Common use of Procedure for Claims Clause in Contracts

Procedure for Claims. Within ten days after obtaining written -------------------- notice of any claim or demand which has given rise to, or could reasonably give rise to, a claim for indemnification hereunder, the party seeking indemnification shall give written notice of such claim ("Notice of Claim") to the other party. Failure to give such notice by the party seeking indemnification within said ten day period shall not relieve the indemnifying party of its obligations hereunder, unless the failure to so notify the identifying party actually results in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to such indemnifying party. Notice of Claim shall set forth a brief description of the facts giving rise to such claim and the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counsel. The indemnified party shall have the right to employ separate counsel in any such action and to participate in or assume the defense thereof, but the fees and expenses of such counsel shall be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writing, (ii) the indemnifying party has failed to assume the defense and employ counsel in a timely manner or (iii) the named parties to any action (including any impleaded parties) include both Investor and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of the Indemnifying party, the indemnifying party shall have neither the right nor the obligation to assume the defense of such action on behalf of the indemnified party).

Procedure for Claims. Within ten thirty days after obtaining written -------------------- notice of any claim or demand which has given rise to, or could reasonably give rise to, a claim for indemnification hereunder, the party seeking indemnification shall give written notice of such claim ("Notice of Claim") to the other party. Failure to give such notice by the party seeking indemnification within said ten thirty-day period shall not relieve the indemnifying party of its obligations hereunder, unless and only to the extent that the failure to so notify the identifying indemnifying party actually results in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to such indemnifying party. The Notice of Claim shall set forth a brief description of the facts giving rise to such claim and the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counsel. The indemnified party shall have the right to employ separate counsel in any such action and to participate in or assume the defense thereof, but the fees and expenses of such counsel shall be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writing, (ii) the indemnifying party has failed to assume the defense and employ counsel in a timely manner or (iii) the named parties to any action (including any impleaded parties) include both Investor Purchaser and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor Purchaser by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of the Indemnifying indemnifying party, the indemnifying party shall have neither the right nor the obligation to assume the defense of such action on behalf of the indemnified party).

Procedure for Claims. Within ten days after obtaining written -------------------- notice Whenever a claim arises for indemnification under this Agreement, the Party claiming a right to indemnification (the “Indemnified Party”) will promptly notify the Party from whom the Indemnified Party is claiming indemnification (the “Indemnifying Party”) of such claim and, when known, the facts constituting the basis for such claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any claim or demand which has given rise to, or could reasonably give rise to, a liability that it may have to the Indemnified Party except to the extent the Indemnifying Party demonstrates that it is prejudiced thereby. In the event of any such claim for indemnification hereunderresulting from or arising in connection with a claim, suit or action by a third party, the party seeking indemnification shall give written notice Indemnifying Party may (but need not) defend or participate in the defense of any such claim ("Notice of Claim") to the other party. Failure to give such notice by the party seeking indemnification within said ten day period shall not relieve the indemnifying party of its obligations hereunderclaim, unless the failure to so notify the identifying party actually results in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to such indemnifying party. Notice of Claim shall set forth a brief description of the facts giving rise to such claim and the amount (or a reasonable estimate) of the loss, damage or expense sufferedsuit, or which may be suffered, by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counselaction. The indemnified party shall Indemnifying Party will be entitled to select counsel and take all steps necessary in the defense thereof; provided, however, that the Indemnified Party will have the right right, at its expense, to employ separate counsel participate in any such action and to participate in or assume defense with the defense thereof, counsel of its choice but the fees and expenses of such counsel shall will be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writing, (ii) the indemnifying party has failed to assume the defense and employ counsel in a timely manner or (iii) the named parties to any action (including any impleaded parties) include both Investor and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of the Indemnified Party. All fees and expenses will be paid periodically as incurred. So long as the Indemnifying partyParty is in good faith defending such claim or proceeding, the indemnifying Indemnified Party will not compromise or settle such claim without the prior written consent of the Indemnifying Party. The Indemnifying Party will not without the prior written consent of the Indemnified Party, effect any settlement of any such claim unless such settlement includes an unconditional release of the Indemnified Party from all Losses that are the subject of or constitute a portion of such claim. If the Indemnified Party desires to compromise or settle any claim and gives written notice of such settlement or compromise to the Indemnifying Party, but the Indemnifying Party refuses to consent to such compromise or settlement, the Indemnifying Party will indemnify the Indemnified Party for any Losses in excess of the compromise or settlement proposed by the Indemnified Party without regard to whether the Indemnified Party is otherwise entitled to such indemnification under Section 11.(a) or Section 11.(b) of this Agreement, as applicable. If the Indemnifying Party does not assume the defense of any such claim, suit or action in accordance with this Section 11.(c), the Indemnified Party may, at the Indemnifying Party’s expense, defend against such claim, suit or action in such manner as it may deem appropriate, including, but not limited to, settling such claim, suit or action (after giving prior written notice of the same to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriate. Any such settlement or compromise of, or any final judgment or decree entered on or in, any claim, suit or action which the Indemnified Party has defended in accordance herewith, will be deemed to have been consented to by, and will be binding upon, the Indemnifying Party as fully as if the Indemnifying Party had assumed the defense thereof and a final judgment or decree had been entered in such suit or action, or with regard to such claim, by a court of competent jurisdiction for the amount of such settlement, compromise, judgment or decree. The Indemnified Party and the Indemnifying Party will cooperate, without prejudice to any rights they may have against each other, in the compromise or defense of any third party shall have neither claim that is not entirely subject to indemnification by a single Indemnifying Party. If, after the right nor the obligation Indemnifying Party elects to assume the defense of such action on behalf a claim, it is determined by dispute resolution in accordance with Section 12. of this Agreement that the indemnified party).Indemnified Party is not entitled to indemnification with respect thereto, the Indemnifying Party will discontinue the defense thereof

Procedure for Claims. Within ten days after obtaining written -------------------- notice of If any claim or demand which has given rise to, or could reasonably give rise to, Party entitled to indemnification hereunder (the "Indemnitee") asserts a claim for indemnification hereunderagainst any other Party (the "Indemnitor") under this Section, then the party seeking indemnification Indemnitee shall give written notify the Indemnitor thereof promptly; provided, however, that no delay on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any liability or obligation hereunder unless (and then solely to the extent) the Indemnitor thereby is damaged. If the Indemnitor notifies the Indemnitee, within fifteen (15) days after the Indemnitee has given notice of such claim the matter, that the Indemnitor is assuming the defense thereof: ("Notice i) the Indemnitor will defend the Indemnitee against the matter with counsel of Claim") its choice satisfactory to the other partyIndemnitee; (ii) the Indemnitee may retain separate co-counsel at its sole cost and expense; and (iii) the Indemnitor will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnitee from all liability with respect thereto, without the written consent of the Indemnitee. Failure to give such notice by If the party seeking indemnification within said ten day period shall Indemnitor does not relieve the indemnifying party of its obligations hereunder, unless the failure to so notify the identifying party actually results in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to such indemnifying party. Notice of Claim shall set forth a brief description Indemnitee within fifteen (15) days after the Indemnitee has given notice of the facts giving rise to such claim and matter that the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counsel. The indemnified party shall have the right to employ separate counsel in any such action and to participate in or assume Indemnitor is assuming the defense thereof, but however, the fees and expenses of such counsel shall be Indemnitee may defend against, or enter into any settlement with respect to, the matter in any manner it may deem appropriate all at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writing, (ii) the indemnifying party has failed to assume the defense cost and employ counsel in a timely manner or (iii) the named parties to any action (including any impleaded parties) include both Investor and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of the Indemnifying party, the indemnifying party shall have neither the right nor the obligation to assume the defense of such action on behalf of the indemnified party)Indemnitor.

Procedure for Claims. Within ten days after obtaining written -------------------- i. If, prior to the Second Release Date, Surety shall discover, incur or receive notice of the existence of any claim Claim, whether liquidated or demand unliquidated, accrued or contingent, asserted or unasserted, for which has given rise to, an Indemnified Party claims reimbursement or could reasonably give rise to, a claim for indemnification indemnity hereunder, the party seeking indemnification Surety shall promptly give written notice thereof to the Representative and Escrow Agent by delivering a certificate (a "Claim Certificate") which shall be signed by the President or a Vice President of Surety to the effect that an Indemnified Party has a Claim in the amount specified in such Claim Certificate and setting forth the basis for such Claim. Upon receipt of any such Claim Certificate, Escrow Agent shall, as soon as practicable (but not earlier than fourteen (14) business days after the delivery to Escrow Agent of such claim ("Notice of Claim"Claim Certificate) deliver to the other partyIndemnified Party Escrowed Funds equal to the amount of the Claim as set forth in the Claim Certificate. Failure Unless, within ten (10) business days after delivery to give the Representative of any Claim Certificate, the Representative gives written notice to Surety and Escrow Agent that the Representative questions the accuracy of, or matters included in, such Claim Certificate, such Claim Certificate shall constitute full authority to Escrow Agent to take the action provided for in this Section 4.b and shall be conclusive on all parties hereto. ii. If the Representative gives notice questioning the accuracy of, or matters included in, a Claim Certificate, Escrow Agent shall not distribute to an Indemnified Party any Escrowed Funds or make any indemnification payment to an Indemnified Party pursuant to this Section 4.b until Escrow Agent receives (i) the written consent of the Representative to such indemnifying payment or (ii) a Final Determination with respect to the dispute. After notice by the party seeking indemnification within said ten day period shall not relieve Representative of disagreement with the indemnifying party of its obligations hereunderaccuracy of, unless or matters included in, a Claim Certificate, either Surety or any other Indemnified Party (on the failure to so notify one hand) or the identifying party actually results Representative (on the other hand), may submit and settle such disagreement by arbitration in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to such indemnifying party. Notice of Claim shall set forth a brief description accordance with the Commercial Arbitration Rules, existing at the date thereof, of the facts giving rise American Arbitration Association (the "Rules"). The dispute shall be submitted to such claim one arbitrator agreed to by Surety and the amount (or a reasonable estimate) of Representative or, if Surety and the loss, damage or expense suffered, or which may be sufferedRepresentative cannot agree on one arbitrator, by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resist, settle or otherwise dispose of such claim three arbitrators selected in such manner as it shall deem appropriate, including the employment of counselaccordance with said Rules, and shall be responsible for heard in Fort Worth, Texas. Each arbitrator must be experienced in the payment of all expenses, including the reasonable fees subject matter in dispute. The costs and expenses of the arbitration shall be paid by the non-prevailing party in such counselarbitration. The indemnified party If an Indemnified Party is the prevailing party, a Claim may be made against the Escrowed Funds for such costs and expenses. iii. In the event of any Claim asserted against an Indemnified Party by a third party, the Indemnified Party shall have immediately notify the right to employ separate counsel in any such action and to participate in or assume the defense Representative thereof, but and permit the fees and expenses of such counsel shall be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writingRepresentative, (ii) the indemnifying party has failed to assume the defense and employ counsel in a timely manner or (iii) the named parties to any action (including any impleaded parties) include both Investor and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense on behalf of the Indemnifying partyParties, the indemnifying party shall have neither the right nor the obligation to assume the defense of any such action Claim or any litigation resulting therefrom; provided, however, that counsel for the Representative, on behalf of the indemnified Indemnifying Parties, who shall conduct the defense of such Claim or any litigation resulting therefrom, shall be approved by the Indemnified Party or Parties against whom the Claim for which indemnification is sought is made (whose approval shall not be unreasonably withheld), and the Indemnified Party or Parties may participate in such defense at such party)'s expense. The failure of any Indemnified Party to give notice to the Representative as provided herein shall not relieve the Indemnifying Parties of their obligations under this Escrow Agreement unless such failure to give notice results in the forfeiture of substantive rights or defenses of the Indemnifying Parties. The Representative, in the defense of any such Claim or litigation, shall not, except with the consent of the relevant Indemnified Party or Parties, which consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement with regard to such Claim or litigation. The Indemnified Parties shall furnish such information regarding themselves or the Claim in question as the Representative may reasonably request in writing and as shall be reasonably required in connection with the defense of such Claim and litigation resulting therefrom. The Representative shall advise the Indemnified Parties from time to time of the status of such defense. The attorney fees, costs, and other expenses related to Representative's defending or litigating a Claim shall be paid from the Escrowed Funds from time to time as approved in writing by the Representative and Surety. Notwithstanding the above rights of Representative to defend and litigate a Claim, Surety may, by written notice to the Representative and Escrow Agent, with the prior written consent of Representative, which consent shall not be unreasonably withheld, terminate such defense and litigation and direct that the Claim be paid in full if Surety reasonably determines, after consultation with its counsel, that the sum of (A) the estimated costs of defending and litigating such Claim, (B) the estimated costs of paying such Claim if the defense and litigation is unsuccessful, and (C) the total of all other Claims for which the requisite notice has been given, exceeds seventy-five percent (75%) of the total of the Escrowed Funds then held by Escrow Agent. iv. If the Representative does not assume the defense of any such Claim or commence settlement negotiations within thirty (30) days of receiving the notice provided in Section 4.b.iii above, or such shorter period of time if applicable because of procedural requirements, and pursue such defense or settlement proceedings with reasonable diligence, the Indemnified Party may assume such defense or commence such settlement negotiations and may further consent to entry of a judgement or enter into a settlement of such Claim or litigation on behalf of the Indemnifying Parties. In such event, the Indemnified Party may submit a Claim Certificate to Escrow Agent from time to time for the costs and expenses (including attorney fees and expenses) incurred by the Indemnified Party in defending and settling the Claim.

Procedure for Claims. Within ten days after obtaining written -------------------- notice of any claim or demand which has given rise to, or could reasonably give rise to, If a claim for Damages (a "CLAIM") is to be made by a VerticalNet Indemnified Party or a Converge Indemnified Party entitled to indemnification hereunder, the party seeking Person claiming such indemnification (the "CLAIMING PARTY") shall give written notice of such claim (a "Notice of ClaimCLAIM NOTICE") to the other partyindemnifying Person (the "INDEMNIFYING PARTY") promptly after the Claiming Party becomes aware of any fact, condition or event which gives rise to Damages for which indemnification may be sought under this Section 11.2. Failure The failure of any Claiming Party to give such timely notice by the party seeking indemnification within said ten day period hereunder shall not relieve the indemnifying party of its obligations hereunder, affect rights to indemnification hereunder unless the failure rights of or remedies available to so notify the identifying party actually results in ------------------------- ------------------- CUSIP NOIndemnifying Party are prejudiced by such failure, and then only to the extent thereof. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage In the event that fact or prejudice to such indemnifying party. Notice of Claim shall set forth a brief description of the facts giving circumstance gives rise to such claim and the amount (a breach of more than one representation or a reasonable estimate) of the loss, damage or expense suffered, or which may be suffered, warranty by the party seeking indemnification. Upon receiving the Notice of Claiman Indemnifying Party, the indemnifying party Claiming Party shall resist, settle only be entitled to a make a Claim under one such representation or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, warranty and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counsel. The indemnified party shall not have the right to employ separate counsel make a Claim under any other representation or warranty at any time. In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a "THIRD-PARTY CLAIM"), if the Indemnifying Party shall acknowledge in any such action and writing to participate in or assume the defense thereof, but Claiming Party that the fees and expenses of such counsel Indemnifying Party shall be at obligated to indemnify the indemnified party's expense unless Claiming Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (i) the employment has been specifically authorized Indemnifying Party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense, (A) to take control of the defense and investigation of such Third-Party Claim and (B) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including employing and engaging attorneys of its own choice reasonably acceptable to the indemnifying party in writingClaiming Party to handle and defend the same, and (ii) the indemnifying party has failed Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Claiming Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and employ counsel investigation of such lawsuit or other legal action in a timely manner or (iii) accordance with this Section 11.2(b), the Claiming Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, if the named parties Persons to any a lawsuit or other legal action (including any impleaded parties) include both Investor the Indemnifying Party and the Company, Claiming Party and the indemnified party Claiming Party has been advised in writing by such counsel that representation there may be one or more legal defenses available to such Claiming Party that are different from or additional to those available to the Indemnifying Party, the Claiming Party shall be entitled, at the Indemnifying Party's cost, risk and expense, to retain one firm of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of its own choosing. If the Indemnifying party, the indemnifying party shall have neither the right nor the obligation Party fails to assume the defense of such action Third-Party Claim in accordance with this Section 11.2(b) within 10 Business Days after receipt of the Claim Notice, the Claiming Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the indemnified party).account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Claiming Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Claiming Party assumes the defense of the claim, the Claiming Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of

Procedure for Claims. Within ten days after obtaining written -------------------- notice of any claim or demand which has given rise to, or could reasonably give rise to, ' a claim for indemnification hereunder, the party parry seeking indemnification shall give written notice of such claim ("'Notice of Claim"claim') to the other partyparry. Failure to give such notice by the party parry seeking indemnification within said ten day period shall not relieve the indemnifying party of its obligations hereunder, unless and only to the extent the failure to so notify the identifying party actually results in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to such indemnifying party. Notice of Claim shall set forth a brief description of the facts giving rise to such claim and the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counselcounsel provided that the indemnifying party shall not settle such claim without the consent of the indemnified party which will not be unreasonably withheld. The indemnified party shall have the right to employ separate counsel in any such action and to participate in or assume the defense thereof, but the fees and expenses of such counsel shall be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writing, (ii) the indemnifying party has failed to assume the defense and employ counsel in a timely manner or (iii) the named parties to any action (including any impleaded parties) include both Investor and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of the Indemnifying indemnifying party, the indemnifying party shall have neither the right nor the obligation to assume the defense of such action on behalf of the indemnified party).

Procedure for Claims. Within ten days after obtaining written -------------------- notice of any claim or demand which has given rise to, or could reasonably give rise to, If a claim for Damages (a "CLAIM") is to be made by a person entitled to indemnification hereunder, the party seeking person claiming such indemnification (the "INDEMNIFIED PARTY") shall give written notice of such claim (a "Notice of ClaimCLAIM NOTICE") to the other partyindemnifying person (the "INDEMNIFYING PARTY") promptly after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.2 PROVIDED, that if the Indemnified Party is a Stockholder Indemnified Party, such Claim Notice shall only be valid if it is delivered by the Stockholder Representative; and PROVIDED FURTHER, that if the Indemnified Party is a Parent Indemnified Party, such Claim Notice shall be valid if it is delivered to the Stockholder Representative. Failure The failure of any Indemnified Party to give such timely notice by the party seeking indemnification within said ten day period hereunder shall not relieve affect rights to indemnification hereunder, except and only to the indemnifying extent that, the Indemnifying Party demonstrates actual material damage caused by such failure, and then only to the extent thereof. In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a "THIRD-PARTY CLAIM"), if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its obligations hereunder, unless the failure to so notify the identifying party actually results indemnity hereunder in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to connection with such indemnifying party. Notice of Claim shall set forth a brief description of the facts giving rise to such claim and the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification. Upon receiving the Notice of Third-Party Claim, then (A) the indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and Indemnifying Party shall be responsible for the payment of all expensesentitled and, including the reasonable fees and expenses of such counsel. The indemnified party shall have the right to employ separate counsel in any such action and to participate in or assume the defense thereofif it so elects, but the fees and expenses of such counsel shall be obligated at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writingits own cost, risk and expense, (ii1) the indemnifying party has failed to assume take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ counsel in a timely manner or and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (iiiB) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b), the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; PROVIDED that, if the named parties persons to any a lawsuit or other legal action (including any impleaded parties) include both Investor the Indemnifying Party and the Company, Indemnified Party and the indemnified party Indemnified Party has been advised in writing by such counsel that representation there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall be entitled, at the Indemnifying Party's cost, risk and expense, to retain one firm of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of its own choosing. If the Indemnifying party, the indemnifying party shall have neither the right nor the obligation Party fails to assume the defense of such action Third-Party Claim in accordance with this Section 9.2 within ten (10) calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the indemnified partyaccount of the Indemnifying Party; PROVIDED that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 9.2 and for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason of such settlement or judgment.

Procedure for Claims. Within ten days after obtaining written -------------------- i. If, prior to the Second Release Date, Surety shall discover, incur or receive notice of the existence of any claim Claim, whether liquidated or demand unliquidated, accrued or contingent, asserted or unasserted, for which has given rise to, an Indemnified Party claims reimbursement or could reasonably give rise to, a claim for indemnification indemnity hereunder, the party seeking indemnification Surety shall promptly give written notice thereof to the Representative and Escrow Agent by delivering a certificate (a "Claim Certificate") which shall be signed by the President or a Vice President of Surety to the effect that an Indemnified Party has a Claim in the amount specified in such Claim Certificate and setting forth the basis for such Claim. Upon receipt of any such Claim Certificate, Escrow Agent shall, as soon as practicable (but not earlier than seven (7) business days after the delivery to Escrow Agent of such claim ("Notice of Claim"Claim Certificate) deliver to the other partyIndemnified Party Escrowed Funds equal to the amount of the Claim as set forth in the Claim Certificate. Failure Unless, within five (5) business days after delivery to give the Representative of any Claim Certificate, the Representative gives written notice to Surety and Escrow Agent that the Representative questions the accuracy of, or matters included in, such Claim Certificate, such Claim Certificate shall constitute full authority to Escrow Agent to take the action provided for in this SECTION 4.B and shall be conclusive on all parties hereto. ii. If the Representative gives notice questioning the accuracy of, or matters included in, a Claim Certificate, Escrow Agent shall not distribute to an Indemnified Party any Escrowed Funds or make any indemnification payment to an Indemnified Party pursuant to this SECTION 4.B until Escrow Agent receives (i) the written consent of the Representative to such indemnifying payment or (ii) a Final Determination with respect to the dispute. After notice by the party seeking indemnification within said ten day period shall not relieve Representative of disagreement with the indemnifying party of its obligations hereunderaccuracy of, unless or matters included in, a Claim Certificate, either Surety or any other Indemnified Party (on the failure to so notify one hand) or the identifying party actually results Representative (on the other hand), may submit and settle such disagreement by arbitration in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to such indemnifying party. Notice of Claim shall set forth a brief description accordance with the Commercial Arbitration Rules, existing at the date thereof, of the facts giving rise American Arbitration Association (the "Rules"). The dispute shall be submitted to such claim one arbitrator agreed to by Surety and the amount (or a reasonable estimate) of Representative or, if Surety and the loss, damage or expense suffered, or which may be sufferedRepresenta tive cannot agree on one arbitrator, by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resist, settle or otherwise dispose of such claim three arbitrators selected in such manner as it shall deem appropriate, including the employment of counselaccordance with said Rules, and shall be responsible for heard in Fort Worth, Texas. Each arbitrator must be experienced in the payment of all expenses, including the reasonable fees subject matter in dispute. The costs and expenses of the arbitration shall be paid by the non-prevailing party in such counselarbitration. The indemnified party If an Indemnified Party is the prevailing party, a Claim may be made against the Escrowed Funds for such costs and expenses. iii. In the event of any Claim asserted against an Indemnified Party by a third party, the Indemnified Party shall have immediately notify the right to employ separate counsel in any such action and to participate in or assume the defense Representative thereof, but and permit the fees and expenses of such counsel shall be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writingRepresenta- tive, (ii) the indemnifying party has failed to assume the defense and employ counsel in a timely manner or (iii) the named parties to any action (including any impleaded parties) include both Investor and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense on behalf of the Indemnifying partyParties, the indemnifying party shall have neither the right nor the obligation to assume the defense of any such action Claim or any litigation resulting therefrom; provided, however, that counsel for the Representative, on behalf of the indemnified Indemnify ing Parties, who shall conduct the defense of such Claim or any litigation resulting therefrom, shall be approved by the Indemnified Party or Parties against whom the Claim for which indemnification is sought is made (whose approval shall not be unreasonably withheld), and the Indemnified Party or Parties may participate in such defense at such party)'s expense. The failure of any Indemnified Party to give notice to the Representative as provided herein shall not relieve the Indemnifying Parties of their obligations under this Escrow Agreement unless such failure to give notice results in the forfeiture of substantive rights or defenses of the Indemnifying Parties. The Representative, in the defense of any such Claim or litigation, shall not, except with the consent of the relevant Indemnified Party or Parties, which consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement with regard to such Claim or litigation. The Indemnified Parties shall furnish such information regarding themselves or the Claim in question as the Representative may reasonably request in writing and as shall be reasonably required in connection with the defense of such Claim and litigation resulting therefrom. The Representative shall advise the Indemnified Parties from time to time of the status of such defense. The attorney fees, costs, and other expenses related to Representative's defending or litigating a Claim shall be paid from the Escrowed Funds from time to time as approved in writing by the Representative and Surety. Notwithstanding the above rights of Representative to defend and litigate a Claim, Surety may, by written notice to the Representative and Escrow Agent, terminate such defense and litigation and direct that the Claim be paid in full if Surety reasonably determines, after consultation with its counsel, that the sum of (A) the estimated costs of defending and litigating such Claim, (B) the estimated costs of paying such Claim if the defense and litigation is unsuccessful, and (C) the total of all other Claims for which the requisite notice has been given, exceeds seventy-five percent (75%) of the total of the Escrowed Funds then held by Escrow Agent. iv. If the Representative does not assume the defense of any such Claim or commence settlement negotiations within thirty (30) days of receiving the notice provided in SECTION 4.b.iii above, or such shorter period of time if applicable because of procedural requirements, and pursue such defense or settlement proceedings with reasonable diligence, the Indemnified Party may assume such defense or commence such settlement negotiations and may further consent to entry of a judgement or enter into a settlement of such Claim or litigation on behalf of the Indemnifying Parties. In such event, the Indemnified Party may submit a Claim Certificate to Escrow Agent from time to time for the costs and expenses (including attorney fees and expenses) incurred by the Indemnified Party in defending and settling the Claim.

Procedure for Claims. Within ten days after obtaining written -------------------- notice of any claim or demand which has given rise to, or could reasonably give rise to, If a claim for indemnification hereunderby a third party is made against any indemnified party, and if the indemnified party seeking indemnification intends to seek indemnity with respect thereto under this Article 8, such indemnified party shall give promptly provide written notice of such claim ("Notice of Claim") to the other party. Failure to give such notice by the party seeking indemnification within said ten day period shall not relieve the indemnifying party of its obligations hereundersuch claim, unless including the failure amount of the claim to so notify the identifying extent then known. With respect to claims for indemnification made under this Article 8, other than claims with respect to certain items specified in Section 8.1 dealing with Taxes and environmental matters, an indemnifying party actually results in ------------------------- ------------------- CUSIP NOshall be liable to an indemnified party only if such written notice of the claim for indemnification is given by the indemnified party to the indemnifying party prior to the expiration of the Indemnity Period. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to If such notice is timely given, the indemnifying party. Notice of Claim 's obligation to indemnify the indemnified party shall set forth a brief description survive the expiration of the facts giving rise Indemnity Period until resolved. If the indemnifying party hereunder is Seller, references in this Section 8.4 to such claim and the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may actions to be suffered, taken by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resistmean and refer to the actions to be taken by the Shareholders collectively. The indemnifying party shall have twenty (20) days after receipt of the above-mentioned notice to undertake, settle conduct and control, through counsel of its own choosing (subject to the consent of the indemnified party, such consent not to be unreasonably withheld) and at its expense, the settlement or otherwise dispose defense therefor, and the indemnified party shall cooperate with it in connection therewith; provided that: (i) the indemnifying party shall not thereby permit to exist any Lien upon any asset of such claim any indemnified party, (ii) the indemnifying party shall permit the indemnified party to participate in such manner as it shall deem appropriatesettlement or defense through counsel chosen by the indemnified party, including with the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counselcounsel to be borne by the indemnifying party only if and to the extent that such counsel is necessary by reason of a demonstrable conflict of interest, and (iii) the indemnifying party shall agree promptly to reimburse the indemnified party for the full amount of any loss resulting from such claim and all related expenses incurred by the indemnified party pursuant to this Article 8. The So long as the indemnifying party is reasonably contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim. If the indemnifying party does not notify the indemnified party within twenty (20) days after receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to employ separate counsel contest, settle or compromise the claim in any such action and to participate in or assume the defense thereof, but the fees and expenses exercise of such counsel shall be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writing, (ii) the indemnifying party has failed to assume the defense and employ counsel in a timely manner or (iii) the named parties to any action (including any impleaded parties) include both Investor and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel its exclusive discretion at the expense of the Indemnifying indemnifying party, the indemnifying party shall have neither the right nor the obligation to assume the defense of such action on behalf of the indemnified party).

Procedure for Claims. Within ten days after obtaining written -------------------- notice of any claim or demand which has given rise to, or could reasonably give rise to, If a claim for indemnification hereunderby a third party is made against any indemnified party, and if the indemnified party seeking indemnification intends to seek indemnity with respect thereto under this Article 9, such indemnified party shall give promptly provide written notice of such claim ("Notice of Claim") to the other party. Failure to give such notice by the party seeking indemnification within said ten day period shall not relieve the indemnifying party of its obligations hereundersuch claim, unless including the failure amount of the claim to so notify the identifying extent then known. With respect to claims for indemnification made under this Article 9, other than claims with respect to the Specified Provisions, an indemnifying party actually results in ------------------------- ------------------- CUSIP NOshall be liable to an indemnified party only if such written notice of the claim for indemnification is given by the indemnified party to the indemnifying party prior to the expiration of the Indemnity Period; with respect to claims under the Specified Provisions, such notice can be given at any time after the Effective Time. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to If such notice is timely given, the indemnifying party. Notice of Claim 's obligation to indemnify the indemnified party shall set forth a brief description survive the expiration of the facts giving rise Indemnity Period until resolved. If the indemnifying party hereunder is Xxxxxxxx Motorcoach or the Shareholders, references in this section 9.4 to such claim and the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may actions to be suffered, taken by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resistmean and refer to the actions to be taken by the Shareholders collectively. The indemnifying party shall have 20 days after receipt of the above-mentioned notice to undertake, settle conduct and control, through counsel of its own choosing (subject to the consent of the indemnified party, such consent not to be unreasonably withheld) and at its expense, the settlement or otherwise dispose defense therefor, and the indemnified party shall cooperate with it in connection therewith; provided that: (i) the indemnifying party shall not thereby permit to exist any Lien upon any asset of such claim any indemnified party, (ii) the indemnifying party shall permit the indemnified party to participate in such manner as it shall deem appropriatesettlement or defense through counsel chosen by the indemnified party, including with the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counselcounsel to be borne by the indemnifying party only if and to the extent that such counsel is necessary by reason of a demonstrable conflict of interest, and (iii) the indemnifying party shall agree promptly to reimburse the indemnified party for the full amount of any loss (subject to the limitations contained in sections 9.2 and 9.3) resulting from such claim and all related expenses incurred by the indemnified party pursuant to this Article 9. The So long as the indemnifying party is reasonably contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim. If the indemnifying party does not notify the indemnified party within 20 days after receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to employ separate counsel contest, settle or compromise the claim in any such action and to participate in or assume the defense thereof, but the fees and expenses exercise of such counsel shall be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writing, (ii) the indemnifying party has failed to assume the defense and employ counsel in a timely manner or (iii) the named parties to any action (including any impleaded parties) include both Investor and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel its exclusive discretion at the expense of the Indemnifying indemnifying party, the indemnifying party shall have neither the right nor the obligation to assume the defense of such action on behalf of the indemnified party).

Procedure for Claims. Within ten thirty days after obtaining written -------------------- notice of any claim or demand which has given rise to, or could reasonably give rise to, a claim for indemnification hereunder, the party seeking indemnification shall give written notice of such claim ("Notice of Claim") to the other party. Failure to give such notice by the party seeking indemnification within said ten thirty-day period shall not relieve the indemnifying party of its obligations hereunder, unless and only to the extent that the failure to so notify the identifying indemnifying party actually results in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to such indemnifying party. The Notice of Claim shall set forth a brief description of the facts giving rise to such claim and the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counsel. The indemnified party shall have the right to employ separate counsel in any such action and to participate in or assume the defense thereof, but the fees and expenses of such counsel shall be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writing, (ii) the indemnifying party has failed to assume the defense and employ counsel in a timely manner or (iii) the named parties to any any. action (including any impleaded parties) include both Investor Purchaser and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor Purchaser by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of the Indemnifying indemnifying party, the indemnifying party shall have neither the right nor the obligation to assume the defense of such action on behalf of the indemnified party).

Procedure for Claims. Within If any indemnified Party suffers or incurs any Losses or is presented with any Claim, the indemnified Party will promptly (but in any event within ten (10) days after obtaining written -------------------- notice of any claim such incurrence or demand presentment) notify the indemnifying Party in writing, which has given rise tomay be in electronic format, or could reasonably give rise to, a claim describing its claims for indemnification hereunderin reasonable detail and offering the indemnifying Party the opportunity to assume full responsibility for the defense and resolution of the Claims giving rise to such Losses, at the party seeking indemnification shall give indemnifying Party’s sole cost and expense; provided, however, that (i) except with respect to an AEON IP Claim, failure by any indemnified Party to provide the indemnifying Party such written notice of such claim ("Notice of Claim") to the other party. Failure to give such notice by the party seeking indemnification within said ten day period shall not relieve the indemnifying party Party of its obligations hereunder, obligation to indemnify the applicable indemnified Part(ies) as set forth under this Agreement unless the failure to so notify the identifying party actually results in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to such indemnifying party. Notice of Claim shall set forth a brief description of the facts giving rise to such claim Party is materially and the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification. Upon receiving the Notice of Claim, the indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counsel. The indemnified party shall have the right to employ separate counsel in any such action and to participate in or assume the defense thereof, but the fees and expenses of such counsel shall be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writing, adversely affected thereby; (ii) neither the indemnifying party has failed Party nor its Representatives, insurers, or any other person shall enter into any settlement of any matters subject to assume indemnification under this Agreement without the defense and employ counsel in a timely manner applicable indemnified Party’s prior written consent to the extent it consents to injunctive relief or requires any admission of fault or any public statement or contains contract terms governing future activities that would materially affect the indemnified Party’s business or interests, said consent not to be unreasonably withheld, conditioned, or delayed; (iii) the named applicable indemnified parties shall be permitted to any action (including any impleaded parties) include both Investor participate in the selection of defense counsel and the Company, and the indemnified party has been advised by such counsel that representation of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of the Indemnifying party, the indemnifying party shall have neither the right nor the obligation to assume the defense of the claim, and (iv) if the indemnifying Party fails to oppose or defend against any such action on behalf suit or action, the applicable indemnified parties may oppose and defend against such claims at the indemnifying Party’s sole cost and expense (including reasonable and documented out-of-pocket attorneys’ fees and expenses). The non-indemnifying Party shall provide the indemnifying Party with all commercially reasonable non-financial assistance, information, and authority reasonably required for the defense and settlement of the indemnified party)a Claim subject to indemnification hereunder.

Procedure for Claims. Within ten days after obtaining written -------------------- notice of any claim or demand which has given rise to, or could reasonably give rise to, If a claim for indemnification pursuant to Section 10.2 (a "Claim") is to be made by a Parent Indemnified Party entitled to indemnification hereunder, the party seeking Parent Indemnified Party claiming such indemnification (the "Indemnified Party") shall give written notice of such claim (a "Notice of ClaimClaim Notice") to the other party. Failure Stockholder Representative promptly after the Indemnified Party becomes aware of any fact, condition or event which the Company reasonably anticipates may give rise to give Damages for which indemnification may be sought under this Section 10.2, and such notice by Claim Notice shall specify in reasonable detail the party seeking indemnification within said ten day period shall not relieve individual items of Damages, the indemnifying party of its obligations hereunder, unless basis for the failure to so notify anticipated liability and the identifying party actually results in ------------------------- ------------------- CUSIP NO. 450707 10 4 13D PAGE 14 OF 39 PAGES ------------------------- ------------------- damage or prejudice to such indemnifying party. Notice of Claim shall set forth a brief description nature of the facts breach of representation, warranty, covenant or agreement giving rise to such Damages. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party is damaged or prejudiced in any material respect by such failure, and then only to the extent thereof. In the case of a Claim brought pursuant to Section 10.2(a)(i) involving the assertion of a claim and by a third party (whether pursuant to a lawsuit, other legal action or otherwise, but not including any Tax Contest, a "Third-Party Claim"), if the amount (or a reasonable estimate) Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of the loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification. Upon receiving the Notice of its indemnity hereunder in connection with such Third-Party Claim, then (A) the indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and Stockholder Representative shall be responsible for the payment of all expensesentitled and, including the reasonable fees and expenses of such counsel. The indemnified party shall have the right to employ separate counsel in any such action and to participate in or assume the defense thereofif it so elects, but the fees and expenses of such counsel shall be obligated at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writingits own cost, risk and expense, (ii1) the indemnifying party has failed to assume take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ counsel in a timely manner or and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (iiiB) the Stockholder Representative shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Stockholder Representative elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 10.2(b), the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, if the named parties persons to any a lawsuit or other legal action (including any impleaded parties) include both Investor the Indemnifying Party and the Company, Indemnified Party and the indemnified party Indemnified Party has been advised in writing by such counsel that representation there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall be entitled, at the Indemnified Party's cost, risk and expense (if such Claim represents Damages for which indemnification is due), to retain one firm of the Company and the Investor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at of its own choosing. If the expense of the Indemnifying party, the indemnifying party shall have neither the right nor the obligation Stockholder Representative fails to assume the defense of such action Third-Party Claim in accordance with this Section 10.2(b) within fifteen (15) calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Stockholder Representative) have the right to undertake, at the Indemnifying Party's cost, risk and expense (if such Claim represents Damages for which indemnification is due), the defense, compromise and settlement of such Third-Party Claim on behalf of and for the indemnified partyaccount of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Stockholder Representative, which consent shall not be unreasonably withheld. In the event the Stockholder Representative assumes the defense of the claim, the Stockholder Representative shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Stockholder Representative reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 10.2(b) and for any final judgment (subject to any right of appeal).