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

Procedure for Indemnification; Defense of Third-Party Claims. (a) If an indemnification claim for Damages pursuant to this Section 6 (a “Claim”) is to be made by a Licensee Indemnitee hereunder for any matter not involving a third party claim, such claim shall be asserted by such Licensee Indemnitee by delivery of a written notice describing the claim with reasonable specificity, a good faith estimate of the amount thereof (if known) and the basis thereof (a “Claim Notice”) to Licensor as soon as reasonably practicable after the Licensee Indemnitee becomes aware of any fact, condition or event which is reasonably likely to give rise to Damages for which indemnification may be sought under this Section 6, provided, that the failure of a Licensee Indemnitee to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that Licensor demonstrates actual damage caused by such failure. Following the delivery of a Claim Notice, Licensor shall be given access (including electronic access, to the extent available) at reasonable times as they may reasonably require to the books and records of Licensee and access to such personnel or representatives of Licensee, including, but not limited to, the individuals responsible for the matters that are subject of the Claim Notice, at reasonable times as they may reasonably require for the purposes of investigating or resolving any disputes or responding to any matters or inquiries raised in the Claim Notice; provided that the Licensee Indemnitee shall be entitled to withhold information from Licensor if its provision to Licensor would cause the attorney-client privilege thereof to be waived and there is no method of providing such information to Licensor in a manner which would not result in such a waiver. (b) If a Claim is to be made by a Licensee Indemnitee as a result of a third-party claim (a “Third Party Claim”), the Licensee Indemnitee shall, subject to this Section 6, give a Claim Notice to Licensor with respect to such Claim as soon as practicable after the Licensee Indemnitee becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 6, provided, that the failure of a Licensee Indemnitee to give prompt notice hereunder shall not affect the rights to indemnification hereunder, except to the extent that Licensor demonstrates actual damage caused by such failure. If any lawsuit or enforcement action is filed by a third party against a Licensee Indemnitee, written notice thereof shall be given to Licensor as promptly as practicable, provided that the failure of Licensee to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that Licensor demonstrates actual damage caused by such failure. The Licensee Indemnitee shall be entitled, if it so elects at the cost and expense of the Licensee Indemnitee, to participate in the defense of such claim and consult with Licensor in any defense of such claim and Licensor shall consider in good faith any reasonable comments or recommendations of the Licensee Indemnitee with respect to the defense of such claim, it being understood that Licensor shall have the sole right to control such defense (including the right to settle any such claim); provided, further, that the parties shall cooperate in good faith to implement reasonable arrangements designed to preserve any existing attorney-client privilege; provided, further, that the Licensee Indemnitee shall be entitled to withhold information from Licensor if its provision to Licensor would cause the attorney-client privilege thereof to be waived and there is no method of providing such information to Licensor in a manner which would not result in such a waiver. (c) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which Licensee shall be entitled under this Section 6 shall be determined: (a) by the written agreement between Licensor and the Licensee Indemnitee; (b) by a decision of the Arbitrator as contemplated by Section 8.7; or (c) by any other means to which Licensor and the Licensee Indemnitee shall agree. Within thirty (30) days after delivery of a Claim Notice, Licensor shall deliver to Licensee a written response. If any dispute with respect to the matters set forth in the Claim Notice is not resolved within thirty (30) days following the delivery by Licensor of such response, Licensor and the Licensee Indemnitee shall each have the right to submit such dispute to dispute resolution in accordance with the provisions of Section 8.7. (d) If it shall be determined upon resolution of a Claim as provided herein that a Licensee Indemnitee is entitled to indemnification hereunder, Licensor may satisfy its indemnification obligations hereunder (the “Indemnity Amount”) by, at Licensor’s sole election, either (1) delivering to the Licensee Indemnitee a number of shares of Common Stock of Digital Turbine, Inc. having a market value equal to the dollar amount of the Indemnity Amount (which shares shall be valued for this purpose using the same methodology as set forth in Section 7.3(a) of the Appia Merger Agreement, applied to the shares of Digital Turbine, Inc. (collectively, the “DT Shares”) or (2) paying to Licensee such Indemnity Amount by check or by wire transfer of immediately available funds. DT Shares shall be issued in a private placement, without registration rights, subject to any restrictions required by applicable law. Licensor may require customary accredited investor and private placement representations in connection with any such issuance. Licensor shall, in addition to the Indemnity Amount, pay all reasonable costs, fees and expenses associated with the issuance of DT Shares hereunder including, without limitation, all reasonable attorneys’ fees and filing fees associated with the preparation of any private placement memorandum or other document required in connection with obtaining valid exemptions from the registration and qualification provisions of applicable federal and state securities laws.

Procedure for Indemnification; Defense of Third-Party Claims. (ai) If an indemnification claim for Damages pursuant to this Section 6 Article VII (a “Claim”) is to be made by a Licensee Parent Indemnitee hereunder for any matter not involving a third party claim, such claim shall may be asserted by such Licensee Indemnitee Parent by delivery of a written notice describing the claim with reasonable specificity, a good faith estimate of the amount thereof (if known) and the basis thereof (a “Claim Notice”) to Licensor the Stockholder Representative as soon as reasonably practicable after the Licensee Indemnitee Parent becomes aware of any fact, condition or event which has, or is reasonably likely to give rise to to, Damages for which indemnification may be sought under this Section 6Article VII, which Claim Notice shall specify in reasonable detail the facts giving rise to any claim for indemnification hereunder, and shall include (if then known) a good faith estimate of the amount or method of computation of the amount of Damages, and a reference to the provision of this Agreement upon which such Claim is based, provided, that the failure of a Licensee Indemnitee Parent to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that Licensor the Stockholder Representative demonstrates actual damage caused by such failure. Following the delivery of a Claim Notice, Licensor the Stockholder Representative and its Representatives shall be given access (including electronic access, to the extent available) at reasonable times as they may reasonably require to the books and records of Licensee the Company and access to such personnel or representatives of Licenseethe Company and its Representatives, including, including but not limited to, to the individuals responsible for the matters that are subject of the Claim Notice, at reasonable times as they may reasonably require for the purposes of investigating or resolving any disputes or responding to any matters or inquiries raised in the Claim Notice; provided that the Licensee Indemnitee Company and Parent shall be entitled to withhold information from Licensor the Stockholder Representative if its provision to Licensor the Stockholder Representative would cause the attorney-client privilege thereof to be waived and there is no method of providing such information to Licensor the Stockholder Representative in a manner which would not result in such a waiverwaiver (including after using good faith efforts to enter into a joint defense agreement). (bii) If a Claim is to be made by a Licensee Parent Indemnitee as a result of a third-party claim (a “Third Party Claim”)claim, the Licensee Indemnitee Parent shall, subject to this Section 6Article VII, give a Claim Notice to Licensor the Stockholder Representative with respect to such Claim as soon as practicable after the Licensee Indemnitee Parent becomes aware of any fact, condition or event which may has, or is reasonably likely to give rise to Damages for which indemnification may be sought under this Section 6Article VII, which Claim Notice shall specify in reasonable detail the facts giving rise to any claim for indemnification hereunder, and shall include (if then known) a good faith estimate of the amount or method of computation of the amount of Damages, and a reference to the provision of this Agreement upon which such Claim is based, provided, that the failure of a Licensee Indemnitee Parent to give prompt notice hereunder shall not affect the rights to indemnification hereunder, except to the extent that Licensor the Stockholder Representative demonstrates actual damage caused by such failure. If any lawsuit or enforcement action is filed by a third party against a Licensee Parent Indemnitee, written notice thereof shall be given to Licensor the Stockholder Representative as promptly as practicable, provided that the failure of Licensee Parent to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that Licensor the Stockholder Representative demonstrates actual damage caused by such failure. The Licensee Indemnitee Stockholder Representative shall be entitled, if it so elects at the cost cost, risk and expense of the Licensee IndemniteeCompany Equityholders, to participate in the defense of such claim and consult with Licensor Parent in any defense of such claim and Licensor Parent shall consider in good faith any reasonable comments or recommendations of the Licensee Indemnitee Stockholder Representative with respect to the defense of such claim, it being understood that Licensor Parent shall have the sole right to control such defense (including the right to settle any such claim)defense; provided, further, that the parties shall cooperate in good faith to implement reasonable arrangements designed to preserve any existing attorney-client privilege; provided, further, that the Licensee Indemnitee Parent shall be entitled to withhold information from Licensor the Stockholder Representative if its provision to Licensor the Stockholder Representative would cause the attorney-client privilege thereof to be waived and there is no method of providing such information to Licensor the Stockholder Representative in a manner which would not result in such a waiverwaiver (including after using good faith efforts to enter into a joint defense agreement). (ciii) Except for third-party claims involving or seeking any (A) non-monetary remedy or monetary Damages in excess of the then remaining Escrow Amount, (B) claims for equitable relief, (C) potential criminal liability or (D) alleged breaches of the Fundamental Representations, if the Stockholder Representative provides written notice to Parent within 15 days after receipt of a Claim Notice in respect of a third-party claim for which a Parent Indemnitee is seeking indemnification hereunder, which notice by the Stockholder Representative irrevocably acknowledges the Company Equityholders’ obligation to indemnify such claim fully, a Parent Indemnitee shall not enter into a settlement of such third-party claim without the prior written consent of the Stockholder Representative (such consent not to be unreasonably withheld, conditioned or delayed). If a Parent Indemnitee enters into any settlement of a third-party claim for which a Parent Indemnitee is ultimately determined to be entitled to indemnification hereunder without the consent of the Stockholder Representative, the Stockholder Representative shall not be precluded from contesting the amounts owed by the Company Equityholders in respect of such third-party claim, either on the basis that the settlement by the Parent Indemnitee was not reasonable in light of the circumstances of such third-party claim, that the third-party claim did not constitute, in whole or in part, an indemnifiable loss for purposes of this Article VII, or otherwise. (iv) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which Licensee a Parent Indemnitee shall be entitled under this Section 6 Article VII shall be determined: (a) by the written agreement between Licensor Parent and the Licensee IndemniteeStockholder Representative; (b) by a decision of the Arbitrator as contemplated by Section 8.79.16; or (c) by any other means to which Licensor Parent and the Licensee Indemnitee Stockholder Representative shall agreeagree in writing. Within thirty (30) days after delivery of a Claim Notice, Licensor the Stockholder Representative shall deliver to Licensee Parent a written response. If any dispute with respect to the matters set forth in the Claim Notice is not resolved within thirty (30) days following the delivery by Licensor the Stockholder Representative of such response, Licensor Parent and the Licensee Indemnitee Stockholder Representative shall each have the right to submit such dispute to dispute resolution in accordance with the provisions of Section 8.7. (d) 9.16. If it shall be determined upon resolution of a Claim as provided herein that a Licensee Parent Indemnitee is entitled to indemnification hereunder, Licensor may satisfy its indemnification obligations hereunder (the “Indemnity Amount”) by, at Licensor’s sole election, either (1) delivering to the Licensee such Parent Indemnitee a number of shares of Common Stock of Digital Turbine, Inc. having a market value equal to the dollar amount of the Indemnity Amount (which shares shall be valued for this purpose using the same methodology entitled to recover Damages as set forth provided in Section 7.3(a) of the Appia Merger Agreement, applied to the shares of Digital Turbine, Inc. (collectively, the “DT Shares”) or (2) paying to Licensee such Indemnity Amount by check or by wire transfer of immediately available funds. DT Shares shall be issued in a private placement, without registration rights, subject to any restrictions required by applicable law. Licensor may require customary accredited investor and private placement representations in connection with any such issuance. Licensor shall, in addition to the Indemnity Amount, pay all reasonable costs, fees and expenses associated with the issuance of DT Shares hereunder including, without limitation, all reasonable attorneys’ fees and filing fees associated with the preparation of any private placement memorandum or other document required in connection with obtaining valid exemptions from the registration and qualification provisions of applicable federal and state securities lawshereof.

Procedure for Indemnification; Defense of Third-Party Claims. (ai) If an indemnification claim a Claim for Damages pursuant to this Section 6 (a “Claim”) is to be made by a Licensee Buyer Indemnitee hereunder for any matter not involving a third party claim, such claim shall may be asserted by such Licensee Indemnitee the Buyer Indemnitees by delivery of a written notice describing Claim Notice to the claim with reasonable specificity, a good faith estimate of the amount thereof (if known) and the basis thereof (a “Claim Notice”) to Licensor Seller Representative as soon as reasonably practicable after the Licensee Indemnitee Buyer becomes aware of any fact, condition or event which is reasonably likely to give rise to Damages for which indemnification may be sought under this Section 6ARTICLE VIII, provided, that the failure of a Licensee Indemnitee Buyer to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that Licensor the Seller Representative demonstrates actual damage caused by such failure; further provided, that Buyer shall also provide a copy of any notice relating to a Seller Specific Claim to the applicable Responsible Seller. Following the delivery of a Claim Notice, Licensor the Seller Representative and its representatives and agents shall be given access (including electronic access, to the extent available) at reasonable times as they may reasonably require to the books and records of Licensee the Company and access to such personnel or representatives of Licenseethe Company and Buyer, including, including but not limited to, to the individuals responsible for the matters that are subject of the Claim Notice, at reasonable times as they may reasonably require for the purposes of investigating or resolving any disputes or responding to any matters or inquiries raised in the Claim Notice; provided that the Licensee Indemnitee Buyer Indemnitees shall be entitled to withhold information from Licensor the Seller Representative if its provision to Licensor the Seller Representative would cause the attorney-client privilege thereof to be waived and there is no method of providing such information to Licensor the Seller Representative in a manner which would not result in such a waiver. (bii) If a Claim for Damages is to be made by a Licensee Buyer Indemnitee hereunder as a result of a third-party claim (a “Third Party Claim”)claim, the Licensee Indemnitee Buyer shall, subject to this Section 6ARTICLE VIII, give a Claim Notice to Licensor the Seller Representative with respect to such Claim as soon as practicable after the Licensee Indemnitee Buyer becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 6ARTICLE VIII, provided, that the failure of a Licensee Indemnitee to give prompt notice hereunder shall not affect the rights to indemnification hereunder, except to the extent that Licensor demonstrates actual damage caused by such failure. If any lawsuit or enforcement action is filed by a third party against a Licensee Indemnitee, written notice thereof shall be given to Licensor as promptly as practicable, provided that the failure of Licensee Buyer to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that Licensor the Seller Representative demonstrates actual damage caused by such failure; further provided, that Buyer shall also provide a copy of any notice relating to a Seller Specific Claim to the applicable Responsible Seller. The Licensee Indemnitee Seller Representative shall be entitled, if it so elects at the cost its own cost, risk and expense (solely on behalf of the Licensee IndemniteeSellers), to participate in the defense of such claim and consult with Licensor Buyer in any defense of such claim and Licensor Buyer shall consider in good faith any reasonable comments or recommendations of the Licensee Indemnitee Seller Representative with respect to the defense of such claim, it being understood that Licensor Buyer shall have the sole right to control such defense (including the right to settle any such claim)defense; provided, furtherhowever, that the parties shall cooperate in good faith to implement reasonable arrangements designed to preserve any existing attorney-client privilege; provided, further, that the Licensee Indemnitee Buyer Indemnitees shall be entitled to withhold information from Licensor the Seller Representative if its provision to Licensor the Seller Representative would cause the attorney-client privilege thereof to be waived and there is no method of providing such information to Licensor the Seller Representative in a manner which would not result in such a waiver. (ciii) Except for third party claims (i) for which the actual settlement amount is in excess of the then-remaining Holdback Amount, (ii) involving or seeking any claims solely for equitable relief or non-monetary remedy, (iii) involving or seeking any potential criminal liability or (iv) involving or seeking any alleged breaches of the Fundamental Representations (any such third party claims described in clauses (i)-(iv), an “Excluded Third Party Claim”) and subject to the following sentence, the Buyer Indemnitees shall not, without the prior written consent of the Seller Representative (such consent not to be unreasonably withheld, conditioned or delayed), pay, compromise or settle any third party claim (any such third party claim (other than an Excluded Third Party Claim) a “Covered Third Party Claim”), provided that with respect to any Covered Third Party Claim that is a Seller Specific Claim, the Buyer Indemnitees shall not, without the prior written consent of the applicable Responsible Seller (such consent not to be unreasonably withheld, conditioned or delayed), pay, compromise or settle such third party claim (it being understood that the written consent of the Seller Representative shall not be required with respect to such payment, compromise or settlement if the applicable Responsible Seller has provided its written consent). Notwithstanding the foregoing, the Buyer Indemnitees shall have the right to pay, settle or compromise any such third party claim without consent of the Seller Representative (or, with respect to any Covered Third Party Claim that is a Seller Specific Claim, of the applicable Responsible Seller); provided, that in the event the Buyer Indemnitees settle, compromise or pay a Covered Third Party Claim without the consent of the Seller Representative (or, with respect to any Covered Third Party Claim that is a Seller Specific Claim, of the applicable Responsible Seller) and the Seller Representative (or, with respect to any Covered Third Party Claim that is a Seller Specific Claim, the applicable Responsible Seller) did not unreasonably withhold, condition or delay its consent to such settlement, compromise or payment, the Seller Representative (or, with respect to any Covered Third Party Claim that is a Seller Specific Claim, the applicable Responsible Seller) shall not be precluded from contesting the amounts owed by the Sellers in respect of such third party claim on the basis that the settlement by the Buyer Indemnitees was not reasonable in light of the circumstances of such third party claim or did not constitute, in whole or in part, an indemnifiable loss for purposes of this ARTICLE VIII. (iv) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which Licensee a Buyer Indemnitee shall be entitled under this Section 6 ARTICLE VIII shall be determined: (a) by the written agreement between Licensor Seller Representative and the Licensee IndemniteeBuyer; (b) by a decision of the Arbitrator as contemplated by Section 8.710.17; or (c) by any other means to which Licensor Seller 54 Representative and the Licensee Indemnitee Buyer shall agree. Within thirty (30) days after delivery of a Claim Notice, Licensor Seller Representative shall deliver to Licensee Buyer a written response. If any dispute with respect to the matters set forth in the Claim Notice is not resolved within thirty (30) days following the delivery by Licensor Seller Representative of such response, Licensor Seller Representative and the Licensee Buyer Indemnitee shall each have the right to submit such dispute to dispute resolution in accordance with the provisions of Section 8.7. (d) If it 10.17. Any amounts permitted to be retained from the Holdback Amount by the Buyer Indemnitees in accordance with the terms hereof shall be determined upon resolution of a Claim as provided herein that a Licensee Indemnitee is entitled to indemnification hereunder, Licensor may satisfy its indemnification obligations hereunder (the “Indemnity Amount”) by, at Licensor’s sole election, either (1) delivering to the Licensee Indemnitee a number of shares of Common Stock of Digital Turbine, Inc. having a market value equal to the dollar amount of the Indemnity Amount (which shares shall be valued for this purpose using the same methodology as set forth in Section 7.3(a) of the Appia Merger Agreement, applied to the shares of Digital Turbine, Inc. (collectively, the “DT Shares”) or (2) paying to Licensee such Indemnity Amount by check or by wire transfer of immediately available funds. DT Shares shall be issued in a private placement, without registration rights, subject to any restrictions required by applicable law. Licensor may require customary accredited investor and private placement representations in connection with any such issuance. Licensor shall, in addition to the Indemnity Amount, pay all reasonable costs, fees and expenses associated with the issuance of DT Shares hereunder including, without limitation, all reasonable attorneys’ fees and filing fees associated with the preparation of any private placement memorandum or other document required in connection with obtaining valid exemptions retained 79% from the registration Holdback Cash Amount and qualification provisions of applicable federal and state securities laws21% from the Holdback Stock Amount.

Procedure for Indemnification; Defense of Third-Party Claims. (ai) If an indemnification claim for Damages pursuant to this Section 6 Article VII (a “Claim”) is to be made by a Licensee Indemnitee an indemnified party hereunder for any matter not involving a third party claim, such claim shall be asserted by such Licensee Indemnitee the indemnified party by delivery of a written notice describing the claim with reasonable specificity, a good faith estimate of the amount thereof (if known) and the basis thereof (a “Claim Notice”) to Licensor the indemnifying party as soon as reasonably practicable after the Licensee Indemnitee indemnified party becomes aware of any fact, condition or event which is reasonably likely to give rise to Damages for which indemnification may be sought under this Section 6Article VII, provided, that the failure of a Licensee Indemnitee the indemnified party to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that Licensor the indemnifying party demonstrates actual damage caused by such failure. Following the delivery of a Claim Notice, Licensor the indemnifying party and its Representatives shall be given access (including electronic access, to the extent available) at reasonable times as they may reasonably require to the books Books and records Records of Licensee the Company and Pocket Gear and access to such personnel or representatives of Licenseethe Company and its Representatives, including, including but not limited to, to the individuals responsible for the matters that are subject of the Claim Notice, at reasonable times as they may reasonably require for the purposes of investigating or resolving any disputes or responding to any matters or inquiries raised in the Claim Notice; provided that the Licensee Indemnitee indemnified party shall be entitled to withhold information from Licensor the indemnifying party if its provision to Licensor the indemnifying party would cause the attorney-client privilege thereof to be waived and there is no method of providing such information to Licensor the indemnifying party in a manner which would not result in such a waiver. (bii) If a Claim is to be made by a Licensee Indemnitee an indemnified party as a result of a third-party claim (a “Third Party Claim”), the Licensee Indemnitee indemnified party shall, subject to this Section 6Article VII, give a Claim Notice to Licensor the indemnifying party with respect to such Claim as soon as practicable after the Licensee Indemnitee 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 6Article VII, provided, that the failure of a Licensee Indemnitee the indemnified party to give prompt notice hereunder shall not affect the rights to indemnification hereunder, except to the extent that Licensor the indemnifying party demonstrates actual damage caused by such failure. If any lawsuit or enforcement action is filed by a third party against a Licensee Indemniteean indemnified party, written notice thereof shall be given to Licensor the indemnifying party as promptly as practicable, provided that the failure of Licensee the indemnified party to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that Licensor the indemnifying party demonstrates actual damage caused by such failure. The Licensee Indemnitee Stockholder Representative shall be entitled, if it so elects at the cost and expense of the Licensee IndemniteeCompany Equityholders, to participate in the defense of such claim and consult with Licensor Parent in any defense of such claim and Licensor Parent shall consider in good faith any reasonable comments or recommendations of the Licensee Indemnitee Stockholder Representative with respect to the defense of such claim, it being understood that Licensor Parent shall have the sole right to control such defense (including the right to settle any such claim, subject to Section 7.2(e)(iii), if applicable); provided, further, that the parties shall cooperate in good faith to implement reasonable arrangements designed to preserve any existing attorney-client privilege; provided, further, that the Licensee Indemnitee indemnified party shall be entitled to withhold information from Licensor the indemnifying party if its provision to Licensor the indemnifying party would cause the attorney-client privilege thereof to be waived and there is no method of providing such information to Licensor the indemnifying party in a manner which would not result in such a waiver. (ciii) Except for third-party claims (A) seeking non-monetary remedy, (B) seeking claims for equitable relief, or (C) involving potential criminal liability, if the Stockholder Representative provides written notice to Parent within 30 days after receipt of a Claim Notice in respect of a third-party claim for which a Parent Indemnitee is seeking indemnification hereunder, which notice by the Stockholder Representative irrevocably acknowledges the Company Equityholders’ obligation to indemnify such claim fully, a Parent Indemnitee shall not enter into a settlement of such third-party claim without the prior written consent of the Stockholder Representative (such consent not to be unreasonably withheld, conditioned or delayed). (iv) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which Licensee an indemnified party shall be entitled under this Section 6 Article VII shall be determined: (a) by the written agreement between Licensor Parent and the Licensee IndemniteeStockholder Representative; (b) by a decision of the Arbitrator as contemplated by Section 8.79.16; or (c) by any other means to which Licensor Parent and the Licensee Indemnitee shall agree. Within thirty (30) days after delivery of a Claim Notice, Licensor shall deliver to Licensee a written response. If any dispute with respect to the matters set forth in the Claim Notice is not resolved within thirty (30) days following the delivery by Licensor of such response, Licensor and the Licensee Indemnitee shall each have the right to submit such dispute to dispute resolution in accordance with the provisions of Section 8.7. (d) If it shall be determined upon resolution of a Claim as provided herein that a Licensee Indemnitee is entitled to indemnification hereunder, Licensor may satisfy its indemnification obligations hereunder (the “Indemnity Amount”) by, at Licensor’s sole election, either (1) delivering to the Licensee Indemnitee a number of shares of Common Stock of Digital Turbine, Inc. having a market value equal to the dollar amount of the Indemnity Amount (which shares shall be valued for this purpose using the same methodology as set forth in Section 7.3(a) of the Appia Merger Agreement, applied to the shares of Digital Turbine, Inc. (collectively, the “DT Shares”) or (2) paying to Licensee such Indemnity Amount by check or by wire transfer of immediately available funds. DT Shares shall be issued in a private placement, without registration rights, subject to any restrictions required by applicable law. Licensor may require customary accredited investor and private placement representations in connection with any such issuance. Licensor shall, in addition to the Indemnity Amount, pay all reasonable costs, fees and expenses associated with the issuance of DT Shares hereunder including, without limitation, all reasonable attorneys’ fees and filing fees associated with the preparation of any private placement memorandum or other document required in connection with obtaining valid exemptions from the registration and qualification provisions of applicable federal and state securities laws.the

Procedure for Indemnification; Defense of Third-Party Claims. (ai) If an indemnification claim for Damages pursuant to this Section 6 Article VII (a “Claim”) is to be made by a Licensee Indemnitee an indemnified party hereunder for any matter not involving a third party claim, such claim shall be asserted by such Licensee Indemnitee the indemnified party by delivery of a written notice describing the claim with reasonable specificity, a good faith estimate of the amount thereof (if known) and the basis thereof (a “Claim Notice”) to Licensor the indemnifying party as soon as reasonably practicable after the Licensee Indemnitee indemnified party becomes aware of any fact, condition or event which is reasonably likely to give rise to Damages for which indemnification may be sought under this Section 6Article VII, provided, that the failure of a Licensee Indemnitee the indemnified party to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that Licensor the indemnifying party demonstrates actual damage caused by such failure. Following the delivery of a Claim Notice, Licensor the indemnifying party and its Representatives shall be given access (including electronic access, to the extent available) at reasonable times as they may reasonably require to the books Books and records Records of Licensee the Company and Protonex LLC and access to such personnel or representatives of Licenseethe Company and its Representatives, including, including but not limited to, to the individuals responsible for the matters that are subject of the Claim Notice, at reasonable times as they may reasonably require for the purposes of investigating or resolving any disputes or responding to any matters or inquiries raised in the Claim Notice; provided that the Licensee Indemnitee indemnified party shall be entitled to withhold information from Licensor the indemnifying party if its provision to Licensor the indemnifying party would cause the attorney-client privilege thereof to be waived and there is no method of providing such information to Licensor the indemnifying party in a manner which would not result in such a waiver. (bii) If a Claim is to be made by a Licensee Indemnitee an indemnified party as a result of a third-party claim (a “Third Party Claim”), the Licensee Indemnitee indemnified party shall, subject to this Section 6Article VII, give a Claim Notice to Licensor the indemnifying party with respect to such Claim as soon as practicable after the Licensee Indemnitee 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 6Article VII, provided, that the failure of a Licensee Indemnitee the indemnified party to give prompt notice hereunder shall not affect the rights to indemnification hereunder, except to the extent that Licensor the indemnifying party demonstrates actual damage caused by such failure. If any lawsuit or enforcement action is filed by a third party against a Licensee Indemniteean indemnified party, written notice thereof shall be given to Licensor the indemnifying party as promptly as practicable, provided that the failure of Licensee the indemnified party to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that Licensor the indemnifying party demonstrates actual damage caused by such failure. The Licensee Indemnitee Stockholder Representative shall be entitled, if it so elects at the cost and expense of the Licensee IndemniteeCompany Stockholders, to participate in the defense of such claim and consult with Licensor in any defense of such claim and Licensor Parent shall consider in good faith any reasonable comments or recommendations of the Licensee Indemnitee Stockholder Representative with respect to the defense of such claim, it being understood that Licensor the Parent shall have the sole right to control such defense (including the right to settle any such claim, subject to Section 7.2(e)(iii), if applicable); provided, further, that the parties shall cooperate in good faith to implement reasonable arrangements designed to preserve any existing attorney-client privilege; provided, further, that the Licensee Indemnitee indemnified party shall be entitled to withhold information from Licensor the indemnifying party if its provision to Licensor the indemnifying party would cause the attorney-client privilege thereof to be waived and there is no method of providing such information to Licensor the indemnifying party in a manner which would not result in such a waiver. (ciii) Except for third-party claims (A) seeking non-monetary remedy, (B) seeking claims for equitable relief, or (C) involving potential criminal liability, if the Stockholder Representative provides written notice to Parent within 30 days after receipt of a Claim Notice in respect of a third-party claim for which a Parent Indemnitee is seeking indemnification hereunder, which notice by the Stockholder Representative irrevocably acknowledges the Company Stockholders’ obligation to indemnify such claim fully, a Parent Indemnitee shall not enter into a settlement of such third-party claim without the prior written consent of the Stockholder Representative (such consent not to be unreasonably withheld, conditioned or delayed). (iv) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which Licensee an indemnified party shall be entitled under this Section 6 Article VII shall be determined: (a) by the written agreement between Licensor Parent and the Licensee IndemniteeStockholder Representative; (b) by a decision of the Arbitrator as contemplated by Section 8.79.16; or (c) by any other means to which Licensor Parent and the Licensee Indemnitee Stockholder Representative shall agree. Within thirty (30) days after delivery of a Claim Notice, Licensor the indemnifying party shall deliver to Licensee the indemnified party a written response. If any dispute with respect to the matters set forth in the Claim Notice is not resolved within thirty (30) days following the delivery by Licensor the indemnifying party of such response, Licensor Parent and the Licensee Indemnitee Stockholder Representative shall each have the right to submit such dispute to dispute resolution in accordance with the provisions of Section 8.7. (d) 9.16. If it shall be determined upon resolution of a Claim as provided herein that a Licensee Parent Indemnitee is entitled to indemnification hereunder, Licensor may such Parent Indemnitee shall be entitled to recover Damages as provided in Section 7.2(a) hereof. If it shall be determined upon resolution of a Claim as provided herein that a Company Stockholder Indemnitee is entitled to recover any amount from Parent pursuant to this Article VII, Parent shall satisfy its indemnification obligations hereunder (the “Indemnity Amount”) by, at LicensorParent’s sole election, either (1A) delivering to the Licensee Indemnitee a number of Company Stockholder Indemnitees shares of Parent Common Stock of Digital Turbine, Inc. having a market value equal to the dollar such amount of the Indemnity Amount (which shares shall be valued at the Price Per Share for this purpose using the same methodology as set forth in Section 7.3(a) of the Appia Merger Agreement, applied to the shares of Digital Turbine, Inc. (collectively, the “DT Shares”purpose) or (2B) paying to Licensee the Company Stockholder Indemnitees such Indemnity Amount amount by check or by wire transfer of immediately available funds. DT Shares shall be issued in a private placement, without registration rights, subject to any restrictions required by applicable law. Licensor may require customary accredited investor and private placement representations in connection with any such issuance. Licensor shall, in addition to the Indemnity Amount, pay all reasonable costs, fees and expenses associated with the issuance of DT Shares hereunder including, without limitation, all reasonable attorneys’ fees and filing fees associated with the preparation of any private placement memorandum or other document required in connection with obtaining valid exemptions from the registration and qualification provisions of applicable federal and state securities laws.