8.4(b), any share of Parent Common Stock that is released to ) divided by (y) the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and Share Value; and (ii) if the amount remaining in the Indemnification Escrow Account Indemnified Party is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, then, subject an Investor pursuant to the limitations contained Investment Agreement and is seeking indemnification on account of Damages suffered by Holding or any of its Subsidiaries, (x) such Investor's pro rata directly- or indirectly-allocable portion of the dollar amount of the Damages suffered by Holding or such Subsidiary (or such portion thereof as the applicable Indemnifying Party is electing to satisfy pursuant to this Section 8.4(b)), calculated on the same basis as is set forth in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage8.5(a) of the amount of such shortfall to such Indemnified PartyInvestment Agreement, divided by (y) the Adjusted Share Value (as defined below).

Payment of Claims. If In the event of any amount isbona fide claim for indemnification hereunder, in good faith, determined, agreed or deemed agreed to be owed to any Indemnified Person in accordance with this Section 10.7, then (i) within three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from will advise the Indemnification Escrow Account Indemnifying Party that it is required to provide indemnification therefor in writing. With respect to liquidated claims for Damages, if within thirty (to 30) days the extent of Indemnifying Party has not contested such claim in writing, the Indemnification Escrow Account), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Indemnifying Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover will pay the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, thenthereof, subject to the limitations contained set forth in Section 10.39.5 and, except as set forth in the Indemnified Party shall send notice to the Securityholder Representative following sentence of this Section 9.4, within ten (10) days following after the date expiration of such amount period. In order to satisfy any indemnification obligations of the Company, the Company Stockholders and the Participating Rights Holders pursuant to this Article 9, Parent, the Surviving Corporation and their respective Affiliates (and the respective directors, officers, employees and representatives of any of them) shall have the right to recover Damages that have been incurred, or may be incurred, first from the Indemnity Holdback Amount which Parent is determinedentitled to withhold pursuant to Section 1.7(d) and then by setting off any indemnity payments owed by Parent and the Surviving Corporation pursuant to Section 9.1. In the event that the aggregate of the Indemnity Holdback Amount which Parent is entitled to withhold pursuant to Section 1.7(d) and any indemnity payments owed by Parent and the Surviving Corporation pursuant to Section 9.1 is less than the Damages incurred by any or all of Parent, agreed the Surviving Corporation and their respective Affiliates (and the respective directors, officers, employees and representatives of any of them), none of such Indemnified Parties shall have any further recourse to any of the Company Stockholders or deemed agreed the Participating Rights Holders. Notwithstanding anything to the contrary herein and for purposes of clarification, except in the case of fraud, the liability of the Company Stockholders and the Participating Rights Holders, including indemnification obligations and claims of Parent and the Surviving Corporation and any Affiliate thereof and their respective Representatives for Damages shall be owedlimited solely to (and payable in the order set forth in the third sentence of this Section 9.4) (x) any indemnity payments owed by Parent and the Surviving Corporation pursuant to Section 9.1 and (y) the Maximum Indemnification Amount (as defined in Section 9.5(b)) and payable solely from monies in the Indemnity Holdback Amount, as adjusted downward if the FDA Milestone Payment is not made, and once any payment from the Indemnity Holdback Amount is released to the Participating Rights Holders (or the Closing Amount has been paid to the Participating Rights Holders, except in the case of fraud by the Company), Parent, the Surviving Corporation and any Affiliate thereof, and their respective Representatives, shall have no further claim to any amount under this Agreement from the Company Stockholders and the Participating Rights Holders other than Parent and Surviving Corporation offsets against indemnification payments pursuant to Section 9.1. All such recoveries from the Indemnity Holdback Amount and offsets against indemnification payments shall be made on a pro rata basis from all Participating Rights Holders in the same proportions in which they would otherwise be entitled to receive payments of the Holdback Amount or indemnification payments, except that, to the extent of any claim arising under Section 9.2(a) that was caused by a breach of any Participating Rights Holder, such recoveries shall be made severally from the Participating Rights Holder responsible for such breach and no other Participating Rights Holder shall have any liability. Any indemnification obligations of Parent or Merger Sub pursuant to this Article 9 shall be paid, at Parent’s election, (i) in cash, (ii) by issuing Parent Common Stock (each Indemnifying Party share of which shall thereafter promptly pay cash and/or forfeit shares be valued for such purpose at the Reference Market Value of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) as of the amount date of such shortfall issuance), subject to such Indemnified Partythe conditions set forth in Section 1.6(b), (iii) by setting off against (i.e., reducing) any indemnification payments owed to Parent pursuant to this Article 9 or (iv) through a combination of the methods specified in clauses (i), (ii) and (iii). The parties agree that, for Tax purposes, to the greatest extent possible, the payment of any indemnity hereunder shall be treated as an adjustment to the Merger Consideration paid by Parent hereunder. Notwithstanding anything to the contrary contained herein and except in the case of fraud, the sole and exclusive remedy of Parent, the Surviving Corporation and any Affiliate thereof in respect of any and all claims relating to this Agreement, the transactions contemplated hereby and any certificate, document or other instrument delivered pursuant to or in connection with this Agreement shall be the rights to indemnification set forth in this Article IX and to make claims against the Indemnity Holdback Amount and offsets against indemnification payments in accordance with the terms of this Agreement.

Payment of Claims. If (a) A Section 14 Indemnifying Party shall make payment of any amount isportion of any Claimed Amount that such Section 14 Indemnifying Party has agreed in a Response Notice that it owes to a Section 14 Indemnified Party or that such Section 14 Indemnifying Party is deemed to have agreed it owes to such Section 14 Indemnifying Party pursuant to the provisions of Section 14.4(c) hereof, in good faith, determined, agreed or deemed agreed said payment to be owed to any Indemnified Person made within thirty (30) days after such Response Notice is delivered by such Section 14 Indemnifying Party or should have been delivered by such Section 14 Indemnifying Party, as the case may be. (b) Anything in accordance with this Section 10.7, then (i) within three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions Agreement to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Account), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, thencontrary notwithstanding, subject to the limitations contained in provisions of Section 10.314.6 (other than Section 14.6(e) hereof), the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed LeukoSite may withhold and set-off against any Aggregate Contingent Consideration Payment otherwise required to be owedpaid or delivered by LeukoSite pursuant to this Agreement any amount as to which the Stockholders and the Bonus Recipients are obligated to indemnify LeukoSite pursuant to any provision of this Agreement; provided, and each Indemnifying Party however, that in no event shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall any LeukoSite Contingent Milestone Payment, Contingent Partner Licensing Payment or Contingent Royalty Payment that would otherwise be payable by LeukoSite pursuant to such Indemnified PartySection 3.8 hereof be reduced by more than fifty percent (50%) in order to satisfy any indemnification claim pursuant to Section 14.3(ii) hereof. LeukoSite's set-off rights under this Section 14.5(b) shall be in addition to, and not in lieu of, any other rights that LeukoSite may have elsewhere in this Agreement to set-off, off-set or reduce all or any portion of the Merger Consideration.

Payment of Claims. (a) In the event of any claim for indemnification pursuant to Section 9.2 or 9.3 hereof, the Indemnified Party will advise the Indemnifying Party in writing with reasonable specificity of the amount and circumstances surrounding such claim. If any within thirty (30) days of a claim for indemnification the Indemnifying Party has not contested pursuant to Section 11.13 such claim in writing, the full amount is, in good faith, determined, agreed or deemed agreed to thereof shall be owed to any Indemnified Person in accordance with this Section 10.7, then paid (i) within three (3) Business Days following the date such amount is determinedwith respect to any Parent Indemnified Party, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to out of the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (Funds to the extent of the Indemnification Escrow Account), in each case to be released in the same proportion of cash available and shares as were contributed subject to the Indemnification Escrow Accountlimitations set forth in Section 9.6 below, it being understood that for purposes within two (2) days after the expiration of this Section 10.7(c)such period, any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient with respect to cover the full amount that is determined, agreed or deemed agreed to be owed to such any Company Indemnified Party, thenby Parent, subject to the limitations contained set forth in Section 10.39.7 below, via wire transfer to the Holders Representative within two (2) days after the expiration of such period. With respect to the Parent Indemnified Party, to the extent the Escrow Funds are insufficient or not available to satisfy the full amount of such claim for indemnification, Parent shall be entitled to set off, and accordingly reduce, any Contingent Payment that Parent would otherwise be required to pay to the Holders Representative pursuant to Section 2.7 hereof, subject to the limitations set forth in Section 9.6 hereof, provided, however, that any Parent Indemnified Party shall send notice not be entitled to set-off or reduce any Contingent Payment in the event and to the Securityholder extent that adequate funds have been reserved in escrow, or previously offset by the Parent. Upon the final determination of any indemnified claim pursuant to Section 9.2, the full amount of any excess offset or reduction amount shall be released by the Parent Indemnified Party and paid by wire transfer to the Holders Representative within ten five (105) business days following after such final determination. * Confidential Treatment Requested. Omitted portions filed with the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified PartyCommission.

Payment of Claims. If any amount is(a) The respective obligations and liabilities of the Buyer on the one hand, in good faithand the Seller and the Company, determinedon the other hand (the "indemnifying party"), agreed or deemed agreed to the other (the "party to be owed indemnified") under Sections 10.2 and 10.3, respectively, hereof with respect to any Indemnified Person the payment of claims shall be governed by this Section 10.4. (b) In the event that a party to be indemnified becomes aware of a claim for indemnification by it hereunder not involving a third-party claim, the party to be indemnified shall promptly provide the indemnifying party with notice of such claim; provided, however, that the failure to give notice shall not affect the right of the party to be indemnified to indemnification hereunder except to the extent that such failure prejudices the indemnifying party. If the indemnifying party does not object in writing to such indemnification claim within thirty (30) days of receiving notice thereof, the party to be indemnified shall be entitled to recover promptly from (a) the Restricted Account (in accordance with this Section 10.7the provisions of the Indemnity Account Agreement) and then from the Seller (and the Company if such claim relates to an event or occurrence that arises prior to Closing), then if the party to be indemnified is a Buyer Indemnified Party, and (b) from the Buyer, if the party to be indemnified is a Seller Indemnified Party, as the case may be, the amount of such claim and no later objection by the indemnifying party shall be permitted. If the indemnifying party agrees that it has an indemnification obligation but objects that it is obligated to pay only a lesser amount, the party to be indemnified shall nevertheless be entitled to recover promptly from (i) within three first, the Restricted Account (3in accordance with the provisions of the Indemnity Account Agreement) Business Days following and, second, from or the date Seller (and the Company if such amount is determinedclaim relates to an event or occurrence that arises prior to Closing), agreed or deemed agreed if the party to be owedindemnified is a Buyer Indemnified Party, Parent and (ii) from the Buyer, if the party to be indemnified is a Seller Indemnified Party, as the case may be, the lesser amount without prejudice to the party to be indemnified's claim for the difference. Upon the final determination of such claim, the party to be indemnified shall nevertheless be entitled to recover promptly from (A) first, the Restricted Account (in accordance with the provisions of the Indemnity Account Agreement) and, second, from or the Seller (and the Securityholder Representative Company if such claim relates to an event or occurrence that arises prior to Closing) if the party to be indemnified is a Buyer Indemnified Party, and (B) from the Buyer, if the party to be indemnified is a seller Indemnified Party, as the case may be, the remaining amount of such claim. (i) If a party to be indemnified receives notice of assertion of commencement of any claim, action or proceeding made or brought by any Person who or which is not a party to this Agreement or an affiliate of a party to this Agreement (a "Third Party Claim") against such party to be indemnified with respect to which an indemnifying party is obligated to provide indemnification under this Agreement, the party to be indemnified will give such indemnifying party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third Party Claim. Such notice will describe the Third Party Claim in reasonable detail, will include copies of all material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Damages that have been or may be sustained by the party to be indemnified. The party to be indemnified should have the right to control the defense of any Third Party Claim. The indemnifying party will have the right to participate in the defense of any Third Party Claim at such indemnifying party's own expense and by such indemnifying party's own counsel. (ii) If the a party to be indemnified fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten (10) calendar days after receiving written notice from the indemnifying party that the indemnifying party believes the a party to be indemnified has failed to take such steps, the indemnifying party may assume the defense of such Third Party Claim. In the event that the indemnifying party has assumed the defense of any Third Party Claim, the indemnifying party shall execute and deliver joint not enter into any settlement of such claim without the consent of the party to be indemnified (such consent not to be unreasonably withheld, conditioned or delayed), if (A) such settlement would lead to a liability or create any financial or other obligation on the part of the party to be indemnified for which the party to be indemnified is not entitled to indemnification hereunder, or (B) such settlement would involve injunctive or other equitable relief binding upon the party to be indemnified. (iii) Without the prior written instructions consent of the indemnifying party, the party to be indemnified will not enter into any settlement of any Third Party Claim without the consent of the indemnifying party (such consent not to be unreasonably withheld, conditioned or delayed), if (A) such settlement would lead to a liability or create any financial or other obligation on the part of the indemnifying party, or (B) such settlement would involve injunctive or other equitable relief binding upon the indemnifying party. (iv) At any time after the commencement of the defense of any Third Party Claim, if such Third Party Claim can be settled or compromised for a sum certain, the indemnifying party may request the party to be indemnified to agree in writing to the Escrow Agent instructing payment, settlement or compromise of the Escrow Agent asserted Third Party Claim for such sum, whereupon such action shall be taken unless the party to release be indemnified determines that the contest should be continued, and so notifies the indemnifying party in writing within fifteen (15) days of such amount to the Indemnified Party request from the Indemnification Escrow Account (indemnifying party. If the party to be indemnified determines that the contest should be continued, the indemnifying party shall be liable hereunder only to the extent of the Indemnification Escrow Account)amount that the other party to the contested Third Party Claim had agreed to accept in payment, in each case settlement or compromise as of the time the indemnifying party made its request therefor to the party to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, then, subject to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified Partyindemnified.

Payment of Claims. If (a) In the event of any amount isbona fide claim for indemnification hereunder, including a Third-Party Claim, the Indemnified Party will provide to the Indemnifying Party a certificate signed by any officer of the Indemnified Party (an “Officer’s Certificate”) stating that Damages have been incurred, or are reasonably expected to be incurred, or are claimed by a third party to be or have been incurred with respect to the indemnification obligations of the Indemnifying Party set forth in Article 11, specifying, in good faithreasonable detail and to the extent known to the Indemnified Party in each case: (i) the amount of such Damages that have been incurred at the time of the delivery of the Officer’s Certificate (or a reasonable estimate of such Damages) and, determinedto the extent known, agreed or deemed agreed the amount of Damages that are expected to be owed incurred (or a reasonable estimate of such Damages), (ii) the individual items of such Damages included in the amount so stated, (iii) the date of the occurrence of each such item, and (iv) the nature of the misrepresentation, breach of warranty, covenant or claim to which such item is related and the specific representation, warranty, covenant or obligation in this Agreement to which the claim for such misrepresentation or breach relates. The Officer’s Certificate shall be accompanied with a copy of all court filings with respect to a Third-Party Claim. The Indemnifying Party will have a period of thirty (30) days within which to respond in writing to any claim by an Indemnified Person Party on account of a Damage that does not result from a Third-Party Claim. If the Indemnifying Party does not so respond within such thirty (30) day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be entitled to pursue such remedies as may be available to the Indemnified Party. In order to satisfy any indemnification obligations of the Participating Rights Holders and the Founders with respect to any claim for indemnification pursuant to this Article 11, the Holdco Indemnitees shall recover any Damages that are finally determined to be payable hereunder, subject to the limitations in this Article 11, from the Escrowed Shares (to the extent not yet released) or amounts set-off with respect to a claim for indemnification from portions of certain Contingent Payments in accordance with this Section 10.711.4 whether or not such Contingent Payments are then required to be paid; provided that set-off with respect to Intellectual Property Claims shall only be from the Net Sales Contingent Payment; provided, then (i) within three (3) Business Days following further that if the OCS Claims remain outstanding as of the date of the release of the Escrowed Shares, an amount equal to the OCS Maximum Amount shall remain in escrow until the OCS Settlement is obtained and the OCS Claims are finally determined. Notwithstanding any other provision herein or in the Escrow Agreement, the Holdco Indemnitees shall only be entitled to recover any Damages for Intellectual Property Claims from amounts set-off from the Net Sales Contingent Payment. All such recoveries from the Escrowed Shares or set-offs against such Contingent Payments shall be made on a pro rata basis from all Participating Rights Holders and all Founders in accordance with each such Person’s Pro Rata Share. For purposes of determining the value of any Holdco Common Shares used to satisfy indemnification claims made by Holdco Indemnitees under this Agreement, each such share shall be deemed to have a value equal to the Reference Market Value on the date of issuance; provided, however, that in the case of any Escrowed Shares used to satisfy an indemnification claim made by the Holdco Indemnitees under this Agreement, such share shall be deemed to have a value equal to the Reference Market Value on the date of such indemnification claim. For the avoidance of doubt, once the Escrowed Shares or Contingent Payments have been actually paid to the Participating Rights Holders and the Founders, absent fraud, Holdco shall have no right of recovery against such Escrowed Shares or Contingent Payments or the Participating Rights Holders and the Founders in respect thereof pursuant to this Agreement (including this Article 11). Other than in the case of fraud by such Person, in no event shall any Participating Rights Holder or any Founder have any personal liability above and beyond such Person’s Pro Rata Share of the Escrowed Shares or such Person’s Pro Rata Share of portions of Contingent Payments set-off for Damages recoverable hereunder. Any indemnification obligations of Holdco pursuant to this Article 11 shall be paid to the Participating Rights Holders and the Founders as Contingent Payments, at Holdco’s election either (x) in cash or (y) in Holdco Common Shares valued at the Reference Market Value on the date of issuance, or (z) through a combination of the methods specified in clauses (x) and (y). The parties agree that to the greatest extent permitted by Law the payment of any indemnity hereunder shall be treated as an adjustment to the Merger Consideration and Founders’ Portion for Tax purposes. (b) Subject to the limitations in Section 11.5, Holdco shall be entitled to reduce certain Contingent Payments by the amount is determinedof any Damages that have been incurred or suffered, agreed or deemed agreed are reasonably likely to be owedincurred or suffered, Parent by any Holdco Indemnitee to the extent that any Holdco Indemnitee has asserted an indemnification claim for such Damages hereunder (including any such Damages in respect of any Third-Party Claim); provided, that if the Indemnifying Party has rejected or has deemed to have rejected such claim hereunder and any such Contingent Payment is otherwise due and payable pursuant to the Securityholder Representative terms hereof, Holdco shall execute and deliver joint written instructions to deposit the contested portion of such Contingent Payment with the Escrow Agent, which the Escrow Agent instructing shall hold in a segregated account until such time as such claim has been finally resolved pursuant to the terms of the Escrow Agreement and shall thereafter distribute such Contingent Payment pursuant to the terms of the Escrow Agreement. (c) Notwithstanding anything to the contrary herein, the Shareholder Representative shall have the right, but not the obligation, to fulfill any indemnification obligations of the Participating Rights Holders and the Founders to any Holdco Indemnitee hereunder by payment of cash to Holdco. In the event that any such indemnification obligation hereunder is so fulfilled by payment of cash, any Escrowed Shares or Contingent Payments in respect of such indemnification obligations shall promptly be deposited by the Escrow Agent to release such amount or Holdco, as the case may be, with the Exchange Agent for further distribution to the Indemnified Party from Participating Rights Holders and the Indemnification Escrow Account (to Founders in accordance with each such Person’s Pro Rata Share. Any costs, fees and expenses incurred by the extent Shareholder Representative in connection with fulfilling any indemnification obligations by payment of cash, including in respect of premiums, deductibles, retention amounts and other fees associated with any representation and warranty or other insurance policy obtained the Indemnification Escrow Account)Shareholder Representative, in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, then, subject to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Shareholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified PartyExpenses hereunder.

Payment of Claims. If In the event of any amount isbona fide claim for indemnification hereunder, the Indemnified Party will advise the Indemnifying Party that is required to provide indemnification therefor in good faithwriting. With respect to liquidated claims for Damages, determinedthe Indemnifying Party shall be responsible for the payment thereof upon the earlier of (w) the issuance of a final non-appealable order from a court of competent jurisdiction directing such payment, agreed or deemed agreed (x) a settlement to which the Indemnifying Party has consented, (y) the date on which the Buyer and the Stockholders’ Representative agree in writing that such payment must be owed to any Indemnified Person paid, and (z) the final resolution of a Tax Claim in accordance with this Section 10.7, then (i) within three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Account), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, then7.3, subject to the limitations contained set forth in Section 10.311.5 and except as set forth in the following sentence of this Section 11.4, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following after such order is issued, such settlement or mutual written agreement is executed, or such resolution is reached. In order to satisfy any indemnification obligations of the date such amount is determinedCompany, agreed or deemed agreed the Stockholders and the Fully Diluted Common Holders with respect to be owedany claim for indemnification pursuant to this Article XI (other than claims under Section 11.2(c)), Buyer and the Surviving Corporation (and each Indemnifying Party of their respective directors, officers, employees, representatives and other Affiliates) shall thereafter promptly pay cash and/or forfeit shares have the right to recover Damages that have been incurred, at the election of Parent Common Stock having Buyer and the Surviving Corporation, first, from the Indemnity Escrow Account to the extent available, or, solely with respect to claims pursuant to Section 11.2 (other than Section 11.2(c) or with respect to an Ordinary Breach) to the extent there are no funds remaining in the Indemnity Escrow Account sufficient to satisfy such Damages, by offset from the Contingent Payments pursuant to the terms of Section 2.10(c). All such recoveries from the Indemnity Escrow Account and offsets against Contingent Payments shall be made on a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her basis from all Fully Diluted Common Holders in the same proportions in which they would otherwise be entitled to receive such escrowed funds or its Applicable Percentage) Contingent Payments. The parties agree that to the greatest extent permitted by Law the payment of any indemnity hereunder shall be treated as an adjustment to the amount of such shortfall to such Indemnified PartyMerger Consideration paid by Buyer hereunder for Tax purposes.

Payment of Claims. If (i) Parent may make an indemnification claim for Damages pursuant to Article VIII of the Merger Agreement by concurrently delivering to the Indemnity Escrow Agent and the Securityholders’ Representative, at any time on or before 5:00 p.m. (EST) on the last day of the Indemnity Escrow Period, a certificate signed by an officer of Parent (a “Parent Indemnification Certificate”) that, with respect to such Damages, (A) describes in reasonable detail the facts and circumstances known to the Parent Indemnified Party that gave rise to such indemnification claim and the amount isarising therefrom, and (B) if the amount of Damages exceeds the applicable deductible amount provided for in good faithSection 8.2(c)(ii) of the Merger Agreement (after taking into account any other indemnification claims made by the Parent Indemnified Parties pursuant to Article VIII of the Merger Agreement) (the “Applicable Deductible Amount”), determinedprovides for a demand of payment of the amount (not to exceed in the aggregate for all such claims the maximum amount specified in Section 8.2(c)(iv) of the Merger Agreement) arising from such claims for Damages (minus, agreed or deemed agreed to the extent not yet exhausted, the applicable Deductible Amount) (the “Payable Damages”), such demand to be owed accompanied by a statement by Parent that the Parent Indemnified Parties have paid Damages which, on a cumulative basis with all prior Damages, exceed the Applicable Deductible Amount. (ii) Any delivery from the Indemnity Escrow Fund to any Indemnified Person be made to Parent pursuant to this Section 6 shall be made first using Escrowed Shares, to the extent a sufficient number of Escrowed Shares remains in the Indemnity Escrow Fund, and second, using Escrowed Cash; provided, however, that notwithstanding the foregoing, the Securityholders’ Representative shall have the sole and exclusive discretion to direct that such deliveries be made in Escrowed Cash in lieu of or in addition to Escrowed Shares, such direction to be delivered to the Indemnity Escrow Agent (with a copy to Parent) at least two Business Days prior to the earliest date such delivery may be made to Parent in accordance with this Section 10.7Agreement. For purposes of deliveries made to Parent under this Agreement, then (i) within three (3) Business Days following the date such amount is determined, agreed fractional shares shall be rounded up or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions down to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Account), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, then, subject to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified Partynearest whole number.

Payment of Claims. If any amount is, in good faith, determined, agreed or deemed (a) Once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be owed payable pursuant to any Indemnified Person in accordance with this Section 10.7Article VII, then (i) within three (3) Business Days the Losses resulting from such Claim pursuant to this Article VII shall be paid from the Escrow Account pursuant to the terms of the Escrow Agreement. In connection therewith, promptly following such agreement or final adjudication, the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative Indemnifying Party shall execute and deliver joint written instructions deliver, or cause to be executed and delivered, all notices and instruments and shall take, or cause to be taken, all such other actions necessary under and pursuant to the Escrow Agent instructing Agreement to authorize the Escrow Agent to distribute and release the amount of such agreed or finally adjudicated Losses to the applicable Indemnified Party. (b) The amount of any Losses subject to indemnification under this Article VII shall be net any amounts actually recovered by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses or costs incurred by such Indemnified Party by reason of making such Claim or collecting such amount (including any increase in future insurance premiums suffered by the Indemnified Party directly as a result of obtaining such recovery from the Indemnification Escrow Account insurance carrier. Each Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Losses payable under this Article VII. (c) EXCEPT AS SET FORTH IN SECTION 7.06(D), IN NO EVENT SHALL THE INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING UNDER THIS ARTICLE VII) OR THE TERM “LOSSES” (EXCEPT IN THE CASE OF FRAUD OR INTENTIONAL MISREPRESENTATION) COVER OR INCLUDE LOSS OF PROFITS, DIMINUTION IN VALUE OR ANY DAMAGES BASED ON ANY TYPE OF MULTIPLE, WHETHER BASED ON STATUTE, CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT ARISING FROM THE INDEMNIFYING PARTY’S SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT (OTHER THAN ANY LOSSES COVERING OR INCLUDING DIMINUTION IN VALUE OR LOSS OF PROFITS OBTAINED IN A PROCEEDING BY A THIRD PARTY FROM A BUYER INDEMNIFIED PARTY). (d) For the avoidance of doubt, in the event a third party obtains Losses which cover or include diminution in value or loss of profits from a Buyer Indemnified Party, such Losses which cover or include diminution in value or loss of profits shall, to the extent they would otherwise be indemnifiable under this Agreement but for the fact that they are Losses which cover or include diminution in value or loss of the Indemnification Escrow Account)profits, in each case be indemnifiable direct Losses to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that such Buyer Indemnified Party for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, then, subject to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified PartyAgreement.

Payment of Claims. If 7.4.1. In the event of any amount isbona fide claim for indemnification hereunder, the Indemnified Party will advise the Indemnifying Party that is required to provide indemnification therefor in good faith, determined, agreed or deemed agreed to writing. Such notice shall be owed to any signed by the Indemnified Person in accordance with this Section 10.7, then Party: (i) within three (3) Business Days following the date stating that such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Account)has paid or incurred Damages, in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if specifying in reasonable detail the individual items of Damages included in the amount remaining so stated, the date each such item was paid or incurred, if applicable, and the nature of the misrepresentation, breach of warranty or covenant or other event or circumstances which resulted in the Indemnification Escrow Account is insufficient indemnification obligation of the Indemnifying Party. With respect to cover liquidated claims for Damages, if within ninety (90) days the Indemnifying Party has not contested such claim in writing, the Indemnifying Party shall be responsible for the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, thenthereof, subject to the limitations contained set forth in Section 10.3, the Indemnified Party shall send notice 7.5 and to the Securityholder Representative provisions of Section 7.4.2, within ten (10) days following after the date expiration of such amount is determinedperiod. 7.4.2. Notwithstanding any provision of this Agreement to the contrary but subject to the other provisions below of this Section 7.4.2, agreed or deemed agreed to be owedthe indemnification obligation of Seller, and the right to indemnification under this Agreement of Buyer (and/or each Indemnifying Party of its respective directors, officers, employees, representatives and other Affiliates) to recover indemnifiable Damages that have been incurred or may be incurred pursuant to any breach by Seller of any representation, warranty or covenant made by Seller hereunder shall thereafter promptly pay be exclusively from the Escrow Amount in accordance with the terms of the Escrow Agreement. Notwithstanding anything to the contrary in this Section 7.4.2, the limitations imposed by this Section 7.4.2 shall not apply to any Damages arising out of or in connection with (A) any breach of a representation or warranty contained in Sections 2.1 (Seller’s Organization), 2.2 (Authorization, Noncontravention), 2.13 (Title to Acquired Assets) and 2.12 (Tax Matters) (the “Special Matters Claims”), (B) any breach of a representation or warranty contained in Section 2.14 (“Intellectual Property Claims”) and any Non-Assumed Liabilities Claims, or (C) any intentional or willful breaches of this Agreement, or fraud. 7.4.3. Any indemnification obligations of the Parties pursuant to this Section 7 shall be paid in cash and/or forfeit shares of Parent Common Stock having a value (based on in immediately available funds, provided that Buyer shall first seek indemnification from the Collared Stock Price) equal Escrow Amount. 7.4.4. Seller shall indemnify Buyer for up to $200,000 in actual incurred costs by Buyer to satisfy any alleged damages claims made by Clareity in connection with allegedly defective tokens provided by Seller prior to the Closing Date. Seller’s liability hereunder with respect to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall tokens shall be limited to such Indemnified Partyamount.

Payment of Claims. (a) If any amount isno Objection Notice is delivered by the Representative within the Objection Period, or if an Objection Notice is delivered by the Representative within the Objection Period, but such Objection Notice is only with respect to a portion of the Indemnifiable Losses stated in good faith, determined, agreed or deemed agreed to be owed to any Indemnified Person in accordance with this Section 10.7the applicable Claim Certificate, then on the 31st day following the Escrow Agent’s receipt of a Claim Certificate, (i) within three (3) Business Days following the date such amount is determinedif applicable, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing shall release to Parent as soon as practicable out of the Escrow Agent to release such amount to the Indemnified Party from the Regular Indemnification Escrow Account (Fund or Special Indemnification Fund, as applicable, to the extent of the Indemnification Escrow Account)cash remains therein, in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if applicable, the Escrow Participants severally shall pay to Parent, an amount of cash equal to their respective Escrow Pro Rata Portions of (1) the amount of the Indemnifiable Losses set forth in the Claim Certificate, if no Objection Notice was delivered by the Representative, or (2) the amount of the portion of the Indemnifiable Losses set forth in such Claim Certificate to which no objection was made, if an Objection Notice was delivered by the Representative, except that, to the extent that such Indemnifiable Losses have not then been sustained by such Indemnified Person, Parent (on behalf of itself or any other Indemnified Person) shall not be so entitled to receive, and the Escrow Agent and the Escrow Participants shall not deliver funds in respect thereof unless and until such Indemnifiable Losses are actually sustained by such Indemnified Person. (b) If an Objection Notice is delivered by the Representative within the Objection Period and an agreement between the Representative and Parent is reached in accordance with Section 7.7(b), the Representative and Parent each shall execute a memorandum setting forth their agreement and furnish it to the Escrow Agent (if applicable). The Escrow Agent shall be entitled to rely on any such memorandum and shall distribute any cash then NAI-1503806643v11 remaining in the Regular Indemnification Escrow Account is insufficient to cover Fund or the full amount that is determinedSpecial Indemnification Escrow Fund, agreed or deemed agreed to be owed to such Indemnified Partyas applicable, then, subject to in accordance with the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified Partyterms thereof.

Payment of Claims. If In the event of any amount isclaim for indemnification pursuant to Section 9.2 or 9.3 hereof, the Parent Covered Party or the Company Covered Party claiming indemnification (the “Indemnified Party”) will advise the other (the “Indemnifying Party”) and, in good faiththe case that the Indemnified Party is a Parent Covered Party, determinedthe Escrow Agent, agreed or deemed agreed in writing with reasonable specificity, to be owed the extent known, of the amount and circumstances surrounding such claim. If, after the Indemnified Party delivers a claim for indemnification to any Indemnified Person the Indemnifying Party in accordance with the immediately preceding sentence of this Section 10.79.5(b) the Indemnifying Party accepts such claim in writing, then the full amount thereof shall be paid (subject to the provisions of this Article 9 that may impose limitations on such claim) (i) within three (3) Business Days following with respect to any Parent Covered Party, out of the date such amount is determined, agreed or deemed agreed to be owed, Parent Indemnity Escrow Shares and the Securityholder Carve Out Escrowed Indemnity Shares, on a pro rata basis, within two (2) days after the Stockholder Representative shall execute and deliver joint written instructions Committed has accepted such claim for indemnification (subject to the Indemnity Escrow Agent instructing Shares and the Escrow Agent Carve Out Escrowed Indemnity Shares being available and sufficient to release satisfy such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Accountclaim), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient with respect to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified any Company Covered Party, then, subject by Parent via wire transfer to the limitations contained in Section 10.3Stockholders Representative Committee promptly after Parent has accepted such claim for indemnification. If, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following after the date Indemnified Party delivers a claim for indemnification to the Indemnifying Party in accordance with the first sentence of this Section 9.5(b) or Section 9.5(a), the Indemnifying Party has not accepted such amount claim for indemnification, then, (A) if the Indemnified Party is determineda Parent Covered Party, agreed or deemed agreed to be owedsuch Parent Covered Party may make a claim against the Indemnity Escrow Shares and the Carve Out Escrowed Indemnity Shares pursuant to, and each Indemnifying in accordance with, the Escrow Agreement (subject to the provisions of this Article 9 that may impose limitations on such claim and subject to subject to the Indemnity Escrow Shares and the Carve Out Escrowed Indemnity Shares being available and sufficient to satisfy such claim), and (B) if the Indemnified Party is either a Parent Covered Party or a Company Covered Party, such Indemnified Party may commence an action or proceeding in a court of competent jurisdiction seeking to enforce the Indemnified Party’s right to indemnification subject to, and in accordance with, the provisions of this Article 9. Promptly after receipt by the Stockholder Representative of any payment under this Section 9.5(b) by Parent in connection with any claim for indemnification by or on behalf of one or more Company Covered Parties, the Stockholder Representative shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal distribute to such Indemnifying Party’s pro rata Company Covered Party or Company Covered Parties that portion (based on his, her or its Applicable Percentage) of the amount of such shortfall payment to which such Indemnified PartyCompany Covered Party or Company Covered Parties are entitled under this Agreement by virtue of such claim for indemnification.

Payment of Claims. If (a) In the event of any amount isbona fide claim for indemnification hereunder, the Indemnified Party will advise the Indemnifying Party that is required to provide indemnification therefor (and, in good faiththe case of a claim by a Buyer Indemnified Party, determinedthe Escrow Agent) in writing with reasonable specificity of the amount and circumstances surrounding such claim. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, agreed the Indemnifying Party shall pay such lesser amount promptly pursuant to (b) below, to the Indemnified Party, without prejudice to or deemed agreed waiver of the Indemnified Party’s claim for the difference. (b) With respect to be owed liquidated claims for Damages, if within thirty (30) days the Indemnifying Party has not contested such claim in writing (or a portion of such claim), the Indemnifying Party will pay the full amount thereof (or the portion not contested), subject to any Indemnified Person the limitations set forth in Section 11.5, within five (5) Business Days after the expiration of such period. With respect to claims for Damages that are not yet liquidated or are disputed, the Indemnifying Party will pay the full amount determined for such claims, subject to the limitations set forth in Section 11.5, within five (5) Business Days after liquidation thereof or upon resolution of the Indemnifying Party’s obligation to pay such claim. To the extent indemnification required hereunder is not timely paid in accordance with this Section 10.711.4(b), then amounts due hereunder shall bear interest at a rate equal to the rate of interest from time to time announced publicly by The Wall Street Journal as its prime rate, calculated on the basis of a year of 365 days and the number of days elapsed. (c) Any disputed claim shall be deemed “resolved,” “liquidated” or “determined” when (i) within three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions parties to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Account)dispute have reached an agreement in writing, in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if a court of competent jurisdiction shall have entered a final and non-appealable order or judgment, or (iii) an arbitration or like panel shall have rendered a final non-appealable determination with respect to disputes the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed parties have agreed to be owed to such Indemnified Party, then, subject to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten submit thereto. (10d) days following the date such amount is determined, agreed or deemed agreed to be owed, and each The Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified Party.

Payment of Claims. If any amount is, in good faith, Losses are determined, agreed or deemed agreed to be owed to any Indemnified Person Party in accordance with this Section 10.78.5 (such amount, then the “Owed Amount”), then, any Losses with respect thereto shall be satisfied (i) first, so long as there are amounts remaining in the Indemnity Escrow Fund, Parent shall be entitled to receive a portion of the Indemnity Escrow Fund with a value equal to the Owed Amount, in which case, the Securityholder Representative and Parent shall execute and deliver a joint written instruction to the Escrow Agent instructing the Escrow Agent to release to Parent from the Indemnity Escrow Fund the Owed Amount (or, if such amount exceeds the amounts then remaining in the Indemnity Escrow Fund, the entire remaining Indemnity Escrow Fund), and (ii) second, if the amount remaining in the Indemnity Escrow Fund is insufficient to cover the full Owed Amount, or if all of the Indemnity Escrow Fund has been previously delivered to Parent and/or the Indemnifying Parties, then, subject to the limitations contained in Section 8.3, each Indemnifying Party shall, within three ten (310) Business Days following the date such amount Owed Amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release pay in cash such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Account), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at Pro Rata Share of the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed Owed Amount to such Indemnified Party, then, subject . The Securityholder Representative hereby agrees to the limitations contained in Section 10.3, the Indemnified Party shall send give notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to payment obligation within three (3) Business Days of such Indemnified Partydetermination, agreement or deemed agreement.

Payment of Claims. If any amount is, in good faith, amounts are determined, agreed or deemed agreed agreed, in each case, to be owed to any Buyer Indemnified Person in accordance with Party, including pursuant to this Section 10.79.4 (each such amount, then an “Owed Amount”), then, any Losses with respect thereto shall be satisfied as follows: (i) first so long as there are amounts remaining in the Indemnity Escrow Fund, Buyer shall be entitled to receive a portion of the Indemnity Escrow Fund with a value equal to the Owed Amount (and, if applicable, with respect to any Owed Amount pursuant to Section 9.2(h), Buyer shall be entitled to receive a portion of the Section 9.2(h) Escrow Fund with a value equal to the Owed Amount), in which case, the Sellers’ Representative and Buyer shall execute and deliver a joint written instruction to the Escrow Agent instructing the Escrow Agent to release to Buyer from the Indemnity Escrow Fund (or the Section 9.2(h) Escrow Fund with respect to Owed Amounts pursuant to Section 9.2(h)), the Owed Amount (or, if such amount exceeds the amounts then remaining in such Escrow Funds, the entire remaining in such Escrow Fund, as applicable), (ii) second, by recovery from the Buyer R&W Insurance Policy, to the extent recovery is available with respect to such Owed Amount and (iii) third, subject to the limitations contained in this Article IX, directly against the Seller Indemnifying Parties and each Seller Indemnifying Party shall, within three twenty (320) Business Days following the date such amount Owed Amount is determined, agreed or deemed agreed to be owed, Parent and pay in cash such Seller Indemnifying Party’s Pro Rata Indemnity Portion of such remaining Owed Amount to Buyer or such Buyer Indemnified Party designated by Buyer. The Sellers’ Representative shall, subject to its prior receipt of a Notice Schedule, promptly notify each Seller Indemnifying Party of any obligation with respect to any such amounts owed under this Section 9.4(c), provided, that the Securityholder Representative Sellers’ Representative’s obligation to notify each Seller Indemnifying Party of any obligation to pay amounts owed pursuant to this Section 9.4(c) shall execute and deliver joint written instructions be satisfied upon transmission of such email notice to the Escrow Agent instructing email addresses included in the Escrow Agent to release such amount to Notice Schedule. Notwithstanding any other provision in this Agreement, Xxxxx agrees it shall promptly provide the Indemnified Party Sellers’ Representative any denial of coverage letter or notice under from the Indemnification Escrow Account (R&W Insurer denying coverage for any claim against the Buyer R&W Insurance Policy to the extent of the Indemnification Escrow Account), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that Buyer has or is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed making a Claim with respect to such Indemnified Party, then, subject to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified Partymatter.

Payment of Claims. If any amount is, in good faith, determined, agreed or deemed agreed to be owed to any Indemnified Person in accordance with this A Section 10.7, then (i) within three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent of the Indemnification Escrow Account), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, then, subject to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each 9 Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares make payment of Parent Common Stock having any portion of any Claimed Amount that such Section 9 Indemnifying Party has agreed in a value (based on the Collared Stock Price) equal Response Notice that it owes to a Section 9 Indemnified Party or that such Section 9 Indemnifying Party is deemed to have agreed it owes to such Section 9 Indemnifying Party pursuant to the provisions of Section 9.4(c) hereof, said payment to be made within thirty (30) days after such Response Notice is delivered by such Section 9 Indemnifying Party or should have been delivered by such Section 9 Indemnifying Party’s pro rata , as the case may be. A Section 9 Indemnifying Party shall make payment of any portion (based on hisof any Claimed Amount that is being disputed and contested by such Section 9 Indemnifying Party only if and when the dispute or contest is settled by such Section 9 Indemnifying Party and the applicable Section 9 Indemnified Party or if and when a court of competent jurisdiction determines the portion, her or its Applicable Percentage) if any, of such Claimed Amount that is owed by such Section 9 Indemnifying Party, whereupon such Section 9 Indemnifying Party shall make payment to such Section 9 Indemnified Party of the settlement amount or the amount determined by such court of competent jurisdiction within thirty (30) days after such shortfall to such Indemnified Partysettlement or court determination has been made.

Payment of Claims. If In order to satisfy any amount isindemnification obligations of the Company Stockholders pursuant to Section 8.2, in good faiththe Buyer (and each of the Indemnified Parties) shall recover Damages: (a) first, determined, agreed or deemed agreed to be owed to any Indemnified Person in accordance with this Section 10.7, then (i) within three (3) Business Days following the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to from the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (Fund to the extent available and subject to the terms of the Indemnification Escrow AccountAgreement (provided, that all claims that are First Special Indemnity Matters (the “First Special Indemnity Section”) shall be paid first from the First Special Escrow Fund prior to the Primary Escrow Fund, all claims that are Pre-Closing IP Indemnity Claims, Communications Matters or Clause (xii) Special Indemnity Matters (collectively, the “Second Special Indemnity Sections”) and any Third-Party Claim relating to a breach of Section 2.14 (Intellectual Property) that is in respect of a single set of facts or Circumstances with a Pre-Closing IP Indemnity Claim by the Buyer shall be paid first from the Second Special Escrow Fund prior to the Primary Escrow Fund, and that all other claims shall be paid first from the Primary Escrow Fund), in each case to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c), any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and and (iib) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed or deemed agreed to be owed to such Indemnified Party, thenthereafter, subject to Section 8.6(b) and the other limitations contained set forth in this Agreement, directly from the Company Stockholders by wire transfer of immediately available funds; provided, that the obligations of the Company Stockholders under this Section 10.3, 8.5 shall be several and not joint. All such recoveries whether from the Indemnified Party Escrow Fund or directly from the Company Stockholders shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (made based on the Collared Stock Price) equal Pro Rata Percentage with respect to such Indemnifying Partyeach Company Stockholder, except as provided in Section 8.6(b). The Representative shall make the final determination as to each Company Stockholder’s pro rata portion (based on hisPro Rata Percentage and, her to the fullest extent permitted by Law, the Company Stockholders shall not be entitled to make any claim against the Buyer or its Applicable PercentageAffiliates (including the Surviving Corporation) of the amount in respect of such shortfall to such Indemnified Partydetermination.

Payment of Claims. (a) Within thirty (30) calendar days of receipt by Ex-Im Bank of a complete Claim, Ex-Im Bank shall either notify Lender in writing (i) of Ex-Im Bank’s decision regarding the Claim (the "Claim Disposition Notice") or (ii) that Lender needs to provide additional documents, records, correspondence or items in Lender's possession related to the Loan Facility, the Loan Documents, or the obligations of Lender under this Agreement (“Additional Claim Documentation”) not included with the Claim. Lender shall provide such Additional Claim Documentation that Ex-Im Bank reasonably requests in order to process the Claim or proceed with recovery efforts against any Borrower, Guarantor or Collateral in the relevant Loan Facility. In the event Lender fails to provide the Additional Claim Documentation to the address specified in Section 5.01(c) or such other address as Ex-Im Bank indicates to Lender in writing, within a reasonable time frame set by Ex-Im Bank, the Guaranteed Amount shall only include interest on unpaid Disbursements through the date specified in writing by Ex-Im Bank. In the event Ex-Im Bank denies the payment of a Claim or a portion thereof, Ex-Im Bank shall state the reasons for such denial in the Claim Disposition Notice. (b) If the Claim Disposition Notice states that Ex-Im Bank will not pay a Claim or any portion thereof because Lender has failed to obtain a perfected Lien in any portion of the Collateral in the priority set forth in this Agreement and the applicable Loan Authorization Agreement, then Ex-Im Bank may still make a Claim Payment to Lender after the completion of all recovery efforts against the Collateral. Upon completion of such recovery efforts, Ex-Im Bank may pay any unpaid portion of the Claim to Lender, deducting therefrom an amount isequal to the non-recoverable value, as determined by Ex-Im Bank in its sole discretion exercised in good faith, determinedattributable to the portion of the Collateral in which Lender failed to obtain the required perfected Lien. Such determination shall, agreed without limitation, take into account the relative priority Lender and Ex-Im Bank were to have in the proceeds of the Collateral in which Lender did not have the required perfected Lien and the relative ultimate net loss suffered by each. (c) If the Claim Disposition Notice states that Ex-Im Bank will not pay a Claim or a portion thereof pursuant to Section 5.02 in any respect, then Ex-Im Bank may still make a Claim Payment to Lender after the completion of all recovery efforts against the applicable Borrower, any Guarantor and the Collateral. Upon completion of such recovery efforts or earlier if deemed agreed appropriate by Ex-Im Bank in its sole discretion, Ex-Im Bank may pay any unpaid portion of the Claim to be owed Lender, deducting therefrom an amount equal to the non- recoverable value, as determined by Ex-Im Bank in its sole discretion exercised in good faith, attributable to such exceptions(s) or non compliance. Lender shall promptly respond to any Indemnified Person in accordance with this Section 10.7, then (i) within three (3) Business Days following request from Ex-Im Bank for documentation or otherwise regarding the date such amount is determined, agreed or deemed agreed to be owed, Parent and the Securityholder Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release such amount to the Indemnified Party from the Indemnification Escrow Account (to the extent determination of the Indemnification Escrow Accountnon-recoverable value attributable to Lender’s exception(s) or non compliance. (d) In connection with any of the events described in Sections 5.03(b) and (c), in each case Ex-Im Bank shall have no obligation to be released in the same proportion of cash and shares as were contributed to the Indemnification Escrow Account, it being understood that for purposes of this Section 10.7(c)commence or conduct any recovery efforts against any Borrower, any share of Parent Common Stock that is released to the Indemnified Party in satisfaction of an Indemnifying Party’s obligations hereunder shall be valued at the Collared Stock Price and (ii) if the amount remaining in the Indemnification Escrow Account is insufficient to cover the full amount that is determined, agreed Guarantor or deemed agreed to be owed to such Indemnified Party, then, subject to the limitations contained in Section 10.3, the Indemnified Party shall send notice to the Securityholder Representative within ten (10) days following the date such amount is determined, agreed or deemed agreed to be owed, and each Indemnifying Party shall thereafter promptly pay cash and/or forfeit shares of Parent Common Stock having a value (based on the Collared Stock Price) equal to such Indemnifying Party’s pro rata portion (based on his, her or its Applicable Percentage) of the amount of such shortfall to such Indemnified Partyany Collateral.