Common use of Procedure for Third Party Claims Clause in Contracts

Procedure for Third Party Claims. Any person that intends to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (the "Indemnitor") of such claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnification.

Procedure for Third Party Claims. Any person that intends 9.5.1 If the claim notified to the Warrantor is a result of or in connection with a claim indemnification under this Article 13 by or liability to a third party then: (an "Indemnitee"a) arising out of a Third Party no admissions in relation to such third party claim shall promptly notify be made by or on behalf of the indemnifying party Warrantee and the claim shall not be compromised, disposed of or settled without the prior written consent of the Warrantor; (b) the "Indemnitor") of such claim in respect of which Warrantor shall be entitled at its own expense, by notice to the Indemnitee intends to claim such indemnifi- cationCompany and the Warrantee, and the Indemnitor shallCompany and the Warrantee shall duly and fully co-operate to allow the Warrantor, to take such action as it deems necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such claim or liability (including making counterclaims or other claims against third parties) in the extent applicablename of and on behalf of the Warrantee, assume the defense thereof with counsel mutually satisfactory Company or its relevant Affiliate, as the case may be, and to control the partiesconduct of any related proceedings, negotiations or appeals; providedand (c) where the Warrantor has issued a notice pursuant to Clause (b), howeverthe Warrantee and the Company shall give, and shall procure that an Indemnitee shall have their Affiliates give, subject to being paid reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to retain examine and copy or photograph any assets, accounts, documents and records, as the Warrantor may reasonably request for the purpose referred to in Clause (b), including instructing such professional or legal advisors as the Warrantor may nominate to act on behalf of the Warrantee and the Company, but in accordance with the Warrantor’s instructions, it being agreed that the Warrantor shall keep the Warrantee and the Company informed of all relevant matters relating to the claim and shall forward or procure to be forwarded to the Warrantee and the Company copies of all material external correspondence (other than such correspondence as is subject to legal professional privilege of the Warrantor) relating to the claim. 9.5.2 If the Company or the Warrantor, as the case may be, conducts the defence of a claim, the Company or the Warrantor, as the case may be, shall conduct the defence to the best of its abilities, taking into account not only its own counselinterests but also the Warrantor’s and Warrantee’s or the Company’s interest, with as the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it case may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationbe.

Procedure for Third Party Claims. Any In the event any person that intends or entity not a party to this Agreement shall make any demand or claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in Liabilities, the indemnified party shall promptly notify give written notice to such effect to the indemnifying party promptly upon becoming aware thereof. In such event, within 20 days after written notice by the indemnified party (the "Indemnitor"“Notice”) of such demand, claim in respect of which or lawsuit, the Indemnitee intends to claim such indemnifi- cationindemnifying party shall have the right, at its sole cost and the Indemnitor shallexpense, to the extent applicable, take and assume full control of the defense thereof with and to hire counsel mutually (which counsel shall be reasonably satisfactory to the parties; indemnified party) to defend any such demand, claim or lawsuit (provided, however, that an Indemnitee the failure to give such Notice shall have not relieve the right indemnifying party of its obligations hereunder unless, and only to retain its own counselthe extent that, with such failure caused the reasonable fees and expenses thereof damages for which the indemnifying party is obligated to be paid greater than they would otherwise have been had the indemnified party given prompt notice hereunder). Thereafter, the indemnified party shall be permitted to participate in such defense at its sole cost and expense, provided that, if the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party or if the indemnifying party proposes that the same counsel represent both the indemnified party and the indemnifying party and representation of both parties by the Indemnitor, if representation of such Indemnitee by the same counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee them, then the indemnified party shall have the right to retain its own counsel at the cost and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent expense of the Indemnitor, which consent indemnifying party. In the event that the indemnifying party shall not be withheld unreasonably. Any Indemnitee's failure fail to deliver notice to respond within 20 days after receipt of the Indemnitor within a reasonable time after Notice from the commencement indemnified party of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any actiondemand, claim or liability covered by this indemnificationlawsuit, then the indemnified party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the indemnifying party. With regard to claims of third parties for which indemnification is payable hereunder, such indemnification shall be paid in advance of settlement or final adjudication thereof on a current basis within 30 days of receipt from the indemnified party of such supporting documentation as the indemnifying party may reasonably request.

Procedure for Third Party Claims. Any person that intends to (a) Promptly after obtaining knowledge of any claim or demand which has given rise to, or could reasonably give rise to, a claim for indemnification under this Article 13 hereunder, the party seeking indemnification shall give written notice of such claim (an "IndemniteeNotice of Claim") arising out to the other 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 liability, loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification, and shall be accompanied by all documentation in the case of a Third Party third-party claim shall promptly notify against the indemnified party. (b) Upon receiving the Notice of Claim, the indemnifying party (the "Indemnitor") shall resist, settle or otherwise dispose of such claim in respect such manner as it shall deem appropriate, including the employment of which the Indemnitee intends to claim such indemnifi- cationcounsel, and shall be responsible for the Indemnitor shallpayment of all settlements, to judgments, costs and expenses, including the extent applicable, assume the defense thereof with reasonable fees and expenses of any counsel mutually satisfactory to the parties; provided, however, that an Indemnitee retained. The indemnified party shall have the right to retain its own counselemploy separate counsel in any such action and to participate in the defense thereof, with but the reasonable fees and expenses thereof to of such counsel shall be paid at the indemnified party's expense unless: (i) the employment has been specifically authorized by the Indemnitorindemnifying party in writing; (ii) the indemnifying party has improperly failed to assume the defense and employ counsel; or (iii) the named parties to any action (including any impleaded parties) include the Buyer and/or the Company and the Shareholders, if and the indemnified party has been advised by such counsel that representation of such Indemnitee Buyer and/or the Company and Shareholders by the same counsel retained by the Indemnitor 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 Indemnitee and action on behalf of the indemnified party). (c) The party seeking indemnification shall comply with the foregoing procedure for each claim arising hereunder, whether or not the amount of such claims exceeds any other party represented by such counsel in such proceedingsminimum amount. The parties' indemnity obligations indemnified party shall cooperate with the indemnifying party in defending any such claim and provide any books, records, information or testimony requested, which is in the hands of or under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent control of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to indemnified party or obtainable by the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationindemnified party without unreasonable expense.

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (shall be given promptly after receipt by the "Indemnitor") Shareholder or the Company Indemnitee of actual knowledge of the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicableknown, and include copies of any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnified party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. If the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. (b) For actions where the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense thereof of and contest such action with counsel mutually satisfactory chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, the cost of such participation to be at its own expense. The indemnifying party shall pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the parties; providedextent that such fees and expenses relate to claims as to which indemnification is payable under Sections 6.2 or 6.3, howeveras such expenses are incurred. (c) Both the indemnifying party and the indemnified party shall cooperate fully with one another in connection with the defense, that an Indemnitee compromise, or settlement of any such claim or action, including, without limitation, by making available to the other all pertinent information and witnesses within its control. (d) No indemnified party shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and settle any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected brought against it without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13indemnifying party. The Indemnitee and its employees and agents indemnifying party shall cooperate fully with have the Indemnitor and its legal representatives in right to settle any action brought against an indemnified party as long as the investigation and defense indemnified party has been delivered a complete release as a condition of any action, claim or liability covered by this indemnificationthe settlement.

Procedure for Third Party Claims. Any person that intends The rights and obligations of the Indemnitee and Indemnitor with respect to claim indemnification under this Article 13 (an "Indemnitee") Indemnification Claims resulting from or arising out of a Third Party claim Claim shall be subject to the following conditions: (a) If a party receives notice of the assertion of any Third Party Claim for which it intends to make an Indemnification Claim, the Indemnitee shall promptly notify the indemnifying party provide written notice (the "Indemnitor"an “Indemnification Notice”) of such claim assertion to the Indemnitor; provided that failure of the Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of any of its obligations hereunder except to the extent the Indemnitor is prejudiced by such failure. The Indemnification Notice shall describe in reasonable detail the nature of the Third Party Claim and the basis for an Indemnification Claim and shall be accompanied by papers and documents which have been served upon the Indemnitee and such other documents and information as may be appropriate to an understanding of such Third Party Claim and the liability of the Indemnitor to indemnify the Indemnitee hereunder. (b) Upon receipt of an Indemnification Notice, the Indemnitor shall have the right and obligation to promptly assume the defense, negotiation and/or settlement of such Third Party Claim with counsel reasonably satisfactory to the Indemnitee, and shall give prompt written notice to the Indemnitee of its intent to do so. (c) Notwithstanding Section 9.4(b), if (i) an Indemnitee is obligated to permit an insurer to assume the defense of a Third Party Claim, (ii) an Indemnitee determines in good faith that there is a reasonable probability that a Third Party Claim may materially and adversely affect it or its Affiliates other than as a result of the payment of monetary damages, or (iii) the Indemnitor and Indemnitee are both named parties in a Third Party Claim and there are legal defenses available to the Indemnitee which are different from or in addition to those available to the Indemnitor, then, at the option of the Indemnitee, the Indemnitee may, by notice to the Indemnitor, reassume the defense, negotiation and/or settlement of any such Third Party Claim previously assumed by the Indemnitor and relieve Indemnitor of the obligation to assume its defense of the Third Party Claim, provided that the exercise of that option shall not relieve Indemnitor of its obligation to hold Indemnitee harmless and indemnify Indemnitee from Damages arising from such Third Party Claim. (d) If the Indemnitor does not assume the defense of such Third Party Claim in accordance with Section 9.4(b) or Indemnitee assumes its own defense as provided in Section 9.4(c), the Indemnitee shall have full authority to defend, negotiate, settle or otherwise dispose of any such Third Party Claim at the risk of and sole cost and expense of the Indemnitor; provided that the Indemnitee shall at all times act reasonably and in good faith as if it were ultimately liable with respect to such Third Party Claim. If the Indemnitee receives an offer to settle such Third Party Claim which offer satisfies the conditions in Section 9.4(f)(i)-(iv) it shall present such offer to the Indemnitor, and if the terms of such offer are acceptable to and can be performed by the Indemnitor, then the Indemnitor’s liability hereunder with respect to such Third Party Claim shall not exceed the Damages to which the Indemnitee intends to claim is entitled at the time of such indemnifi- cation, offer and the Indemnitor shallcost to implement the terms of such settlement offer. (e) The party controlling the defense of a Third Party Claim shall keep the Indemnitee or Indemnitor, as the case may be, fully informed at all stages of the defense of such Third Party Claim. The party not controlling the defense of any such Third Party Claim shall have the right, at its sole cost and expense, to the extent applicableparticipate in, assume but not control, the defense thereof of any such Third Party Claim. (f) The Indemnitor shall not settle without the consent of the Indemnitee any such Third Party Claim the defense of which it has assumed unless: (i) such settlement requires only payment of money damages; (ii) all obligations to be performed under such settlement shall be performed by the Indemnitor; (iii) with counsel mutually respect to such settlement there is no finding or admission of any violation of law, any violation of the rights of any person or any liability to any person and (iv) the Indemnitee receives, as a part of such settlement, an unconditional release, in form and substance reasonably satisfactory to Indemnitee, providing that such Third Party Claim and any other liability asserted, or which could have been asserted against the partiesIndemnitee in connection with such Third Party Claim, is being fully satisfied, discharged and released by reason of such settlement. If the Indemnitor receives an offer to settle such Third Party Claim or makes an offer (acceptable to the person or entity bringing the Third Party Claim) to settle such Third Party Claim which offer's terms can be performed by it and satisfy all of the conditions in (i) through (iv) above, it shall present such offer to the Indemnitee and if the Indemnitee refuses to accept such offer then the Indemnitor's liability to the Indemnitee hereunder with respect to such Third Party Claim shall not exceed the Damages to which the Indemnitee is entitled at the time of such offer and the cost to implement the terms of such settlement offer. (g) So long as the Indemnitor is in good faith defending such Third Party Claim, Indemnitee shall not compromise or settle such Third Party Claim; provided, however, that an the Indemnitee shall have the right to retain settle any Third Party Claim at any time if the Indemnitee waives its own counsel, right to recover Damages therefor from the Indemnitor. (h) Each party shall cooperate with the reasonable fees and expenses thereof to be paid other in the defense, negotiation and/or settlement of any such Third Party Claim. In connection with any defense of a Third Party Claim undertaken by the Indemnitor, if representation the Indemnitee shall provide Indemnitor, its counsel, accountants and other representatives with reasonable access to relevant properties, contracts, books and records and make available such personnel of such the Indemnitee by the counsel retained by as the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationreasonably request.

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (shall be given promptly after receipt by the "Indemnitor") Shareholder or the Company Indemnitee of actual knowledge of the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicableknown, and include copies of any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnified party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. If the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. (b) For actions where the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense thereof of and contest such action with counsel mutually satisfactory chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, the cost of such participation to be at its own expense. The indemnifying party shall pay the reasonable attorneys’ fees and expenses of the party seeking indemnification to the parties; providedextent that such fees and expenses relate to claims as to which indemnification is payable under Sections 6.2 or 6.3, howeveras such expenses are incurred. (c) Both the indemnifying party and the indemnified party shall cooperate fully with one another in connection with the defense, that an Indemnitee compromise, or settlement of any such claim or action, including, without limitation, by making available to the other all pertinent information and witnesses within its control. (d) No indemnified party shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and settle any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected brought against it without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13indemnifying party. The Indemnitee and its employees and agents indemnifying party shall cooperate fully with have the Indemnitor and its legal representatives in right to settle any action brought against an indemnified party as long as the investigation and defense indemnified party has been delivered a complete release as a condition of any action, claim or liability covered by this indemnificationthe settlement.

Procedure for Third Party Claims. Any person that intends The rights and obligations of the Indemnitee and Indemnitor with respect to claim indemnification under this Article 13 (an "Indemnitee") Indemnification Claims resulting from or arising out of a Third Party claim Claim shall be subject to the following conditions: (a) If a party receives notice of the assertion of any Third Party Claim for which it intends to make an Indemnification Claim, the Indemnitee shall promptly notify the indemnifying party provide written notice (the "Indemnitor"an “Indemnification Notice”) of such claim assertion to the Indemnitor; provided that failure of the Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of any of its obligations hereunder except to the extent the Indemnitor is prejudiced by such failure. The Indemnification Notice shall describe in reasonable detail the nature of the Third Party Claim and the basis for an Indemnification Claim and shall be accompanied by papers and documents which have been served upon the Indemnitee and such other documents and information as may be appropriate to an understanding of such Third Party Claim and the liability of the Indemnitor to indemnify the Indemnitee hereunder. (b) Upon receipt of an Indemnification Notice, the Indemnitor shall have the right and obligation to promptly assume the defense, negotiation and/or settlement of such Third Party Claim with counsel reasonably satisfactory to the Indemnitee, and shall give prompt written notice to the Indemnitee of its intent to do so. (c) Notwithstanding Section 11.4(b), if (i) an Indemnitee is obligated to permit an insurer to assume the defense of a Third Party Claim, (ii) an Indemnitee determines in good faith that there is a reasonable probability that a Third Party Claim may materially and adversely affect it or its Affiliates other than as a result of the payment of monetary damages, or (iii) the Indemnitor and Indemnitee are both named parties in a Third Party Claim and there are legal defenses available to the Indemnitee that are different from or in addition to those available to the Indemnitor, then, at the option of the Indemnitee, the Indemnitee may, by notice to the Indemnitor, reassume the defense, negotiation and/or settlement of any such Third Party Claim previously assumed by the Indemnitor and relieve Indemnitor of the obligation to assume its defense of the Third Party Claim, provided that the exercise of that option shall not relieve Indemnitor of its obligation to hold Indemnitee harmless and indemnify Indemnitee from Damages arising from such Third Party Claim. (d) If the Indemnitor does not assume the defense of such Third Party Claim in accordance with Section 11.4(b) or Indemnitee assumes its own defense as provided in Section 11.4(c), the Indemnitee shall have full authority to defend, negotiate, settle or otherwise dispose of any such Third Party Claim at the risk of and sole cost and expense of the Indemnitor; provided that the Indemnitee shall at all times act reasonably and in good faith as if it were ultimately liable with respect to such Third Party Claim. If the Indemnitee receives an offer to settle such Third Party Claim which offer satisfies the conditions in Section 11.4(f)(i)-(iv) it shall present such offer to the Indemnitor, and if the terms of such offer are acceptable to and can be performed by the Indemnitor, then the Indemnitor’s liability hereunder with respect to such Third Party Claim shall not exceed the Damages to which the Indemnitee intends to claim is entitled at the time of such indemnifi- cation, offer and the Indemnitor shallcost to implement the terms of such settlement offer. (e) The party controlling the defense of a Third Party Claim shall keep the Indemnitee or Indemnitor, as the case may be, fully informed at all stages of the defense of such Third Party Claim. The party not controlling the defense of any such Third Party Claim shall have the right, at its sole cost and expense, to the extent applicableparticipate in, assume but not control, the defense thereof of any such Third Party Claim. (f) The Indemnitor shall not settle without the consent of the Indemnitee any such Third Party Claim the defense of which it has assumed unless: (i) such settlement requires only payment of money damages; (ii) all obligations to be performed under such settlement shall be performed by the Indemnitor; (iii) with counsel mutually respect to such settlement there is no finding or admission of any violation of law, any violation of the rights of any person or any liability to any person and (iv) the Indemnitee receives, as a part of such settlement, an unconditional release, in form and substance reasonably satisfactory to Indemnitee, providing that such Third Party Claim and any other liability asserted, or which could have been asserted against the partiesIndemnitee in connection with such Third Party Claim, is being fully satisfied, discharged and released by reason of such settlement. If the Indemnitor receives an offer to settle such Third Party Claim or makes an offer (acceptable to the person or entity bringing the Third Party Claim) to settle such Third Party Claim which offer's terms can be performed by it and satisfy all of the conditions in (i) through (iv) above, it shall present such offer to the Indemnitee and if the Indemnitee refuses to accept such offer then the Indemnitor's liability to the Indemnitee hereunder with respect to such Third Party Claim shall not exceed the Damages to which the Indemnitee is entitled at the time of such offer and the cost to implement the terms of such settlement offer. (g) So long as the Indemnitor is in good faith defending such Third Party Claim, Indemnitee shall not compromise or settle such Third Party Claim; provided, however, that an the Indemnitee shall have the right to retain settle any Third Party Claim at any time if the Indemnitee waives its own counsel, right to recover Damages therefor from the Indemnitor. (h) Each party shall cooperate with the reasonable fees and expenses thereof to be paid other in the defense, negotiation and/or settlement of any such Third Party Claim. In connection with any defense of a Third Party Claim undertaken by the Indemnitor, if representation the Indemnitee shall provide Indemnitor, its counsel, accountants and other representatives with reasonable access to relevant properties, contracts, books and records and make available such personnel of such the Indemnitee by the counsel retained by as the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationreasonably request.

Procedure for Third Party Claims. Any person (a) Notice to the indemnifying Party shall be given promptly after receipt by a Shareholder Indemnitee or a Company Indemnitee of actual knowledge of the commencement of any action or the assertion of any claim that intends will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim indemnification under this Article 13 (an "Indemnitee") arising out to the extent known, and include copies of a Third Party any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnified party shall promptly notify be entitled, at its own expense, to assume or participate in the defense of such action or claim. If the indemnifying party (assumes the "Indemnitor") defense of such claim action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. (b) For actions where the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense of and contest such action with counsel chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in respect the defense of which such action, the Indemnitee intends cost of such participation to claim such indemnifi- cation, be at its own expense. The indemnifying party shall pay the reasonable attorneys’ fees and expenses of the Indemnitor shall, party seeking indemnification to the extent applicablethat such fees and expenses relate to claims as to which indemnification is payable under Sections 8.2 or 8.3, assume as such expenses are incurred. (c) Both the defense thereof indemnifying party and the indemnified party shall cooperate fully with counsel mutually satisfactory one another in connection with the defense, compromise, or settlement of any such claim or action, including, without limitation, by making available to the parties; provided, however, that an Indemnitee other all pertinent information and witnesses within its control. (d) No indemnified party shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and settle any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected brought against it without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13indemnifying party. The Indemnitee and its employees and agents indemnifying party shall cooperate fully with have the Indemnitor and its legal representatives in right to settle any action brought against an indemnified party as long as the investigation and defense indemnified party has been delivered a complete release as a condition of any action, claim or liability covered by this indemnificationthe settlement.

Procedure for Third Party Claims. Any person that intends (a) If any third party shall notify any Party (the “Indemnitee”) with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against any other Party (the “Indemnitor”) under this Article 13 (an "Indemnitee") arising out of a Third Party claim IX, then the Indemnitee shall promptly notify the indemnifying party (the "Indemnitor") of such claim Indemnitor thereof in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, assume the defense thereof with counsel mutually satisfactory to the partieswriting; provided, however, that an no delay on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except to the extent the Indemnitor is actually and materially prejudiced thereby. (b) The Indemnitor shall have the right right, at its option, to retain assume the defense of any Third Party Claim with its own counsel. If the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then: (i) notwithstanding anything to the contrary contained in this Agreement, the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from the Indemnitee; or (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that (x) there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor or (y) a conflict exists which makes representation of both the Indemnitor and the Indemnitee inappropriate under applicable standards of professional conduct; in the case of each of (A) or (B) above, the Indemnitor shall only be required to pay the fees of one counsel of the Indemnitee in each applicable country; (ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that are reasonably necessary for the defense of such Third Party Claim; (iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim; (iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim; (v) the Indemnitor shall not, without the written consent of the Indemnitee, which shall not be unreasonably withheld or delayed, settle or compromise any pending or threatened Claim in respect of which indemnification may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or any of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates, or (C) in any manner that involves any injunctive relief against the Indemnitee or any of its Affiliates or may materially and adversely affect the Indemnitee or any of its Affiliates; and (vi) if the Indemnitor does not elect to assume the defense of such Third Party Claim within 30 days after receipt of notice from the Indemnitee as described above, then the Indemnitee shall proceed diligently to defend such Third Party Claim with the reasonable fees and expenses thereof assistance of counsel reasonably satisfactory to be paid by the Indemnitor, if representation of such provided, however, that the Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply settle, adjust or compromise such Third Party Claim, or admit any liability with respect to amounts paid in settlement of any losssuch Third Party Claim, claim, liability or action if such settlement is effected without the prior written consent of the Indemnitor, which such consent shall not to be unreasonably withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationdelayed.

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (shall be given promptly after receipt by the "Indemnitor") Shareholders or Sionix Indemnitee of actual knowledge of the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicableknown, and include copies of any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnified party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. If the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. (b) For actions where the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense thereof of and contest such action with counsel mutually satisfactory chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, the cost of such participation to be at its own expense. The indemnifying party shall pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the parties; providedextent that such fees and expenses relate to claims as to which indemnification is payable, howeveras such expenses are incurred. (c) Both the indemnifying party and the indemnified party shall cooperate fully with one another in connection with the defense, that an Indemnitee compromise, or settlement of any such claim or action, including, without limitation, by making available to the other all pertinent information and witnesses within its control. (d) No indemnified party shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and settle any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected brought against it without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13indemnifying party. The Indemnitee and its employees and agents indemnifying party shall cooperate fully with have the Indemnitor and its legal representatives in right to settle any action brought against an indemnified party as long as the investigation and defense indemnified party has been delivered a complete release as a condition of any action, claim or liability covered by this indemnificationthe settlement.

Procedure for Third Party Claims. Any person that intends to claim (i) All claims for indemnification made under this Article 13 (an "Indemnitee") Agreement resulting from, related to or arising out of a Third claim by a Third-Party claim Claimant against an Indemnified Party (“Third-Party Claim”) shall be made in accordance with the following procedures. In the event an Indemnified Party becomes aware of a Third-Party Claim which such Indemnified Party reasonably believes may result in a Loss that is entitled to indemnification pursuant to this Article VII, such Indemnified Party shall promptly notify the indemnifying party (Stockholder Agent with a copy to the "Indemnitor") Escrow Agent, if indemnification is sought under Section 7.2, or Parent, if indemnification is sought under Section 7.3, of such claim by delivery of a Claim Certificate to such party. Delay or failure in respect so notifying the Stockholder Agent or Parent shall relieve the applicable Indemnifying Parties of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, their obligations under this Article VII only to the extent extent, if at all, that such Indemnifying Parties are prejudiced by reason of such delay or failure. If there is a Third-Party Claim that, if adversely determined would give rise to a right of recovery for Losses hereunder, then any amounts incurred or accrued by the applicable Indemnified Party or Parties in defense of such Third-Party Claim, regardless of the outcome of such claim, shall be deemed Losses hereunder. (ii) Within thirty days after delivery of such Claim Certificate, Parent may, upon written notice thereof to the Indemnified Party or Parties, if indemnification is sought under Section 7.3, or to the Stockholder Agent, if indemnification is sought under Section 7.2, assume control of the defense of such Third-Party Claim with legal counsel selected by Parent and reasonably acceptable to the Indemnified Party or Parties. (iii) If Parent does not assume control of the defense of such Third-Party Claim as provided in clause (ii) above, the Indemnified Party or the Stockholder Agent, as applicable, assume the shall control such defense. The party not controlling such defense thereof with counsel mutually satisfactory to the partiesmay participate therein at its own expense; provided, however, that an Indemnitee shall have if pursuant to clause (ii) above, Parent assumes control of such defense and the right to retain its own Indemnified Party reasonably concludes, based on advice of counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Third-Party Claim, the reasonable fees and expenses thereof of one counsel and one local counsel in each applicable jurisdiction for all Indemnified Parties solely in connection therewith shall be considered “Losses” for purposes of this Agreement. If Parent or any of its Affiliates is an Indemnified Party in connection with a Third-Party Claim, and Parent controls the defense thereof, all reasonable costs related to such defense shall be paid considered “Losses” for purposes of this Agreement. The party controlling the defense shall (i) keep the other party reasonably advised of the status of such Third-Party Claim and the defense thereof, (ii) shall consider all reasonable recommendations made by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 with respect thereto, and (iii) shall not apply agree to amounts paid in any settlement or compromise of, or consent to the entry of any lossjudgment with respect to, claim, liability or action if such settlement is effected Third-Party Claim without the prior written consent of the IndemnitorIndemnified Party or Indemnifying Party, as applicable (which consent shall not be withheld unreasonably. Any Indemnitee's failure unreasonably withheld, conditioned or delayed), unless such settlement or compromise or consent (A) includes a complete release of all Indemnified Parties from all liability with respect to deliver notice to all claims underlying the Indemnitor within Third Party Claim, and (B) does not impose any liability or material obligation on any potential Indemnified Party or a reasonable time after claim of any material amount from the commencement Escrow Fund. (iv) If the Stockholder Agent or Parent assumes control of the defense of any such actionThird-Party Claim, if materially prejudicial to the Indemnitor's ability to defend such actionIndemnified Party or Indemnifying Party, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13as applicable, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with all reasonable requests of the Indemnitor and its legal representatives Stockholder Agent or Parent, as applicable, in the investigation and defense of such Third-Party Claim, which cooperation shall include the retention and (upon request) the provision of reasonably requested records or other information that is reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis during normal business hours to provide additional information and explanation of any action, claim or liability covered by this indemnificationsuch reasonably relevant material.

Procedure for Third Party Claims. Any person that intends Acquiror Indemnified Person and any Stockholder Indemnified Person shall each be referred to claim collectively herein as an "Indemnified Person." If any claim, demand, liability or obligation is asserted by any third party against any Indemnified Person, the Person from whom indemnification under is sought (each, an "Indemnifying Person") shall have the right, unless otherwise precluded by applicable law, to conduct and control the defense, compromise or settlement of any action or threatened action brought against the Indemnified Person in respect of matters addressed by the indemnity set forth in this Article 13 VII (an "IndemniteeAction") arising out of a Third Party claim ). The Indemnified Person shall promptly notify have the indemnifying party (right to employ counsel separate from counsel employed by the "Indemnitor") Indemnifying Person in connection with any such Action or threatened Action and to participate in the defense thereof, but the fees and expenses of such claim counsel employed by the Indemnified Person shall be at the sole expense of the Indemnified Person, UNLESS (a) the Indemnifying Person shall have elected not, or, after reasonable written notice of any such Action or threatened Action, shall have failed, to assume or participate in the defense thereof, (b) the employment thereof has been specifically authorized by the Indemnifying Person in writing, or (c) the parties to any such Action or threatened Action (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and the Indemnifying Person shall have been advised in writing by counsel for the Indemnified Person that there may be one or more defenses available to the Indemnified Person that are not available to the Indemnifying Person or legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Person and the Indemnified Person (in any such case, the Indemnifying Person shall not have the right to assume the defense of such Action on behalf of the Indemnified Person), in either of which events referred to in clauses (a), (b) and (c) the fees and expenses of one such separate counsel employed by the Indemnified Person shall be at the expense of the Indemnifying Person. The Indemnifying Person shall not, without the written consent of the Indemnified Person, settle or compromise any such Action or threatened Action or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Person a release from all liability in respect of which such Action or threatened Action. Unless the Indemnitee intends to claim Indemnifying Person shall have elected not, or shall have after reasonable written notice of any such indemnifi- cation, and the Indemnitor shallAction or threatened Action failed, to the extent applicable, assume or participate in the defense thereof with counsel mutually satisfactory thereof, the Indemnified Person may not settle or compromise any Action or threatened Action without the written consent of the Indemnifying Person. If, after reasonable written notice of any such Action or threatened Action, the Indemnifying Person neglects to defend the partiesIndemnified Person, a recovery against the latter for damages suffered by it in good faith, is conclusive in its favor against the Indemnifying Person; provided, however, that an Indemnitee no such conclusive presumption shall have be made if the right to retain its own counsel, with the Indemnifying Person has not received reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent written notice of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to Action against the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationIndemnified Person.

Procedure for Third Party Claims. (a) Any person that intends Buyer Indemnified Person and any Seller Indemnified Person shall each be referred to claim collectively herein as an “Indemnified Person.” Any Indemnified Person seeking indemnification under this Article 13 with respect to any losses, claims, damages, liabilities or expenses shall give notice to the Person from whom indemnification is sought (each, an "Indemnitee"“Indemnifying Person”) arising out on or before the date specified in Section 6.05. (b) If any claim, demand, liability or obligation is asserted by any third party against any Indemnified Person (other than an Infringement Action, which shall be subject to the procedures specified in Section 6.04(c)), the Indemnifying Person shall have the right, unless otherwise precluded by applicable law, to conduct and control the defense, compromise or settlement of a Third Party claim shall promptly notify any action or threatened action brought against the indemnifying party (the "Indemnitor") of such claim Indemnified Person in respect of which matters addressed by the Indemnitee intends indemnity set forth in this Article VI (an “Action”). The Indemnified Person shall have the right to claim employ counsel separate from counsel employed by the Indemnifying Person in connection with any such indemnifi- cationAction or threatened Action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the sole expense of the Indemnified Person, unless (i) the Indemnifying Person shall have elected not, or, after reasonable written notice of any such Action or threatened Action, shall have failed, to assume or participate in the defense thereof, (ii) the employment thereof has been specifically authorized by the Indemnifying Person in writing, or (iii) the parties to any such Action or threatened Action (including any impleaded parties) include both the Indemnifying Person and the Indemnitor shall, Indemnified Person and the Indemnifying Person shall have been advised in writing by counsel for the Indemnified Person that there may be one or more defenses available to the extent applicableIndemnified Person that are not available to the Indemnifying Person or legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Person and the Indemnified Person (in any such case, the Indemnifying Person shall not have the right to assume the defense thereof with of such Action on behalf of the Indemnified Person), in either of which events referred to in clauses (i), (ii) or (iii) the fees and expenses of one such separate counsel mutually satisfactory employed by the Indemnified Person shall be at the expense of the Indemnifying Person. The Indemnifying Person shall not, without the written consent of the Indemnified Person, settle or compromise any such Action or threatened Action or consent to the partiesentry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Person a release from all liability in respect of such Action or threatened Action. Unless the Indemnifying Person shall have elected not, or shall have after reasonable written notice of any such Action or threatened Action failed, to assume or participate in the defense thereof, the Indemnified Person may not settle or compromise any Action or threatened Action without the written consent of the Indemnifying Person. If, after reasonable written notice of any such Action or threatened Action to the Indemnifying Person, the Indemnifying Person neglects to defend the Indemnified Person, a recovery against the latter for damages suffered by it in good faith is conclusive in its favor against the Indemnifying Person; provided, however, that an Indemnitee no such conclusive presumption shall have be made if the right to retain its own counsel, with the Indemnifying Person has not received reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent written notice of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to Action against the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationIndemnified Person.

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (the "Indemnitor") shall be given promptly after receipt by any Seller Indemnitee or Buyer Indemnitee of such claim in respect actual Knowledge of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim to the extent known, and include copies of any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnifying party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. In the event that the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. (b) With respect to actions as to which the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense of and contest such action with counsel chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, if materially prejudicial the cost of such participation to be at its own expense. The indemnifying party shall be obligated to pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the Indemnitor's ability extent that such fees and expenses related to defend claims as to which indemnification is payable under Sections 10.1 or 10.2, as such action, shall relieve expenses are incurred. (c) Both the Indemnitor of any liability to indemnifying party and the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents indemnified party shall cooperate fully with one another in connection with the Indemnitor and its legal representatives in the investigation and defense defense, compromise, or settlement of any such claim or action, claim or liability covered including, without limitation, by this indemnificationmaking available to the other all pertinent information and witnesses within its control.

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party shall be given within ten (10) days (or such later time period if the "Indemnitor"party seeking indemnification will be materially prejudiced by such ten day notice requirement, but in such cases, as promptly as possible) after receipt by any Seller Indemnitee or Buyer Indemnitee of actual knowledge of the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim to the extent known, and include copies of any written correspondence from the party asserting such claim or initiating such action. The indemnifying party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. In the event that the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. No settlement of a matter by the party seeking indemnification shall be binding on the indemnifying party for purposes of establishing such party's indemnification obligations hereunder . (b) With respect of to actions as to which the Indemnitee intends indemnifying party does not exercise its right to claim assume the defense, the party seeking indemnification shall assume and control the defense of and contest such indemnifi- cationaction with counsel chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, the cost of such participation to be at its own expense. The indemnifying party shall be obligated to pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the extent that such fees and expenses relate to claims as to which indemnification is payable under Sections 7.2 or 7.3. (c) Both the indemnifying party and the Indemnitor indemnified party shall cooperate fully with one another in connection with the defense, compromise, or settlement of any such claim or action, including, without limitation, by making available to the other all pertinent information and witnesses within its control. Without limitation of the foregoing, any party granted the right to direct the defense of a threatened or actual suit, investigation or proceeding hereunder shall: (i) keep the other fully informed of material developments in the action, suit, investigation or proceeding at all stages thereof; (ii) promptly submit to the other copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received in connection with the action, suit, investigation or proceeding; (iii) permit the other and its counsel, to the extent applicablepracticable, assume to confer on the conduct of the defense thereof with counsel mutually satisfactory of the action, suit, investigation or proceeding;and (iv) to the parties; providedextent practicable, however, that permit the other and its counsel an Indemnitee shall have the right opportunity to retain its own counsel, with the reasonable fees and expenses thereof review all legal papers to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due submitted prior to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedingstheir submission. The parties' indemnity obligations under this Article 13 parties shall not apply make available to amounts paid each other and each other's counsel and accountants all of its or their books and records relating to the action, suit, investigation or proceeding, and each party shall render to the other such assistance as may be reasonably required in settlement order to insure the proper and adequate defense of the action, suit, investigation or proceeding. The parties shall use their respective good faith efforts to avoid the waiver of any loss, claim, liability or action if such settlement is effected without the consent privilege of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationeither party.

Procedure for Third Party Claims. Any person that intends The rights and obligations of the Indemnitee and Indemnitor with respect to claim indemnification under this Article 13 (an "Indemnitee") Indemnification Claims arising out of a Third Party claim Claim shall be subject to the following conditions: (a) If a party receives notice of the assertion of any Third Party Claim in respect of which it intends to make an Indemnification Claim, the Indemnitee shall promptly notify the indemnifying party provide written notice (the an "IndemnitorIndemnification Notice") of such claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial assertion to the Indemnitor's ability ; provided that failure of the Indemnitee to defend such action, give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of any liability of its obligations hereunder except to the extent the Indemnitor is prejudiced by such failure. The Indemnification Notice shall describe in reasonable detail the nature of the Third Party Claim, the basis for an Indemnification Claim and shall be accompanied by copies of papers and documents which have been served upon the Indemnitee and such other documents and information as may be appropriate to an understanding of such Third Party Claim and the liability of the Indemnitor to indemnify the Indemnitee hereunder. Except as required by law, the Indemnitee shall not take any action which may prejudice the defense of such Third Party Claim unless and until Indemnitor has been given the opportunity to assume the defense thereof under this Article 13Section 10.05 and refused to do so. If Indemnitee takes any such action which does prejudice the defense of such Third Party Claim then Indemnitee shall be liable to Indemnitor to the extent of such prejudice. (b) Upon receipt of an Indemnification Notice, the Indemnitor shall have the right but not any liability the obligation to promptly assume and take exclusive control of the defense, negotiation and/or settlement of such Third Party Claim; provided that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnification.the

Procedure for Third Party Claims. Any person that intends (a) In order for Purchaser to claim be entitled to any indemnification provided for under this Article 13 (an "Indemnitee") VI in respect of, arising out of or involving a claim made by any person not a party hereto (a "Third Party Claim"), Purchaser must notify Seller in writing of the Third Party Claim; PROVIDED, HOWEVER, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent Seller actually shall have been prejudiced as a result of such failure (except that Seller shall not be liable for any expenses incurred during the period in which Purchaser failed to give such notice). Thereafter, Purchaser shall deliver to Seller, within five business days' time after Purchaser's receipt thereof, copies of all notices and documents (including court papers) received by Purchaser relating to the Third Party Claim. (b) If a Third Party Claim is made against Purchaser or the Company, Seller will be entitled to participate in the defense thereof and, if it chooses, to assume the defense thereof at its own cost and expense with counsel selected by Seller and reasonably satisfactory to Purchaser. Should Seller elect to assume the defense of a Third Party claim shall promptly notify the indemnifying party (the "Indemnitor") of such claim Claim, Seller will not be liable to Purchaser for any legal expenses subsequently incurred by Purchaser in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, assume connection with the defense thereof with counsel mutually satisfactory unless Purchaser shall have reasonably determined that there may be one or more defenses which are available to the parties; providedit which are different from or in addition to those available to Seller. If Seller assumes such defense, however, that an Indemnitee Purchaser shall have the right to retain participate in the defense thereof and to employ counsel, at its own counselexpense, separate from the counsel employed by Seller, it being understood that Seller shall control such defense. Seller shall be liable for the fees and expenses of counsel employed by Purchaser for any period during which Seller has not assumed the defense thereof (other than during any period in which Purchaser shall have failed to give notice of the Third Party Claim as provided above). If Seller chooses to defend or prosecute a Third Party Claim, all of the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon Seller's request) the provision to Seller of records and information which are reasonably relevant to such Third Party Claim, and making employees, consultants and independent contractors available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to provide testimony. If Seller chooses to defend or prosecute any Third Party Claim, Seller shall not agree to any settlement, compromise or discharge of such Third Party Claim without the prior written consent of Purchaser, unless such settlement, compromise or discharge provides solely for monetary relief and the full and complete release of Purchaser is the result thereof. Whether or not Seller shall have assumed the defense of a Third Party Claim, Purchaser shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without Seller's prior written consent. If Seller does not elect to control or defend a Third Party Claim, or after so electing does not actively contest and defend the same in good faith, Purchaser shall be entitled to contest, defend and/or settle such Third Party Claim on such terms and with such counsel as Purchaser deems appropriate, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, Seller which consent shall not be unreasonably withheld unreasonably. Any Indemnitee's failure to deliver notice to or delayed, and at the Indemnitor within a reasonable time after the commencement cost and expense of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationSeller.

Procedure for Third Party Claims. Any person that intends to claim All claims for indemnification made under this Article 13 (an "Indemnitee") Agreement resulting from, related to or arising out of a Third third-party claim against an Indemnified Party shall be made in accordance with the following procedures. In the event an Indemnified Party becomes aware of a third party claim which such Indemnified Party reasonably believes may result in a Loss, such Indemnified Party shall promptly notify the indemnifying party (the "Indemnitor") Caliper of such claim by delivery of an Officer’s Certificate to Caliper. Delay or failure in respect so notifying Caliper shall relieve Caliper of which its obligations under this Article 6 only to the Indemnitee extent, if at all, that Caliper is prejudiced by reason of such delay or failure. If there is a third party claim that, if adversely determined would give rise to a right of recovery for Losses hereunder, then any amounts incurred or accrued in defense of such third party claim, regardless of the outcome of such claim, shall be deemed Losses hereunder. Within forty five (45) days after delivery of such Officer’s Certificate, Caliper may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim other than Tax Claims if (1) Caliper provides written notice to such Indemnified Party that Caliper intends to undertake such defense and that Caliper will indemnify the Indemnified Parties against all Losses Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. resulting from or relating to such third-party claim; (2) the third-party claim such indemnifi- cationdoes not seek an injunction or other equitable relief; (3) settlement of or an adverse judgment with respect to the third-party claim is not, in the good faith judgment of Taconic, likely to establish a precedent adverse relating to the Intellectual Property or Intellectual Property Rights of Taconic and its Subsidiaries, and the Indemnitor shall, to the extent applicable, assume (4) the defense thereof with of the third-party claim is conducted actively and diligently by legal counsel mutually satisfactory reasonably acceptable to such Indemnified Party. If Caliper does not assume control of such defense, the partiesIndemnified Party shall control such defense. The party not controlling such defense may participate therein at its own expense; provided, however, that an Indemnitee shall have if Caliper assumes control of such defense and the right to retain its own Indemnified Party reasonably concludes, based on advice of counsel, that Caliper and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the reasonable fees and expenses thereof of counsel to the Indemnified Party solely in connection therewith shall be paid by considered “Losses” for purposes of this Agreement; provided, however, that in no event shall Caliper be responsible for the Indemnitor, if representation fees and expenses of more than one counsel per jurisdiction for all Indemnified Parties. The party controlling such Indemnitee by defense shall keep the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent reasonably advised of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement status of any such action, if materially prejudicial suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other party with respect thereto. The Indemnified Party shall not agree to the Indemnitor's ability to defend any settlement of such action, suit, proceeding or claim without the prior written consent of Caliper, not to be unreasonably withheld, delayed or conditioned. Caliper shall relieve the Indemnitor not agree to any settlement of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any such action, suit, proceeding or claim that does not include a complete release of all potential Indemnified Parties from all Liability with respect thereto or liability covered by this indemnificationthat imposes any Liability on any potential Indemnified Party without the prior written consent of such Indemnified Party.

Procedure for Third Party Claims. Any person that intends (a) If any third party shall notify any Party (the “Indemnitee”) with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against any other Party (the “Indemnitor”) under this Article 13 (an "Indemnitee") arising out of a Third Party claim VII, then the Indemnitee shall promptly notify the indemnifying party (Indemnitor thereof in writing; provided, that no delay on the "Indemnitor") part of such claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and in notifying the Indemnitor shall, shall relieve the Indemnitor from any obligation hereunder except to the extent applicable, assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an Indemnitee Indemnitor is materially prejudiced thereby. (b) The Indemnitor shall have the right to retain its own counselparticipate in, with or by giving written notice to the reasonable fees Indemnitee, to assume the defense of any Third Party Claim at the Indemnitor’s expense and expenses thereof to be paid by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, if and the Indemnitee shall cooperate in good faith in such defense; provided, that the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writing that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify the indemnitee against any Losses that may result from the Third Party Claim (subject to the limitations on indemnification contained herein, including, without limitation, the Cap), (ii) the Indemnitee shall not have given the Indemnitor written notice that it has received the advice of counsel that a conflict of interest makes separate representation by the Indemnitee’s own counsel necessary, (iii) the Third Party Claim involves solely monetary damages and/or non-material equitable relief, (iv) the Indemnitor demonstrates to the Indemnitee’s reasonable satisfaction that the Losses that may result from the Third Party Claim along with any and all other pending claims against the Indemnitee are not reasonably expected to exceed the Cap and (v) the Third Party Claim does not relate to Taxes sought to be imposed on Buyer by a Governmental Authority. If the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then: (i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the counsel retained Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within thirty (30) calendar days after receiving notice of such failure from the Indemnitee or (B) the Indemnitee reasonably shall have concluded, based on the advice of legal counsel, that, with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have conflicting or adverse legal positions or interests; (ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim; (iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor would in the defense of such Third Party Claim; (iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim; (v) the Indemnitor shall not, without the written consent of the Indemnitee, which shall not be inappropriate due to unreasonably withheld, conditioned or delayed, settle or compromise any pending or threatened Third Party Claim in respect of which indemnification may be sought hereunder (whether or not the Indemnitee is an actual or potential differing interests between party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or any of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any other party represented statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) in any manner that involves any injunctive relief against the Indemnitee or any of its Affiliates or may materially and adversely affect the Indemnitee or any of its Affiliates; and (vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 7.5, then the Indemnitee shall proceed diligently to defend such Third Party Claim with the assistance of counsel in such proceedings. The parties' indemnity obligations under this Article 13 reasonably satisfactory to the Indemnitor; provided, that the Indemnitee shall not apply settle, adjust or compromise such Third Party Claim, or admit any liability with respect to amounts paid in settlement of any losssuch Third Party Claim, claim, liability or action if such settlement is effected without the prior written consent of the Indemnitor, which such consent shall not to be unreasonably withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationdelayed.

Procedure for Third Party Claims. Any person that intends The rights and -------------------------------- obligations of the Indemnitee and Indemnitor with respect to claim indemnification under this Article 13 (an "Indemnitee") Indemnification Claims arising out of a Third Party claim Claim shall be subject to the following conditions: (a) If a party receives notice of the assertion of any Third Party Claim in respect of which it intends to make an Indemnification Claim, the Indemnitee shall promptly notify the indemnifying party provide written notice (the an "IndemnitorIndemnification Notice") of such claim assertion to the Indemnitor; provided that failure of the Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of any of its obligations hereunder except to the extent the Indemnitor is prejudiced by such failure. The Indemnification Notice shall describe in reasonable detail the nature of the Third Party Claim, the basis for an Indemnification Claim and shall be accompanied by copies of papers and documents which have been served upon the Indemnitee and such other documents and information as may be appropriate to an understanding of such Third Party Claim and the liability of the Indemnitor to indemnify the Indemnitee hereunder. Except as required by law, the Indemnitee shall not answer or take any other action in respect of such Third Party Claim which may prejudice the Indemnitee intends defense thereof unless and until Indemnitor has been given the opportunity to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, assume the defense thereof with counsel mutually satisfactory under this Section 9.05 and refused to do so. If Indemnitee takes any such action which does prejudice the defense of any such Third Party Claim then Indemnitee shall be liable to Indemnitor to the partiesextent of such prejudice. (b) Upon receipt of an Indemnification Notice, the Indemnitor shall have the right but not the obligation to promptly assume and take exclusive control of the defense, negotiation and/or settlement of such Third Party Claim. The assumption of the defense by Indemnitor of a Third Party Claim shall not prejudice the right of the Indemnitor to recover Damages from the Indemnitee with respect thereto. If a party is defending, negotiating or settling a Third Party Claim for which the other party may be liable, then such party shall at all times do so in good faith as if it were ultimately liable for all Damages resulting therefrom and shall not settle such Third Party Claim except on terms which are commercially reasonable measured in the context of the matter settled and not in respect of any other consideration of the settling party. (c) If the Indemnitor does not, within twenty days after receipt of an Indemnification Notice, take over the defense of such Third Party Claim then the parties agree that the Indemnitee may join the Indemnitor in any action, claim or proceeding brought by the third party asserting such Third Party Claim as to which any right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any right of indemnity granted to such Indemnified Party pursuant to this Agreement. (d) If the Indemnitor has assumed the defense of a Third Party Claim then the Indemnitee shall not compromise or settle such Third Party Claim; provided, however, that an the Indemnitee shall have the right to retain settle at its own counselsole cost and expense any Third Party Claim at any time if the Indemnitee waives its right to recover any Damages therefor from the Indemnitor. (e) The party controlling the defense of a Third Party Claim shall keep the Indemnitee or Indemnitor, as the case may be, reasonably informed at all stages of the defense of such Third Party Claim. The party not controlling the defense of any such Third Party Claim shall have the right, at its sole cost and expense, to participate in, but not control, the defense of any such Third Party Claim. Each party shall reasonably cooperate with the reasonable fees and expenses thereof to be paid other in the defense, negotiation and/or settlement of any such Third Party Claim. In connection with any defense of a Third Party Claim undertaken by the Indemnitor, if representation the Indemnitee shall provide Indemnitor, its counsel, accountants and other representatives with reasonable access to relevant properties, contracts, books and records and make available such personnel of the Indemnitee as the Indemnitor may reasonably request. (f) If either party receives an offer to settle such Third Party Claim, it shall promptly present such offer to the other party. If the Indemnitor is willing to accept and perform all of the terms of such settlement offer and the Indemnitee by the counsel retained by the Indemnitor would be inappropriate due refuses to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if accept such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to offer; then (1) the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any ---- liability to the Indemnitee under this Article 13hereunder with respect to such Third party Claim shall not exceed the amount of money and the performance obligations proposed to be paid pursuant to such settlement offer, but not any liability that and, (2) if the Indemnitor has assumed the defense of such Third Party Claim, then the Indemnitor may, if it may have so elects, tender the defense thereof to the Indemnitee otherwise than under this Article 13. The by paying to Indemnitee the amount of money proposed to be paid in such settlement offer and its employees and agents shall cooperate fully with irrevocably accepting any non-monetary performance obligations, in which case the Indemnitor shall have no further liability to the Indemnitee hereunder with respect to such Third Party Claim and its legal representatives in the investigation and Indemnitee shall have sole responsibility for the future defense of such Third Party Claim and for any actionand all liabilities, claim or liability covered by this indemnificationdamages, claims, costs, and expenses (including attorneys' fees) resulting therefrom.

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (shall be given promptly after receipt by the "Indemnitor") Company Indemnitee of actual knowledge of the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicableknown, and include copies of any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnified party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. If the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. (b) For actions where the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense thereof of and contest such action with counsel mutually satisfactory chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, the cost of such participation to be at its own expense. The indemnifying party shall pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the parties; providedextent that such fees and expenses relate to claims as to which indemnification is payable under Sections 6.2, howeveras such expenses are incurred. (c) Both the indemnifying party and the indemnified party shall cooperate fully with one another in connection with the defense, that an Indemnitee compromise, or settlement of any such claim or action, including, without limitation, by making available to the other all pertinent information and witnesses within its control. (d) No indemnified party shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and settle any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected brought against it without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13indemnifying party. The Indemnitee and its employees and agents indemnifying party shall cooperate fully with have the Indemnitor and its legal representatives in right to settle any action brought against an indemnified party as long as the investigation and defense indemnified party has been delivered a complete release as a condition of any action, claim or liability covered by this indemnificationthe settlement.

Procedure for Third Party Claims. Any (i) If a person that intends entitled to assert a claim for indemnification under this Article 13 Agreement shall receive notice of the assertion by any person not a party to this Agreement of any claim or of the commencement of any action or proceeding (an a "Third Party Claim") with respect to which PGI, a Seller or the Purchaser is obligated to provide indemnification, the indemnified party (the "Indemnitee") arising out of a Third Party claim shall promptly notify give the indemnifying party (the "Indemnitor") prompt written notice after becoming aware of such claim Third Party Claim. The failure of the Indemnitee to give notice as provided in this Section shall not relieve the Indemnitor of its obligations for indemnification under this Agreement, except to the extent that the failure has materially and adversely affected the rights of the Indemnitor. The notice from the Indemnitee shall describe the Third Party Claim in reasonable detail. (ii) An Indemnitor may elect to compromise or defend, at the Indemnitor's own expense and by such Indemnitor's own counsel, any Third Party Claim provided that the Indemnitor acknowledges its obligation to indemnify in respect of which the Third Party Claim. If an Indemnitor does so acknowledge its obligation, it shall have the right to compromise or defend the Third party Claim, and shall, within thirty (30) days (or sooner, if the nature of the Third Party Claim so requires), notify the Indemnitee intends of its intent to claim such indemnifi- cationdo so. The Indemnitee shall cooperate in the compromise of, or defense against, the Third Party Claim and the Indemnitor shall, shall pay the Indemnitee's actual out-of-pocket expenses reasonably incurred in connection with its cooperation. After notice from an Indemnitor to the extent applicable, an Indemnitee of its election to assume the defense thereof with counsel mutually satisfactory of a Third Party Claim, the Indemnitor shall not be liable to the parties; providedIndemnitee under this Agreement for any legal expenses subsequently incurred by the Indemnitee in connection with the defense of the Third Party Claim, however, PROVIDED that an Indemnitee shall have the right to retain its own counselemploy one counsel in each applicable jurisdiction (if more than one jurisdiction is involved) to represent Indemnitee if, with in the Indemnitee's reasonable judgement, a conflict of interest between the Indemnitee and the Indemnitor exists in respect of such Third Party Claim, and in that event the fees and expenses thereof to of such separate counsel shall be paid by the Indemnitor, if representation of such Indemnitee by . Except with the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the written consent of the Indemnitor, each related Indemnitee (which consent shall not be withheld unreasonably. Any Indemnitee's failure unreasonably withheld), no Indemnitor shall consent to deliver notice to the Indemnitor within a reasonable time after the commencement entry of any such action, if materially prejudicial judgment or enter into any settlement which provides for anything other than money damages or other money payments for which the Indemnitee is entitled to indemnification under this Agreement or which does not contain as an unconditional term thereof the Indemnitor's ability to defend such action, shall relieve giving by the Indemnitor of any liability claimant or plaintiff to the Indemnitee under of a release from all liability in respect of the Third Party Claim. If an Indemnitor does not so acknowledge its obligation to indemnify, elects not to defend against a Third Party Claim, or fails to notify an Indemnitee of its election as provided in this Article 13Section, but not any liability that it may have to the Indemnitee otherwise may pay, compromise or defend such Third Party Claim on behalf of and for the account and risk of the Indemnitor; provided that the Indemnitor may participate in the defense of such Third Party Claim at its own expense. (iii) If there is a reasonable likelihood that a Third Party Claim may materially and adversely affect an Indemnitee, other than under this Article 13. The as a result of money damages or other money payments for which the Indemnitee and its employees and agents shall cooperate fully is entitled to indemnification hereunder, the Indemnitee will have the right, after consultation with the Indemnitor and its legal representatives in at the investigation cost and defense expense of any actionthe Indemnitor, claim or liability covered by this indemnificationto defend the Third Party Claim, with counsel reasonably acceptable to Indemnitor.

Procedure for Third Party Claims. Any person that intends to (a) Promptly after obtaining knowledge of any claim or demand which has given rise to, or could reasonably give rise to, a claim for indemnification under this Article 13 hereunder, the party seeking indemnification shall give written notice of such claim (an "IndemniteeNotice of Claim") arising out to the other party in accordance with the terms of the Escrow Agreement. 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 liability, loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification, and shall be accompanied by all documentation in the case of a Third Party third-party claim shall promptly notify against the indemnified party. (b) Upon receiving the Notice of Claim, the indemnifying party (the "Indemnitor") shall resist, settle or otherwise dispose of such claim in respect such manner as it shall deem appropriate, including the employment of which the Indemnitee intends to claim such indemnifi- cationcounsel, and shall be responsible for the Indemnitor shallpayment of all settlements, to judgments, costs and expenses, including the extent applicable, assume the defense thereof with reasonable fees and expenses of any counsel mutually satisfactory to the parties; provided, however, that an Indemnitee retained. The indemnified party shall have the right to retain its own counselemploy separate counsel in any such action and to participate in the defense thereof, with but the reasonable fees and expenses thereof to of such counsel shall be paid at the indemnified party's expense unless: (i) the employment has been specifically authorized by the Indemnitorindemnifying party in writing; (ii) the indemnifying party has improperly failed to assume the defense and employ counsel; or (iii) the named parties to any action (including any impleaded parties) include the Buyer, if InterCept and/or the Company and the Shareholders, and the indemnified party has been advised by such counsel that representation of such Indemnitee Buyer, InterCept and/or the Company and Shareholders by the same counsel retained by the Indemnitor 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 Indemnitee and action on behalf of the indemnified party). (c) The party seeking indemnification shall comply with the foregoing procedure for each claim arising hereunder, whether or not the amount of such claims exceeds any other minimum amount. All Notices of Claim for general contingencies must be delivered within the time frame permitted by the Escrow Agreement for the party represented by making such counsel claim(s) to collect from the Escrow Fund, as defined in such proceedingsthe Escrow Agreement. The parties' indemnity obligations indemnified party shall cooperate with the indemnifying party in defending any such claim and provide any books, records, information or testimony requested, which is in the hands of or under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent control of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to indemnified party or obtainable by the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationindemnified party without unreasonable expense.

Procedure for Third Party Claims. Any person that intends to claim indemnification under this Article 13 (a) Promptly after receipt by an "Indemnitee") arising out Indemnitee of notice of the commencement of any Action by a Third Party claim shall promptly notify the indemnifying third party (the "Indemnitor"a “Third-Party Claim”) of such claim in with respect of to any matter for which indemnification is or may be owing pursuant to Section 8.2 or 8.3 hereof, the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, will give notice thereof to the extent applicable, assume the defense thereof with counsel mutually satisfactory to the partiesIndemnitor; provided, however, that an the failure of the Indemnitee shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by notify the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall will not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability of its obligations hereunder, except to the extent that the Indemnitor demonstrates that the defense of such Third-Party Claim has been actually prejudiced by the Indemnitee’s failure to give such notice. (b) If any Action referred to in Section 8.5(a) is brought against an Indemnitee and it gives notice to the Indemnitor of the commencement of such Action, the Indemnitor will be entitled to participate in such Action, and (unless the Indemnitor is also a party to such Action and the Indemnitee determines in good faith that joint representation would be inappropriate upon the advice of outside counsel that a conflict of interest exists between the Indemnitee and the Indemnitor with respect to such Action) may assume the defense of such Action with counsel reasonably satisfactory to the Indemnitee and, after notice from the Indemnitor to the Indemnitee of its election to assume the defense of such Action, the Indemnitor will not, as long as it diligently conducts such defense, be liable to the Indemnitee under this Article 13VIII for any fees of other counsel with respect to the defense of such Action, but not in each case subsequently incurred by the Indemnitee in connection with the defense of such Action. (c) If the Indemnitor assumes the defense of an Action, (x) no compromise or settlement of such claims or Action may be effected by the Indemnitor without the Indemnitee’s consent unless (A) there is no finding or admission of any liability violation of Law or any violation of the rights of any Person and no effect on, or provides no grounds for the basis of, any other claims that it may be made against the Indemnitee, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnitor; and (y) the Indemnitee will have no Liability with respect to any compromise or settlement of such claims or Action effected without Indemnitee’s consent. Notwithstanding the assumption by the Indemnitor of the defense of any Claim or Action, the Indemnitee will be permitted to join in such defense and to employ counsel at its own expense. If notice pursuant to Section 8.5(a) is given to an Indemnitee of the commencement of any Action and the Indemnitor does not, within ten days after such Indemnitee’s notice is given, give notice to the Indemnitee otherwise of its election to assume the defense of such Action, the Indemnitor will be bound by any determination made in such Action or any compromise or settlement effected by the Indemnitee. (d) Notwithstanding the foregoing, if the Indemnitee determines in good faith that there is a reasonable probability that an Action may adversely affect it or its Affiliates other than as a result of monetary Damages for which it would be entitled to indemnification under this Article 13. The Agreement, the Indemnitee may, by notice to the Indemnitor, assume the exclusive right to defend, compromise or settle such Action, but the Indemnitor will not be bound by any determination of an Action so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld, delayed or conditioned). (e) Indemnitor and Indemnitee agree to provide each other with reasonable access during regular business hours to the properties, Books and Records and Representatives of the other, as reasonably necessary in connection with the preparation for an existing or anticipated Action involving a Third-Party Claim and its employees obligations with respect thereto pursuant to this Article VIII. (f) For purposes of this Section 8.5, any reference to a “Indemnitee” and agents “Indemnitor” shall cooperate fully with the Indemnitor and its legal representatives mean (x) in the investigation and defense case of any actionClaim for indemnification by or against Freedom, claim Buyers’ Representative and (y) in the case of any Claim for indemnification by or liability covered by this indemnificationagainst Sellers, Sellers’ Representative.

Procedure for Third Party Claims. Any person that intends to (a) Promptly after obtaining knowledge of any claim or demand which has given rise to, or could reasonably give rise to, a claim for indemnification under this Article 13 hereunder, the party seeking indemnification shall give written notice of such claim (an "IndemniteeNotice of Claim") arising out to the other party within 60 days, but failure to do so will not prejudice any right of recovery to the extent that damage did not arise as a result of such failure to provide timely notice. 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 liability, loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification, and shall be accompanied by all documentation in the case of a Third Party third-party claim shall promptly notify against the indemnified party. (b) In the case of a third party claim, upon receiving the Notice of Claim, the indemnifying party (the "Indemnitor") shall resist, settle or otherwise dispose of such claim in respect such manner as it shall deem appropriate, including the employment of which the Indemnitee intends to claim such indemnifi- cationcounsel, and shall be responsible for the Indemnitor shallpayment of all settlements, to judgments, costs and expenses, including the extent applicable, assume the defense thereof with reasonable fees and expenses of any counsel mutually satisfactory to the parties; provided, however, that an Indemnitee retained. The indemnified party shall have the right to retain its own counselemploy separate counsel in any such action and to participate in the defense thereof, with but the reasonable fees and expenses thereof to of such counsel shall be paid at the indemnified party's expense unless: (i) the employment has been specifically authorized by the Indemnitorindemnifying party in writing; (ii) the indemnifying party has improperly failed to assume the defense and employ counsel; or (iii) the named parties to any action (including any impleaded parties) include the Surviving Corporation, if Ebank and/or the Shareholders, and the indemnified party has been advised by such counsel that representation of such Indemnitee the Surviving Corporation, Ebank and/or the Shareholders by the same counsel retained by the Indemnitor 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 Indemnitee and action on behalf of the indemnified party). (c) The party seeking indemnification shall comply with the foregoing procedure for each claim arising hereunder, whether or not the amount of such claims exceeds any other party represented minimum amount. All Notices of Claim for general contingencies must be delivered within the time frame permitted by such counsel in such proceedingsSection 9.2. The parties' indemnity obligations indemnified party shall cooperate with the indemnifying party in defending any such claim and provide any books, records, information or testimony requested, which is in the hands of or under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent control of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to indemnified party or obtainable by the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationindemnified party without unreasonable expense.

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party shall be given within ten (10) days (or such later time period if the "Indemnitor"party seeking indemnification will be materially prejudiced by such ten day notice requirement, but in such cases, as promptly as possible) after receipt by any Seller Indemnitee or Buyer Indemnitee of actual knowledge of the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim to the extent known, and include copies of any written correspondence from the party asserting such claim or initiating such action. The indemnifying party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. In the event that the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. No settlement of a matter by the party seeking indemnification shall be binding on the indemnifying party for purposes of establishing such party's indemnification obligations hereunder. (b) With respect of to actions as to which the Indemnitee intends indemnifying party does not exercise its right to claim assume the defense, the party seeking indemnification shall assume and control the defense of and contest such indemnifi- cationaction with counsel chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, the cost of such participation to be at its own expense. The indemnifying party shall be obligated to pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the extent that such fees and expenses relate to claims as to which indemnification is payable under Sections 7.2 or 7.3. (c) Both the indemnifying party and the Indemnitor shallindemnified party shall cooperate fully with one another in connection with the defense, compromise, or settlement of any such claim or action, including, without limitation, by making available to the other all pertinent information and witnesses within its control. Without limitation of the foregoing, any party granted the right to direct the defense of a threatened or actual suit, investigation or proceeding (i) keep the other fully informed of material developments in the action, suit, investigation or proceeding at all stages thereof; (ii) promptly submit to the other copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received in connection with the action, suit, investigation or proceeding; (iii) permit the other and its counsel, to the extent applicablepracticable, assume to confer on the conduct of the defense thereof with counsel mutually satisfactory of the action, suit, investigation or proceeding; and (iv) to the parties; providedextent practicable, howeverpermit the other and its counsel an opportunity to review all legal papers to be submitted prior to their submission. The parties shall make available to each other and each other's counsel and accountants all of its or their books and records relating to the action, suit, investigation or proceeding, and each party shall render to the other such assistance as may be reasonably required in order to insure the proper and adequate defense of the action, suit, investigation or proceeding. The parties shall use their respective good faith efforts to avoid the waiver of any privilege of either party. (d) In the event that a party makes an indemnity claim that is determined by a court of competent jurisdiction to be without reasonable basis in law or fact, that an Indemnitee party shall have the right to retain its own counsel, with the reasonable fees bear all costs and expenses thereof to be paid (including court costs and reasonable legal and accounting fees) incurred by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by in investigating and defending against such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnification.

Procedure for Third Party Claims. Any person A Party that intends to claim indemnification under this Article 13 Agreement (an "the “Indemnitee"”) arising out of a Third Party claim shall promptly notify the indemnifying party other Party (the "“Indemnitor"”) in writing of such claim any Claims in respect of which the Indemnitee or its affiliates, directors, officers, members, employees, counsel, agents or representatives intends to claim such indemnifi- cationindemnification, and the Indemnitor shallIndemnitor, at its cost and expense, shall have the right to participate in, and to the extent applicablethe Indemnitor so desires, to assume the defense thereof with counsel mutually satisfactory to the partiesParties; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any the other party Party represented by such counsel in such proceedingsproceeding. The parties' Indemnitor shall control the defense and/or settlement of any such Claims, and this indemnity obligations under this Article 13 agreement shall not apply to amounts paid in settlement of connection with any loss, claim, liability or action Claims if such settlement is effected payments are made without the consent of the Indemnitor, which consent shall not be withheld unreasonablyunreasonably withheld, delayed or conditioned. Any Indemnitee's The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such actionClaim, if materially and to the extent prejudicial to the Indemnitor's its ability to defend such actionClaim, shall to such extent relieve the such Indemnitor of any liability to the Indemnitee under this Article 136. At the Indemnitor’s request and expense, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability Claims covered by this indemnificationindemnification and provide full information with respect thereto.

Procedure for Third Party Claims. Any person that intends The obligations and liabilities of the Indemnifying Party (as hereinafter defined) under Section 8.04 with respect to claim claims resulting from the assertion of liability by third parties (including governmental penalties, fines and assessments) shall be subject to the following terms and conditions: (a) The party claiming indemnification under this Article 13 (an the "IndemniteeINDEMNIFIED PARTY") arising out of a Third Party claim shall promptly notify give prompt written notice to the indemnifying other party (the "IndemnitorINDEMNIFYING PARTY") of such any assertion of liability by a third party which might give rise to a claim by the Indemnified Party against the Indemnifying Party based on the indemnity agreements contained in Section 8.02 and 8.03. Such notice shall comply with the provisions of Section 9.09; PROVIDED that failure to give notice under this Section 8.04 (a) shall not relieve the Indemnifying Party from its obligation pursuant to this Section 8.04 unless the failure to give timely notice adversely prejudices the rights of the Indemnifying Party to settle, dismiss or otherwise satisfy any damages, losses, obligations, liabilities, claims, actions or causes of action to be indemnified pursuant to this Section 8.04; (b) In the event any claim, action, suit or proceeding (a "LEGAL ACTION") is brought or made against an Indemnified Party, with respect of to which the Indemnitee intends to claim such indemnifi- cationIndemnifying Party may have liability under an indemnity agreement contained in Section 8.02 or 8.03, and the Indemnitor Legal Action shall, upon the written agreement of the Indemnifying Party that it is obligated to indemnify under such an indemnity agreement, be defended (and such defense shall include all proceedings on appeal or for review which counsel for the extent applicable, assume Indemnifying Party shall deem appropriate) by the Indemnifying Party. Such defense thereof with counsel mutually satisfactory to shall be conducted totally within the parties; provided, however, that an Indemnitee control and discretion of the Indemnifying Party. The Indemnified Party shall have the right to retain be represented by counsel and accountants, at its own counselexpense, and the Indemnified Party shall be kept fully informed as to such Legal Action at all stages thereof whether or not it is represented. If the Indemnifying Party does not agree that it is obligated to indemnify under Section 8.02 or Section 8.03 with respect to a Legal Action, it shall nevertheless have the reasonable fees and expenses thereof right to be paid represented by counsel and accountants, at its own expense, and the Indemnifying Party shall be kept fully informed as to such Legal Action at all stages thereof whether or not it is so represented. Until the Indemnifying Party shall have so assumed the defense of any Legal Action, all legal or other expenses reasonably incurred by the Indemnitor, if representation of such Indemnitee Indemnified Party shall be borne by the counsel retained by Indemnifying Party to the Indemnitor would be inappropriate due extent an obligation to actual indemnify exists under Section 8.02 or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings8.03. The parties' indemnity obligations under this Article 13 Indemnifying Party shall not apply make available to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent Indemnified Party and its attorneys and accountants all books and records of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure Indemnifying Party relating to deliver notice such Legal Action and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to facilitate the Indemnitor within a reasonable time after the commencement proper and adequate defense of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnification.Legal Action;

Procedure for Third Party Claims. Any person that intends All claims for indemnification made under this Agreement resulting from, related to claim or arising out of an Action by a third-party (a “Third-Party Claim”) against an Indemnified Person shall be made in accordance with the procedures set forth in this Section 9.5(c). In the event an Indemnified Person becomes aware of a Third-Party Claim which such Indemnified Person reasonably believes may result in a Loss for which such Indemnified Person is entitled to indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim IX, the Indemnified Person shall reasonably promptly notify the indemnifying party (the "Indemnitor") Indemnifying Person of such claim by delivery of a Claim Certificate to the Indemnifying Person. Delay or failure in respect so notifying the Indemnifying Person shall relieve the Indemnifying Person of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, its obligations under this Article IX to the extent applicablethat the Indemnifying Person is prejudiced by reason of such delay or failure. Within thirty (30) days after delivery of such Claim Certificate, the Indemnifying Person may, upon written notice thereof to the Indemnified Person, assume control of the defense thereof of such Third-Party Claim (including the compromise or settlement thereof) if (i) the Indemnifying Person provides written notice to Indemnified Person that the Indemnifying Person intends to undertake such defense and acknowledges its indemnification obligations under this Agreement with respect to such Third Party Claim (subject to any limitations set forth herein); (ii) the Third-Party Claim involves only monetary damages and does not seek an injunction or other equitable relief; and (iii) the defense of the Third-Party Claim is competently conducted by legal counsel mutually satisfactory reasonably acceptable to the partiesIndemnified Person. If the Indemnifying Person does not assume control of such defense or fails to continue to conduct the defense in good faith (or otherwise subsequently loses the right to control such defense), the Indemnified Person shall control such defense on behalf of the Indemnified Person. Whichever party is not controlling such defense may participate therein (but, for the avoidance of doubt, shall not have any right to settle such Third-Party Claim without the prior written consent of the party the defense, such consent not to be unreasonably withheld, delayed or conditioned) at its own expense; provided, however, that an Indemnitee shall have if the right to retain its own Indemnifying Person assumes control of such defense and the Indemnified Person reasonably concludes, based on the written advice of independent counsel, that the Indemnifying Persons and the Indemnified Person have conflicting interests with respect to such Third-Party Claim, where representation of both the Indemnifying Persons and the Indemnified Person by the same counsel would be prohibited by rules or regulations governing the professional conduct of such counsel, the reasonable out-of-pocket fees and expenses of independent counsel to the Indemnified Person solely in connection therewith shall be considered Losses for purposes of this Agreement; provided, further, however, that in no event shall the Indemnifying Persons be responsible for the fees and expenses of more than one additional counsel for all Indemnified Persons with respect to any Third-Party Claim or set of related Third-Party Claims. The party controlling such defense shall keep the other party reasonably advised of the status of such Third-Party Claim and the defense thereof and shall consider recommendations made by the other party with respect thereto. The party not controlling the defense shall, and shall cause its Affiliates to, (i) provide to the party controlling the defense and its counsel reasonable access during normal business hours to their respective records and personnel relating to the Third-Party Claim and (ii) reasonably cooperate with the party conducting the defense in the defense or settlement thereof. The party controlling the defense of any Third-Party Claim shall not agree to any settlement of such Third-Party Claim without the prior written consent of the party not controlling the defense, such consent not to be paid by unreasonably withheld, delayed or conditioned. Notwithstanding the Indemnitorforegoing, if representation the Indemnifying Person is controlling the defense of a Third-Party Claim, and it receives a firm offer to settle or compromise such Third-Party Claim that is solely for money damages (and if, the Indemnified Person is a Buyer Indemnified Party, for an amount equal to or less than the remaining funds in the Indemnity Escrow Account at such time, net of amounts reserved in the Indemnity Escrow Account for any other pending claims), provides a complete release of the Indemnified Person in connection with such Third-Party Claim and, other than confidentiality requirements, contains no other material ongoing obligations, and the Indemnifying Person desires to accept and agree to such offer, the Indemnifying Person shall give written notice to that effect to the Indemnified Person (a “Settlement Notice”). If the Indemnified Person fails to consent to such firm offer within ten (10) Business Days after its receipt of the Settlement Notice, the Indemnified Person shall be deemed to have rejected such offer and shall be obligated to assume the defense of such Indemnitee by Third-Party Claim (and all costs and expenses related to the counsel retained by defense thereof after the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee date of its receipt of the Settlement Notice), and any other party represented by such counsel in such proceedings. The parties' indemnity the Indemnifying Person’s indemnification obligations under this Article 13 Agreement with respect to such Third-Party Claim shall be limited to and will not apply exceed (but may be less than) the amount that the Indemnifying Person would have been obligated to amounts paid in pay if the Indemnified Person had not rejected such proposed settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationcompromise.

Procedure for Third Party Claims. Any person that intends to (a) Promptly after obtaining knowledge of any claim or demand which has given rise to, or could reasonably give rise to, a claim for indemnification under this Article 13 hereunder, the party seeking indemnification shall give written notice of such claim (an "IndemniteeNotice of Claim") arising out to the other party in accordance with the terms of the Escrow Agreement. 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 liability, loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification, and shall be accompanied by all documentation in the case of a Third Party third-party claim against the indemnified party. (b) In the case of a claim between the parties hereto, the terms of the Escrow Agreement shall promptly notify control the resolution of such claim. In the case of a third party claim, upon receiving the Notice of Claim, the indemnifying party (the "Indemnitor") shall resist, settle or otherwise dispose of such claim in respect such manner as it shall deem appropriate, including the employment of which the Indemnitee intends to claim such indemnifi- cationcounsel, and shall be responsible for the Indemnitor shallpayment of all settlements, to judgments, costs and expenses, including the extent applicable, assume the defense thereof with reasonable fees and expenses of any counsel mutually satisfactory to the parties; provided, however, that an Indemnitee retained. The indemnified party shall have the right to retain its own counselemploy separate counsel in any such action and to participate in the defense thereof, with but the reasonable fees and expenses thereof to of such counsel shall be paid at the indemnified party's expense unless: (i) the employment has been specifically authorized by the Indemnitorindemnifying party in writing; (ii) the indemnifying party has improperly failed to assume the defense and employ counsel; or (iii) the named parties to any action (including any impleaded parties) include the Merger Sub, if InterCept and/or the Company or the Shareholder, and the indemnified party has been advised by such counsel that representation of such Indemnitee Merger Sub, InterCept and/or the Company or the Shareholder by the same counsel retained by the Indemnitor 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 Indemnitee and action on behalf of the indemnified party). (c) The party seeking indemnification shall comply with the foregoing procedure for each claim arising hereunder, whether or not the amount of such claims exceeds any other minimum amount. All Notices of Claim for general contingencies must be delivered within the time frame permitted by the Escrow Agreement for the party represented by making such counsel claim(s) to collect from the Escrow Fund, as defined in such proceedingsthe Escrow Agreement. The parties' indemnity obligations indemnified party shall cooperate with the indemnifying party in defending any such claim and provide any books, records, information or testimony requested, which is in the hands of or under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent control of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to indemnified party or obtainable by the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationindemnified party without unreasonable expense.

Procedure for Third Party Claims. Any person In the event that intends to claim indemnification under this Article 13 any Loss is asserted or assessed against, or incurred by, any Indemnified Party in connection with any litigation, arbitration or judicial or similar proceeding initiated or commenced by any third party, or in connection with any administrative, civil or other proceeding initiated or commenced by any governmental authority (an "Indemnitee") arising out of a Third collectively, “Proceedings”), the Indemnified Party claim shall promptly notify the indemnifying party (Indemnified Parties of the "Indemnitor") of such claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, assume the defense thereof with counsel mutually satisfactory to the partiescommencement thereof; provided, however, that an Indemnitee any failure or delay to provide such notice shall have not affect the right obligations of the Indemnifying Parties hereunder unless such failure or delay materially prejudices the ability of the Indemnifying Parties to retain its own counseldefend such Proceeding. Upon receipt of such notice, the Indemnifying Parties shall assume the defense of such Proceeding, with counsel reasonably satisfactory to the reasonable fees and expenses thereof to be paid by Indemnified Parties that are defendants in or the Indemnitor, if representation subjects of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedingsProceeding. The parties' indemnity obligations under this Article 13 Indemnifying Parties shall not apply to amounts paid in settlement of settle any loss, claim, liability or action if such settlement is effected Proceeding without the consent of the IndemnitorIndemnified Parties that are defendants in or the subjects of such Proceeding, which consent shall not be unreasonably withheld unreasonablyor delayed. Any Indemnitee's failure to deliver notice to If the Indemnitor within a reasonable time after the commencement defendants in or subjects of any Proceeding include both an Indemnified Party and an Indemnifying Party, and if the Indemnifying Parties have been advised by counsel that such actioncounsel cannot represent both the Indemnifying Parties and the Indemnified Party due to legal ethics requirements, if materially prejudicial then the Indemnified Parties that are defendants in or subjects of such Proceeding shall have the right, at the expense of the Indemnifying Party, to the Indemnitor's ability select one counsel to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives participate in the investigation and defense of such Proceeding on behalf of such Indemnified Parties. Notwithstanding the foregoing, an Indemnified Party shall not be prevented from retaining its own legal counsel, at such Indemnified Party’s expense, in connection with any action, claim or liability covered by this indemnificationProceeding.

Procedure for Third Party Claims. Any person that intends The rights and obligations of the Indemnitee and Indemnitor with respect to claim indemnification under this Article 13 (an "Indemnitee") Indemnification Claims resulting from or arising out of a Third Party claim Claim shall be subject to the following conditions: (a) If a party receives notice of the assertion of any Third Party Claim for which it intends to make an Indemnification Claim, the Indemnitee shall promptly notify the indemnifying party provide written notice (the "Indemnitor"an “Indemnification Notice”) of such claim assertion to the Indemnitor; provided that failure of the Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of any of its obligations hereunder except to the extent the Indemnitor is prejudiced by such failure. The Indemnification Notice shall describe in reasonable detail the nature of the Third Party Claim and the basis for an Indemnification Claim and shall be accompanied by papers and documents which have been served upon the Indemnitee and such other documents and information as may be appropriate to an understanding of such Third Party Claim and the liability of the Indemnitor to indemnify the Indemnitee hereunder. (b) Upon receipt of an Indemnification Notice, the Indemnitor shall have the right and obligation to promptly assume the defense, negotiation and/or settlement of such Third Party Claim with counsel reasonably satisfactory to the Indemnitee, and shall give prompt written notice to the Indemnitee of its intent to do so. (c) Notwithstanding Section 9.4(b), if (i) an Indemnitee is obligated to permit an insurer to assume the defense of a Third Party Claim, (ii) an Indemnitee determines in good faith that there is a reasonable probability that a Third Party Claim may materially and adversely affect it or its Affiliates other than as a result of the payment of monetary damages, or (iii) the Indemnitor and Indemnitee are both named parties in a Third Party Claim and there are legal defenses available to the Indemnitee that are different from or in addition to those available to the Indemnitor, then, at the option of the Indemnitee, the Indemnitee may, by notice to the Indemnitor, reassume the defense, negotiation and/or settlement of any such Third Party Claim previously assumed by the Indemnitor and relieve Indemnitor of the obligation to assume its defense of the Third Party Claim, provided that the exercise of that option shall not relieve Indemnitor of its obligation to hold Indemnitee harmless and indemnify Indemnitee from Damages arising from such Third Party Claim. (d) If the Indemnitor does not assume the defense of such Third Party Claim in accordance with Section 9.4(b) or Indemnitee assumes its own defense as provided in Section 9.4(c), the Indemnitee shall have full authority to defend, negotiate, settle or otherwise dispose of any such Third Party Claim at the risk of and sole cost and expense of the Indemnitor; provided that the Indemnitee shall at all times act reasonably and in good faith as if it were ultimately liable with respect to such Third Party Claim. If the Indemnitee receives an offer to settle such Third Party Claim which offer satisfies the conditions in Section 9.4(f)(i)-(iv) it shall present such offer to the Indemnitor, and if the terms of such offer are acceptable to and can be performed by the Indemnitor, then the Indemnitor’s liability hereunder with respect to such Third Party Claim shall not exceed the Damages to which the Indemnitee intends to claim is entitled at the time of such indemnifi- cation, offer and the Indemnitor shallcost to implement the terms of such settlement offer. (e) The party controlling the defense of a Third Party Claim shall keep the Indemnitee or Indemnitor, as the case may be, fully informed at all stages of the defense of such Third Party Claim. The party not controlling the defense of any such Third Party Claim shall have the right, at its sole cost and expense, to the extent applicableparticipate in, assume but not control, the defense thereof of any such Third Party Claim. (f) The Indemnitor shall not settle without the consent of the Indemnitee any such Third Party Claim the defense of which it has assumed unless: (i) such settlement requires only payment of money damages; (ii) all obligations to be performed under such settlement shall be performed by the Indemnitor; (iii) with counsel mutually respect to such settlement there is no finding or admission of any violation of law, any violation of the rights of any person or any liability to any person and (iv) the Indemnitee receives, as a part of such settlement, an unconditional release, in form and substance reasonably satisfactory to Indemnitee, providing that such Third Party Claim and any other liability asserted, or which could have been asserted against the partiesIndemnitee in connection with such Third Party Claim, is being fully satisfied, discharged and released by reason of such settlement. If the Indemnitor receives an offer to settle such Third Party Claim or makes an offer (acceptable to the person or entity bringing the Third Party Claim) to settle such Third Party Claim which offer's terms can be performed by it and satisfy all of the conditions in (i) through (iv) above, it shall present such offer to the Indemnitee and if the Indemnitee refuses to accept such offer then the Indemnitor's liability to the Indemnitee hereunder with respect to such Third Party Claim shall not exceed the Damages to which the Indemnitee is entitled at the time of such offer and the cost to implement the terms of such settlement offer. (g) So long as the Indemnitor is in good faith defending such Third Party Claim, Indemnitee shall not compromise or settle such Third Party Claim; provided, however, that an the Indemnitee shall have the right to retain settle any Third Party Claim at any time if the Indemnitee waives its own counsel, right to recover Damages therefor from the Indemnitor. (h) Each party shall cooperate with the reasonable fees and expenses thereof to be paid other in the defense, negotiation and/or settlement of any such Third Party Claim. In connection with any defense of a Third Party Claim undertaken by the Indemnitor, if representation the Indemnitee shall provide Indemnitor, its counsel, accountants and other representatives with reasonable access to relevant properties, contracts, books and records and make available such personnel of such the Indemnitee by the counsel retained by as the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationreasonably request.

Procedure for Third Party Claims. (a) Any person that intends Purchaser Indemnified Person and any Member Indemnified Person shall each be referred to claim collectively herein as an "Indemnified Person." Any Indemnified Person seeking indemnification under with respect to any losses, claims, damages, liabilities or expenses shall give notice to the Person from whom indemnification is sought (each, an "Indemnifying Person") on or before the date specified in Section 10.05. (b) If any claim, demand, liability or obligation is asserted by any third party against any Indemnified Person, the Indemnifying Person shall have the right, unless otherwise precluded by applicable law, to conduct and control the defense, compromise or settlement of any action or threatened action brought against the Indemnified Person in respect of matters addressed by the indemnity set forth in this Article 13 X (an "IndemniteeAction") arising out of a Third Party claim shall promptly notify the indemnifying party (the "Indemnitor") of such claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an Indemnitee ). The Indemnified Person shall have the right to retain its own counselemploy counsel separate from counsel employed by the Indemnifying Person in connection with any such Action or threatened Action and to participate in the defense thereof, with but the reasonable fees and expenses thereof to be paid of such counsel employed by the IndemnitorIndemnified Person shall be at the sole expense of the Indemnified Person, if representation unless (i) the Indemnifying Person shall have elected not, or, after reasonable written notice of any such Action or threatened Action, shall have failed, to assume or participate in the defense thereof, (ii) the employment thereof has been specifically authorized by the Indemnifying Person in writing, or (iii) the parties to any such Action or threatened Action (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and the Indemnifying Person shall have been advised in writing by counsel for the Indemnified Person that there may be one or more defenses available to the Indemnified Person that are not available to the Indemnifying Person or legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Person and the Indemnified Person (in any such case, the Indemnifying Person shall not have the right to assume the defense of such Indemnitee Action on behalf of the Indemnified Person), in either of which events referred to in clauses (i), (ii) and (iii) the fees and expenses of one such separate counsel employed by the counsel retained by Indemnified Person shall be at the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedingsexpense of the Indemnifying Person. The parties' indemnity obligations under this Article 13 Indemnifying Person shall not apply to amounts paid in settlement of any lossnot, claim, liability or action if such settlement is effected without the written consent of the IndemnitorIndemnified Person, which settle or compromise any such Action or threatened Action or consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement entry of any such action, if materially prejudicial judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnification.Indemnified

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (the "Indemnitor") shall be given promptly after receipt by any Seller Indemnitee or Buyer Indemnitee of such claim in respect actual knowledge of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim to the extent known, and include copies of any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnifying party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. In the event that the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. (b) With respect to actions as to which the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense of and contest such action with counsel chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, if materially prejudicial the cost of such participation to be at its own expense. The indemnifying party shall be obligated to pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the Indemnitor's ability extent that such fees and expenses related to defend claims as to which indemnification is payable under Sections __ or __, as such action, shall relieve expenses are incurred. (c) Both the Indemnitor of any liability to indemnifying party and the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents indemnified party shall cooperate fully with one another in connection with the Indemnitor and its legal representatives in the investigation and defense defense, compromise, or settlement of any such claim or action, claim or liability covered including, without limitation, by this indemnificationmaking available to the other all pertinent information and witnesses within its control.

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (shall be given promptly after receipt by the "Indemnitor") Shareholder or the Company Indemnitee of actual knowledge of the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicableknown, and include copies of any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnified party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. If the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. (b) For actions where the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense thereof of and contest such action with counsel mutually satisfactory chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defence of such action, the cost of such participation to be at its own expense. The indemnifying party shall pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the parties; providedextent that such fees and expenses relate to claims as to which indemnification is payable under Sections 6.2 or 6.3, howeveras such expenses are incurred. (c) Both the indemnifying party and the indemnified party shall cooperate fully with one another in connection with the defense, that an Indemnitee compromise, or settlement of any such claim or action, including, without limitation, by making available to the other all pertinent information and witnesses within its control. (d) No indemnified party shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and settle any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected brought against it without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13indemnifying party. The Indemnitee and its employees and agents indemnifying party shall cooperate fully with have the Indemnitor and its legal representatives in right to settle any action brought against an indemnified party as long as the investigation and defense indemnified party has been delivered a complete release as a condition of any action, claim or liability covered by this indemnificationthe settlement.

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (the "Indemnitor") shall be given promptly after receipt by any Seller Indemnitee or Buyer Indemnitee of such claim in respect actual knowledge of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim to the extent known, and include copies of any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnifying party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. In the event that the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. (b) With respect to actions as to which the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense of and contest such action with counsel chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, if materially prejudicial the cost of such participation to be at its own expense. The indemnifying party shall be obligated to pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the Indemnitor's ability extent that such fees and expenses related to defend claims as to which indemnification is payable under Sections 8.2 or 8.3, as such action, shall relieve expenses are incurred. (c) Both the Indemnitor of any liability to indemnifying party and the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents indemnified party shall cooperate fully with one another in connection with the Indemnitor and its legal representatives in the investigation and defense defense, compromise, or settlement of any such claim or action, claim or liability covered including, without limitation, by this indemnificationmaking available to the other all pertinent information and witnesses within its control.

Procedure for Third Party Claims. Any person that intends to Promptly after receipt by an Indemnified Party of notice of the commencement of any action or demand or claim indemnification under this Article 13 by a third party (an a "IndemniteeThird Party Claim") arising out which gives rise to Damages, such Indemnified Party shall, if a claim in respect thereof is to be made against a Shareholder, give notice to the Shareholder Representative (as defined in the Escrow Agreement) of its assertion of such claim for indemnification and provide reasonable detail with respect thereto. Failure so to notify the Shareholder Representative shall not relieve any Shareholder of any liability that he/she may have to any Indemnified Party except to the extent that the defense of such action or Third Party Claim is materially prejudiced thereby. If any such action shall be brought or a Third Party claim Claim shall promptly notify be asserted against an Indemnified Party and it shall give notice to the indemnifying party Shareholder Representative of the commencement or assertion thereof, the Shareholder Representative shall, on behalf of the appropriate Shareholder, be entitled, at its own expense and not with recourse to the Escrow Fund (other than in the "Indemnitor") case of a final disposition or settlement of such claim in respect of which the Indemnitee intends action or Third Party Claim), to claim such indemnifi- cation, and the Indemnitor shallparticipate therein and, to the extent applicablethat it shall wish, to assume the defense thereof with counsel mutually reasonably satisfactory to such Indemnified Party. If the parties; providedShareholder Representative receives notice of any action or Third Party Claim, howeverit shall promptly notify the Indemnified Party as to whether, that at its expense and not with recourse to the escrow fund pursuant to the Escrow Agreement, it intends to control the defense thereof. If the Shareholder Representative defends an Indemnitee action, it shall have full control over the right litigation, including settlement and compromise thereof, subject only to retain its own counsel, with the reasonable fees and expenses following: no compromise or settlement thereof to may be paid effected by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected Shareholder Representative without the Indemnified Party's consent of the Indemnitor, (which consent shall not be withheld unreasonablyunreasonably withheld) unless (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against the Indemnified Party and (ii) the sole relief provided is monetary damages that are paid in full by a Shareholder or the Shareholder Representative. Any Indemnitee's failure to deliver If notice is given to the Indemnitor within a reasonable time after Shareholder Representative of the commencement of any such actionaction and it does not, if materially prejudicial within 20 days after the Indemnified Party's notice is given, give notice to the Indemnitor's ability Indemnified Party of its election to defend such actionassume the defense thereof, the Indemnified Party shall relieve have full control over the Indemnitor of any liability to the Indemnitee under this Article 13litigation, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee including settlement and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationcompromise thereof.

Procedure for Third Party Claims. Any person that intends to (a) Promptly after obtaining knowledge of any claim or demand which has given rise to, or could reasonably give rise to, a claim of indemnification under this Article 13 hereunder, the party seeking indemnification shall give written notice of such claim (an "IndemniteeNOTICE OF CLAIM") arising out to the other party within the survival period set forth in Section 9.01. The Notice of Claim shall set forth a Third Party brief description ------------ of the facts giving rise to such claim shall promptly notify and the amount (or a reasonable estimate) of the liability, loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification; (b) Upon receiving the Notice of Claim, the indemnifying party (the "Indemnitor") shall resist, settle or otherwise dispose of such claim in respect such manner as it shall deem appropriate, including the employment of which the Indemnitee intends to claim such indemnifi- cationcounsel, and shall be responsible for the Indemnitor shallpayment of all settlements, to judgment, costs and expenses, including the extent applicable, assume the defense thereof with reasonable fees and expenses of any counsel mutually satisfactory to the parties; provided, however, that an Indemnitee retained. The indemnified party shall have the right to retain its own counselemploy separate counsel in any such action and to participate in the defense thereof, with but the reasonable fees and expenses thereof to of such counsel shall be paid at the indemnified party's expense unless: (i) the employment has been specifically authorized by the Indemnitorindemnifying party in writing; (ii) the indemnifying party has improperly failed to assume the defense and employ counsel; or (iii) the named parties to any action (including any impleaded parties) include Buyer and/or KLI and/or JSL and/or Seller, if and the indemnified party has been advised by such counsel that representation of such Indemnitee parties by the same counsel retained by the Indemnitor would be inappropriate under applicable standards or 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 Indemnitee and action on behalf of the indemnified party). (c) The party seeking indemnification shall comply with the foregoing procedure for each claim arising hereunder, whether or not the amount of such claims exceeds any other party represented by such counsel in such proceedingsminimum amount. The parties' indemnity obligations indemnified party shall cooperate with the indemnifying party in defending any such claim and provide any books, records, information or testimony requested, which is in the hands of or under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent control of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationindemnified party.

Procedure for Third Party Claims. Any person that intends to (a) Promptly after obtaining knowledge of any claim or demand which has given rise to, or could reasonably give rise to, a claim for indemnification under this Article 13 hereunder, the party seeking indemnification shall give written notice of such claim (an "IndemniteeNotice of Claim") arising out to the other party within 60 days, but failure to do so will not prejudice any right of recovery to the extent that damage did not arise as a result of such failure to provide timely notice. 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 liability, loss, damage or expense suffered, or which may be suffered, by the party seeking indemnification, and shall be accompanied by all documentation in the case of a Third Party third-party claim shall promptly notify against the indemnified party. (b) In the case of a third party claim, upon receiving the Notice of Claim, the indemnifying party (the "Indemnitor") shall resist, settle or otherwise dispose of such claim in respect such manner as it shall deem appropriate, including the employment of which the Indemnitee intends to claim such indemnifi- cationcounsel, and shall be responsible for the Indemnitor shallpayment of all settlements, to judgments, costs and expenses, including the extent applicable, assume the defense thereof with reasonable fees and expenses of any counsel mutually satisfactory to the parties; provided, however, that an Indemnitee retained. The indemnified party shall have the right to retain its own counselemploy separate counsel in any such action and to participate in the defense thereof, with but the reasonable fees and expenses thereof to of such counsel shall be paid at the indemnified party's expense unless: (i) the employment has been specifically authorized by the Indemnitorindemnifying party in writing; (ii) the indemnifying party has improperly failed to assume the defense and employ counsel; or (iii) the named parties to any action (including any impleaded parties) include the Surviving Corporation, if Ebank and/or the Purchasers, and the indemnified party has been advised by such counsel that representation of such Indemnitee the Surviving Corporation, Ebank and/or the Purchasers by the same counsel retained by the Indemnitor 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 Indemnitee and action on behalf of the indemnified party). (c) The party seeking indemnification shall comply with the foregoing procedure for each claim arising hereunder, whether or not the amount of such claims exceeds any other party represented minimum amount. All Notices of Claim for general contingencies must be delivered within the time frame permitted by such counsel in such proceedingsSection 7.1. The parties' indemnity obligations indemnified party shall cooperate with the indemnifying party in defending any such claim and provide any books, records, information or testimony requested, which is in the hands of or under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent control of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to indemnified party or obtainable by the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationindemnified party without unreasonable expense.

Procedure for Third Party Claims. Any person that intends to Promptly after receipt by an Indemnified Party under Section 10.1 of notice of the commencement of any action or demand or claim indemnification under this Article 13 by a third party (an a "IndemniteeThird Party Claim") arising out which gives rise to Damages, such Indemnified Party shall, if a claim in respect thereof is to be made against an indemnifying party under such Section, give notice to the Shareholder Representative of its assertion of such claim for indemnification and of the commencement of the action of its assertion of such claim for indemnification and of the commencement of the action or assertion of the Third Party Claim with respect to which the claim for indemnification pertains. Failure to so notify the Shareholder Representative shall not relieve the Shareholder Indemnitors of any liability that they may have to any Indemnified Party except to the extent that the defense of such action or Third Party Claim is materially prejudiced thereby. If any such action shall be brought or a Third Party claim Claim shall promptly notify be asserted against an Indemnified Party and it shall give notice to the indemnifying party (Shareholder Representative of the "Indemnitor") commencement or assertion thereof, the Shareholder Representative shall be entitled, at the sole expense of such claim in respect of which the Indemnitee intends Shareholder Indemnitors, to claim such indemnifi- cation, and the Indemnitor shallparticipate therein and, to the extent applicablethat it shall wish, to assume the defense thereof with counsel mutually reasonably satisfactory to such Indemnified Party and, after notice from the parties; providedShareholder Representative to such Indemnified Party of the election to assume the defense thereof, however, that an Indemnitee the Shareholder Indemnitors shall have the right not be liable to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations Indemnified Party under this Article 13 X for any fees of other counsel or any other expense (unless such fees or expenses are incurred at the request of the Shareholder Indemnitors or the Shareholder Representative), in each case subsequently incurred by such Indemnified Party in connection with the defense thereof. If the Shareholder Representative receives notice of any action or Third Party Claim, it shall promptly notify the Indemnified Party as to whether, at its expense, it intends to control the defense thereof on behalf of the Shareholder Indemnitors. If the Shareholder Representative defends an action, it shall have full control over the litigation, including settlement and compromise thereof, subject only to the following: no compromise or settlement thereof may be effected by the Shareholder Representative without the Indemnified Party's consent (which shall not apply to amounts be unreasonably withheld) unless: (i) there is no finding or admission of any violation of law and no effect on any other claims that may be made against the Indemnified Party, and (ii) the sole relief provided is monetary damages that are paid in full by the Shareholder Indemnitors or, in the case of a final disposition or settlement of such action or Third Party Claim, out of the Escrow Fund. If notice is given to the Shareholder Representative of the commencement of any lossaction, claimand it does not, liability within 20 days after the Indemnified Party's notice is given, give notice to the Indemnified Party of its election to assume the defense thereof, the Shareholder Indemnitors shall not be bound by any compromise or action if such settlement is thereof effected by the Indemnified Party without the consent of the IndemnitorShareholder Indemnitors (or the Shareholder Representative on behalf of the Shareholder Indemnitors), which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationunreasonably withheld.

Procedure for Third Party Claims. Any person that intends Acquiror Indemnified Person and any Stockholder Indemnified Person shall each be referred to claim collectively herein as an "Indemnified Person." If any claim, demand, liability or obligation is asserted by any third party against any Indemnified Person, the Person from whom indemnification under is sought (each, an "Indemnifying Person") shall have the right, unless otherwise precluded by applicable law, to conduct and control the defense, compromise or settlement of any action or threatened action brought against the Indemnified Person in respect of matters addressed by the indemnity set forth in this Article 13 VII (an "IndemniteeAction") arising out of a Third Party claim ). The Indemnified Person shall promptly notify have the indemnifying party (right to employ counsel separate from counsel employed by the "Indemnitor") Indemnifying Person in connection with any such Action or threatened Action and to participate in the defense thereof, but the fees and expenses of such claim counsel employed by the Indemnified Person shall be at the sole expense of the Indemnified Person, unless (a) the Indemnifying Person shall have elected not, or, after reasonable written notice of any such Action or threatened Action, shall have failed, to assume or participate in the defense thereof, (b) the employment thereof has been specifically authorized by the Indemnifying Person in writing, or (c) the parties to any such Action or threatened Action (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and the Indemnifying Person shall have been advised in writing by counsel for the Indemnified Person that there may be one or more defenses available to the Indemnified Person that are not available to the Indemnifying Person or legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Person and the Indemnified Person (in any such case, the Indemnifying Person shall not have the right to assume the defense of such Action on behalf of the Indemnified Person), in either of which -42- 47 events referred to in clauses (a), (b) and (c) the fees and expenses of one such separate counsel employed by the Indemnified Person shall be at the expense of the Indemnifying Person. The Indemnifying Person shall not, without the written consent of the Indemnified Person, settle or compromise any such Action or threatened Action or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Person a release from all liability in respect of which such Action or threatened Action. Unless the Indemnitee intends to claim Indemnifying Person shall have elected not, or shall have after reasonable written notice of any such indemnifi- cation, and the Indemnitor shallAction or threatened Action failed, to the extent applicable, assume or participate in the defense thereof with counsel mutually satisfactory thereof, the Indemnified Person may not settle or compromise any Action or threatened Action without the written consent of the Indemnifying Person. If, after reasonable written notice of any such Action or threatened Action, the Indemnifying Person neglects to defend the partiesIndemnified Person, a recovery against the latter for damages suffered by it in good faith, is conclusive in its favor against the Indemnifying Person; provided, however, that an Indemnitee no such conclusive presumption shall have be made if the right to retain its own counsel, with the Indemnifying Person has not received reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent written notice of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to Action against the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnificationIndemnified Person.

Procedure for Third Party Claims. Any person that If an Indemnitee (for purposes of this Section 12.3, the term “Indemnitee” may refer to either or both the Interleukin Indemnitees and the Xxxxxxxxx Indemnitees, as the context may indicate) intends to claim indemnification under this Article 13 (an "Indemnitee") arising out of Section 12.3 for claims, demands, actions or other proceedings by a Third Party claim shall third party, it will promptly notify the indemnifying party other Party (the "“Indemnitor"”) in writing of such claim in respect of any claim, demand, action or other proceeding for which the Indemnitee intends to claim such indemnifi- cationindemnification, and the Indemnitor shallmay participate in, and, to the extent applicablethe Indemnitor so desires, assume the defense thereof of such claim, demand, action or proceeding with counsel mutually satisfactory to the partiesParties; provided, however, that an Indemnitee shall will have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such the Indemnitee and any other party Party represented by such counsel in such proceedingsproceeding. The parties' indemnity obligations under of this Article 13 shall Section 12.3 will not apply to amounts paid in settlement of any loss, claim, liability demand, action or action other proceeding if such settlement is effected without the consent of the Indemnitor, which consent shall will not be unreasonably withheld unreasonablyor delayed. Any Indemnitee's The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's its ability to defend such action, shall will relieve the Indemnitor of any liability obligation to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13Section 12.3. The Indemnitee and its employees and agents shall will reasonably cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any actionclaim, claim demand, action or liability other proceeding covered by this indemnificationSection 12.3.

Procedure for Third Party Claims. Any person that intends (a) Notice to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (shall be given promptly after receipt by the "Indemnitor") Shareholder or the Company Indemnitee of actual knowledge of the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicableknown, and include copies of any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnified party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. If the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld. (b) For actions where the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense thereof of and contest such action with counsel mutually satisfactory chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, the cost of such participation to be at its own expense. The indemnifying party shall pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the parties; providedextent that such fees and expenses relate to claims as to which indemnification is payable under Sections 5.2 or 5.3, howeveras such expenses are incurred. (c) Both the indemnifying party and the indemnified party shall cooperate fully with one another in connection with the defense, that an Indemnitee compromise, or settlement of any such claim or action, including, without limitation, by making available to the other all pertinent information and witnesses within its control. (d) No indemnified party shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and settle any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected brought against it without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if materially prejudicial to the Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13indemnifying party. The Indemnitee and its employees and agents indemnifying party shall cooperate fully with have the Indemnitor and its legal representatives in right to settle any action brought against an indemnified party as long as the investigation and defense indemnified party has been delivered a complete release as a condition of any action, claim or liability covered by this indemnificationthe settlement.

Procedure for Third Party Claims. Any person that intends to claim indemnification under this Article 13 (an "Indemnitee") arising out of a Third Party claim shall promptly notify the indemnifying party (the "Indemnitor") of such claim in respect of which the Indemnitee intends to claim such indemnifi- cation, and the Indemnitor shall, to the extent applicable, DIGEX will assume the defense thereof -------------------------------- of any Loss covered by Section 15(a) ("Indemnification by DIGEX: General") that is a claim by a third party against Pandesic. The Pandesic Indemnified Person shall have the right, but not the obligation, to participate, at its own cost and expense, in the defense or other opposition of any Loss through legal counsel selected by it and shall have the right, but not the obligation, to assert any and all cross-claims or counterclaims which it may have. The Pandesic Indemnified Person shall, at DIGEX's expense, (i) at all times cooperate in all reasonable ways with, make its relevant files and records available for inspection and copying by, make its employees reasonably available to and otherwise render reasonable assistance to DIGEX upon request, and (ii) not compromise or settle such Loss without the prior written consent of DIGEX. If DIGEX proposes to settle or compromise any Loss, DIGEX shall give written notice to that effect (together with counsel mutually satisfactory a statement in reasonable detail of the terms and conditions of such settlement or compromise) to the parties; providedPandesic Indemnified Person within a reasonable time prior to effecting such settlement or compromise. Notwithstanding anything contained herein to the contrary, however, that an Indemnitee the Pandesic Indemnified Person shall have the right to retain its own counsel, with the reasonable fees and expenses thereof to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. The parties' indemnity obligations under this Article 13 shall not apply to amounts paid in settlement of any loss, claim, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. Any Indemnitee's failure to deliver notice object to the Indemnitor within a reasonable time after the commencement settlement or compromise of any such action, if materially prejudicial Loss whereupon (i) the Pandesic Indemnified Person will assume the defense or other opposition of any such Loss and (ii) DIGEX shall be released from any and all liability with respect to any such Loss to the Indemnitor's ability to defend extent that such action, shall relieve liability exceeds the Indemnitor liability which DIGEX would have had in respect of any liability to the Indemnitee under this Article 13, but not any liability that it may have to the Indemnitee otherwise than under this Article 13. The Indemnitee and its employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim such a settlement or liability covered by this indemnificationcompromise.