Common use of Third Party Claims Clause in Contracts

Third Party Claims. (a) In the event of the assertion of any third-party Claim by an Indemnitee, the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect thereto.

Third Party Claims. If an Indemnitee becomes aware of a claim of a third party (aincluding for all purposes of this Section 7.04, any Governmental Authority) In (a “Third Party Action”) that such Indemnitee believes, in good faith, may result in a claim by it against an Indemnitor, such Indemnitee shall notify the event applicable Indemnitor of such claim as promptly as practicable, provided, however, that the assertion of any third-party Claim by an Indemnitee, failure to so notify the Indemnitor will have the right, subject shall not affect rights to indemnification hereunder except to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), extent that the Indemnitor will is materially prejudiced by such failure. The Indemnitor shall have the right to settle or compromise or take any corrective or remediation action with respect to any assume and conduct the defense of such Claim by all appropriate proceedingsclaim; provided, and the however, that Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion may not assume control of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, Third Party Action if (i) the Third Party Action seeks injunctive relief against the Indemnitee will but not against the Indemnitor or (ii) if the Losses of Indemnitee in respect of claims subject to the Indemnification Cap in such Third Party Action would reasonably be entitled, expected to be in excess of the Indemnification Cap . The Indemnitor shall conduct such defense in a commercially reasonable manner at its own cost and expense, and shall be authorized to settle any such claim without the consent of the Indemnitee; provided, however, that: (a) the Indemnitor shall not be authorized to encumber any assets of the Indemnitee or agree to any restriction that would apply to the Indemnitee or the conduct of the Indemnitee’s business; (b) the Indemnitor shall have paid or caused to be paid any amounts arising out of such settlement; and (c) a condition to any such settlement shall be a complete release of the Indemnitee with respect to such third party claim. The Indemnitee shall be entitled to participate in (but not control, except as set forth in the proviso to the second sentence of this Section 7.04) the defense of any Third Party Action with its own counsel and at its own expense. The Indemnitee shall cooperate fully with the Indemnitor in the defense of any such Claim and Third Party Action. If the Indemnitor chooses not to engage separate counsel assume the defense of its choice for such purpose; provided that, notwithstanding any Third Party Action in accordance with the foregoingprovisions hereof, the Indemnitee may defend such Third Party Action in a commercially reasonable manner and may settle such Third Party Action after giving written notice of the terms thereof to the Indemnitor. If the Indemnitor may not assume the control of the defense of a Third Party Action pursuant to the proviso to the second sentence of this Section 7.04, (x) the Indemnitee shall pay the reasonable costs and expenses of conduct such defense (including in a commercially reasonable attorneys’ fees manner at its own expense, and expenses) shall not settle any such claim without the consent of the Indemnitee if Indemnitor (iwhich shall not be unreasonably withheld) unless (a) the Indemnitor consents in writing Indemnitee shall not be authorized to paying such costs and expenses, (ii) the use encumber any assets of counsel chosen by the Indemnitor or agree to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties any restriction that would apply to such third-party Claim include both the Indemnitee and the Indemnitor and or the conduct of the Indemnitor’s business; (Ab) the Indemnitee shall have reasonably concluded that there are paid or may caused to be defenses available paid any amounts arising out of such settlement and Indemnitor shall not be liable to any Indemnitee or any other Person for any such amounts; and (c) a condition to any such settlement shall be a complete release of the Indemnitor with respect to such Indemnitee that are different from or additional to those available to the Indemnitor, or third party claim and (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (ivy) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject entitled to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any participate in such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, Third Party Action with its own counsel and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoat its own expense.

Third Party Claims. If an Indemnitee is entitled to indemnification pursuant to Section 4.1(a) because of a claim asserted by any claimant who is not an Indemnitee under this Agreement (a) In the event of the assertion of any third-party Claim by an Indemniteea "Third Person"), the Indemnitee shall give the Indemnitor will reasonably prompt notice thereof after such assertion is actually known to the Indemnitee. The Indemnitor shall have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable upon written notice to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage using counsel reasonably satisfactory to the Indemnitee, to investigate, secure, contest or settle the Claim alleged by such Third Person (a "Third Person Claim") with its own counsel at its own expense, provided that the Indemnitor has unconditionally acknowledged to the Indemnitee in each casewriting its obligation to indemnify the persons to be indemnified pursuant to Section 4.1(a) with respect to such Third Person Claim. The Indemnitee may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in a timely manner; provided, further, that, for the avoidance of doubt, which case such Claim and the prosecution and negotiation thereof representation shall be controlled by at the expense of the Indemnitor. Unless and until the Indemnitor subject so acknowledges its obligation to the other terms of this Section 11.05. Notwithstanding the foregoingindemnify, the Indemnitee will shall have the right to defend any such third-party Claim until such time as the Indemnitor agrees right, at its option, to assume and control the defense of such Claim, the Claim and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject look to the terms Indemnitor for the full amount of this Article XIthe costs of defense. If The failure of the Indemnitor has assumed to respond in writing to the defense aforesaid notice of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to such Third Person Claim within 30 calendar days after receipt thereof shall be deemed an election not to defend such Third Person Claim. If the Indemnitor does not so acknowledge its obligation to indemnify and assume the defense and settlement thereofof any such Third Person Claim: (i) the Indemnitee may defend against such claim, in such manner as it may deem reasonably appropriate, including, without limitation, settling such claim, after giving notice of the same to the Indemnitor, on such terms as the Indemnitee may deem reasonably appropriate; and (zii) consider the Indemnitor may participate in good faith (but not control) the recommendations made by defense of such action, with its own counsel at its own expense. Marketer and Producer shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the Indemnitee with respect theretodefense thereof.

Third Party Claims. (a) In the event that Acquirer becomes aware of the assertion a claim by a third party (a “Third-Party Claim”) that Acquirer in good faith believes may result in a claim for Indemnifiable Damages by or on behalf of any third-party Claim by an IndemniteeIndemnified Person, the Indemnitor will Acquirer shall have the rightright in its sole discretion to conduct the defense of and to settle or resolve such Third-Party Claim (and the costs and expenses incurred by Acquirer or its Affiliates in connection with defense, enforcement, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which Acquirer shall be entitled to receive indemnification pursuant to a claim made hereunder, and such costs and expenses shall constitute Indemnifiable Damages subject to indemnification under Section 7.2 regardless of whether it is ultimately determined that such Third-Party Claim arose out of, resulted from or was in connection with a matter listed in Section 7.2). The Securityholders’ Agent shall have the right to receive copies of all pleadings, notices and communications with respect to such Third-Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person, subject to execution by the provisions Securityholders’ Agent of Acquirer’s (and, if required, such third party’s) standard non-disclosure agreement to the extent that such materials contain confidential or propriety information. However, Acquirer shall have the right in its sole discretion to determine and conduct the defense of any Third-Party Claim and the settlement, adjustment or compromise of such Third-Party Claim; provided that any settlement, adjustment or compromise of such Third-Party Claim shall not limit the ability of the Securityholders’ Agent from disputing any claim for indemnification under Section 7.2 except as otherwise expressly set forth in this Section 11.05 7.9). Unless otherwise consented to assume in writing in advance by Acquirer in its sole discretion, the defense Securityholders’ Agent and its Affiliates may not participate in any Third-Party Claim or any action related to such Third-Party Claim (including any discussions or negotiations in connection with the settlement, adjustment or compromise thereof). In the event that the Securityholders’ Agent has consented to the amount of same at any settlement or resolution by Acquirer of any such Indemnitor’s expenseclaim (which consent shall not be unreasonably withheld, including conditioned or delayed), or if the appointment and selection Securityholders’ Agent shall have been determined pursuant to Section 8.11 to have unreasonably withheld, conditioned or delayed its consent to the amount of counsel any such settlement or resolution, neither the Securityholders’ Agent nor any Indemnifying Holder shall have any power or authority to object under this Article VII to the amount of any claim by or on behalf of any Indemnified Person against the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action Escrow Fund for indemnity with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion settlement or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoresolution.

Third Party Claims. (a) In the event SumTotal becomes aware of a third-party claim, action or proceeding that SumTotal reasonably believes may result in a demand against the Escrow Fund, SumTotal shall promptly notify the Stockholder Representative of such claim, action or proceeding, and the Stockholder Representative shall be entitled, at its expense, to participate in any defense of such claim. 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 (including reasonable counter-claims), regardless of the assertion outcome of such claim, shall be deemed Losses hereunder and shall be subject to the limitations set forth in Section 2.10(b) of the Pathlore Schedules with respect to Agreed Claims (it being understood that any amounts awarded in connection with any such counter-claims shall be first offset against any Losses subject to indemnification (and limits thereto) hereunder and incurred in connection with the underlying third-party claim). SumTotal shall have the right in its sole discretion to control the defense of all such claims and to settle all such claims; provided, however, that SumTotal shall not settle any third-party Claim by claims without the prior written consent of the Stockholder Representative, which consent will not be unreasonably withheld or delayed. To the extent the Stockholder Representative presents the Indemnified Party with a bona fide offer from the third-party claimant regarding a settlement for money damages in an Indemniteeamount which, taken together with all Losses relating to the Indemnitor will have underlying third-party claims, is less than the rightvalue remaining in the Escrow Fund that is not already subject to existing claims pursuant to an Officer’s Certificate or Certificates, and which offer includes no material obligations or restrictions on SumTotal or its business other than the payment of money damages, then SumTotal may elect to (A) settle the third-party claims on the proposed terms and conditions of the proposed settlement in which case SumTotal shall recover the full amount of such settlement (and related Losses) from the Escrow Fund pursuant to Article VII without any objection from the Stockholder Representative, subject to the provisions set forth limitations on recovery provided in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action 7.2(i) with respect to Agreed Claims or (B) reject the settlement in which case SumTotal agrees and acknowledges that is shall thereafter be responsible for all Losses in excess of the proposed settlement offer (including litigation expenses incurred thereafter). The Indemnified Party shall keep the Stockholder Representative informed of any such Claim by all appropriate proceedings, settlement proposals and the Indemnitor parties shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of consult and cooperate with each other in good faith in connection with any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoclaims.

Third Party Claims. In order for a party (athe “indemnitee”) In to be entitled to any indemnification provided for under this Agreement with respect to, arising out of or involving a claim or demand made by any Person against the event indemnitee (a “Third-Party Claim”), such indemnitee must promptly deliver a notice in writing of the assertion Third-Party Claim (a “Notice of any third-Claim”) to the party from whom indemnification hereunder is sought (the “indemnitor”). Such Notice of Claim shall state in reasonable detail the amount or estimated amount of such claim (to the extent known) and shall identify the specific basis (or bases) for such claim, including the representations, warranties, covenants or obligations in this Agreement alleged to have been breached. Failure to give such prompt notification shall not affect the indemnification provided hereunder, except and only to the extent the indemnitor shall have been actually prejudiced as a result of such failure. Thereafter, upon request by an Indemniteethe indemnitor, the Indemnitor will have the right, subject indemnitee shall deliver to the provisions set forth indemnitor, without undue delay, copies of all notices and documents (including court papers received by the indemnitee) relating to the Third-Party Claim so long as any such disclosure could not reasonably be expected to have an adverse effect on the attorney-client or any other privilege that may be available to the indemnitee in this Section 11.05 connection therewith. Within ten (10) Business Days of receiving a Notice of Claim, the indemnitor may elect to assume and control the defense of same at such Indemnitor’s expensethe Third-Party Claim set forth therein, including with counsel selected by the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable indemnitor, by providing written notice thereof to the Indemniteeindemnitee and acknowledging in such notice the indemnitor’s indemnification obligations toward the indemnitee in respect of such Third-Party Claim. Subject to Section 11.05(d)If the indemnitor assumes such defense in accordance with the preceding sentence, the Indemnitor will indemnitee shall have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes participate in the defense of any thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnitor, it being understood that the indemnitor shall control such third-party Claimdefense; provided, that the Indemnitee will indemnitee shall be entitled, at its own cost and the indemnitor’s expense, to participate with the Indemnitor in the defense retain one firm of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense choosing (including reasonable attorneys’ fees and expensesalong with any required local counsel) of the Indemnitee if (ia) the Indemnitor consents in writing to paying such costs indemnitor and expensesindemnitee so mutually agree, (iib) the use indemnitor fails to retain counsel reasonably satisfactory to the indemnitee within ten (10) Business Days of counsel chosen by receiving the Indemnitor to represent the Indemnitee would, based on the good faith advice applicable Notice of such Indemnitee’s outside counsel, present such counsel with a conflict of interestClaim, (iiic) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee indemnitee shall have reasonably concluded that there are or may be legal defenses available to such Indemnitee it that are different from or additional in addition to those available to the Indemnitor, indemnitor or (Bd) the Indemnitee’s outside named parties in any such proceeding (including any impleaded parties) include both the indemnitor and indemnitee and representation of both sets of parties by the same counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between them. If the Indemnitor and indemnitor does not assume the defense of a Third-Party Claim in accordance with this paragraph within ten (10) Business Days after delivery of the applicable Notice of Claim, the indemnitee against which such Indemnitee, or Third-Party Claim has been asserted shall (iv) the Indemnitor fails upon delivering notice to assume such defense or engage counsel reasonably satisfactory effect to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will indemnitor) have the right to defend undertake the defense, compromise and settlement of such Third-Party Claim (subject to the following paragraph), and the indemnitor shall be liable for any resulting settlement of such thirdThird-party Party Claim until such time as and for any final judgment with respect thereto, subject in all cases to the Indemnitor agrees to assume limitations and other defenses that the indemnitor has or may have hereunder. In the event the indemnitor assumes the defense of the Third-Party Claim in accordance with this paragraph, the indemnitor shall keep the indemnitee reasonably informed of the progress of any such defense, compromise or settlement, and in the event that indemnitee assumes the defense of the claim in good faith, the indemnitee shall keep the indemnitor reasonably informed of the progress of any such defense, compromise or settlement. If the indemnitor so assumes the defense of any Third-Party Claim in accordance with this paragraph, all of the indemnified parties shall reasonably cooperate with the indemnitor in the defense or prosecution thereof. Such cooperation shall include, at the expense of the indemnitor, the retention and (upon the indemnitor’s request) the provision to the indemnitor of records and information which are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any costs material provided hereunder. The indemnitee shall not settle, compromise or expenses incurred by discharge such Third-Party Claim without the Indemnitee in connection therewith will indemnitor’s prior written consent (which consent shall not be Losses hereunder and subject to indemnification in accordance with and subject unreasonably withheld, conditioned or delayed). The indemnitor shall not, without the written consent of the indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), enter into any settlement, compromise or discharge or consent to the terms entry of this Article XI. If any judgment which imposes any obligation or restriction upon the Indemnitor has assumed indemnitee or does not include as an unconditional term thereof the defense giving by each claimant or plaintiff to such indemnitee of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee release from all liability with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretosuch Third-Party Claim.

Third Party Claims. (a) In the event Purchaser or Seller becomes aware of the assertion of any a third-party Claim by an Indemniteeclaim which it reasonably believes may result in indemnification pursuant to applicable provisions of this Article 9, such Person shall promptly notify the other party of such claim; provided that, the Indemnitor will have failure of any Purchaser Indemnified Party to give prompt notice of such third-party claim (the right, subject “Claim Notice”) shall not release or otherwise affect Seller’s obligations with respect to its indemnification obligations except to the provisions set forth in this Section 11.05 extent it is actually and materially prejudiced thereby. The Seller may elect to assume the defense of same such third-party claim at its sole expense by notifying the Indemnified Party of such Indemnitor’s expense, including the appointment and selection of counsel on behalf election promptly after receipt of the Indemnitee so long as Claim Notice, but in no event later than fifteen (15) Business Days of its receipt thereof. The failure to give such counsel is reasonably acceptable notice shall not affect Seller’s right to assume such defense, except to the Indemniteeextent any Purchaser Indemnified Party is actually and materially prejudiced thereby. Subject If Seller so elects to Section 11.05(dassume the defense of such third-party claim, (i) the Purchaser Indemnifying Party shall proceed to defend such claim in a diligent manner with counsel of its choice (which must be reasonably satisfactory to the Purchaser Indemnified Party), ; (ii) the Indemnitor will Purchaser Indemnified Party shall make available to Seller any non-privileged documents and materials in its possession that may be reasonably necessary to the defense of such claim; (iii) Seller shall keep the Purchaser Indemnified Party reasonably informed of all material developments and events relating to such claim; (iv) the Purchaser Indemnified Party shall have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes participate in the defense of any such third-party Claimclaim, the Indemnitee will be entitled, but at its own sole cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and unless (A) the Indemnitee engagement of counsel shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitorbeen specifically authorized in writing by Seller, or (B) the Indemniteenamed parties to the third-party complaint (including impleaded parties) include both the Purchaser Indemnified Parties and Seller, and in the opinion of counsel to the Purchaser Indemnified Party, there exists a conflict (or potential conflict) of interest between such parties, in which case the reasonable expenses of the Purchaser Indemnified Party’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common paid or reimbursed by Seller (provided that in no event shall Seller be liable for more than one counsel for the Indemnitee and the Indemnitor due all Purchaser Indemnified Parties with respect to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until claim); and (v) Seller shall not, without the consent of the Purchaser Indemnified Party (which consent may not be unreasonably withheld or delayed), settle, compromise or discharge such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant claim or permit a default or consent to this Section 11.05entry of judgment, it will (x) keep the Indemnitee advised unless any such settlement, compromise, discharge or consent includes a release of the status Purchaser Indemnified Party from all liability arising out of such third-party Claim claim, provides solely for monetary relief and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made involves no finding or admission of any violation of any Law by the Indemnitee with respect theretoPurchaser Indemnified Party and involves no limitation on the Use by Purchaser or rights of Purchaser in any Purchased Asset.

Third Party Claims. (a) In the event an Indemnified Party becomes aware of a third-party claim which such Indemnified Party reasonably believes may result in a demand for indemnification pursuant to this Article 7, the Indemnified Party shall notify the Indemnifying Party of such claim, and the Indemnifying Party shall be entitled, at its expense, to assume the defense of such claim within five (5) days of receipt of such notice, if (i) (A) the amount at issue in the claim (as alleged by the third party claimant or, if no amount is so specified, as estimated in good faith by the board of directors of the assertion Indemnified Party) is less than (B) the difference between (x) the maximum potential dollar amount of the Indemnifying Party’s indemnification obligations hereunder with respect to such claim and (y) the amount of all indemnity payments made by the Indemnifying Party pursuant hereto through such date, and (ii) (A) the Indemnifying Party has sufficient cash and cash equivalents (in the case of Seller excluding all amounts that may be required to satisfy the Liability Amounts, as well as all amounts that Seller is required to retain for the protection of the Buyer Indemnified Parties pursuant to Section 7.7) to fully defend such claim, and (B) the Indemnifying Party has sufficient cash and cash equivalents (in the case of Seller excluding all amounts that may be required to satisfy the Liability Amounts) to satisfy the full amount at issue in such claim (as specified or estimated by the method set forth above). Before assuming the defense of any third-party Claim by an Indemniteeclaim hereunder, the Indemnitor will have Indemnifying Party shall be required substantiate that the right, subject above financial conditions are met through delivery of bank statements and other documentary evidence reasonably satisfactory to the provisions set forth Indemnified Party. An Indemnified Party’s failure to comply with the notification requirement contained in this Section 11.05 the immediately preceding sentence shall not adversely affect such Indemnified Party’s right to indemnification hereunder except to the extent such failure to provide notice materially prejudices the Indemnifying Party’s ability to defend against a third-party claim. If the Indemnifying Party is entitled hereunder and so elects to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion claim or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense proceeding: (including reasonable attorneys’ fees and expenses) of the Indemnitee if (ia) the Indemnitor consents Indemnifying Party shall proceed to defend such claim or proceeding in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel a diligent manner with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the IndemniteeIndemnified Parties; (b) the Indemnified Parties shall make available to the Indemnifying Party copies of any non-privileged documents and materials in the possession of the Indemnified Parties that may be reasonably necessary to the defense of such claim or proceeding; (c) the Indemnifying Party shall keep the Indemnified Parties informed of all material developments and events relating to such claim or proceeding; (d) the Indemnified Parties shall have the right (at their own expense) to participate in the defense of such claim or proceeding with their own separate counsel, in each case, in a timely manner; provided, further, that, for provided that at all times the avoidance of doubt, such Claim and the prosecution and negotiation thereof Indemnifying Party shall be controlled by the Indemnitor have (subject to the other terms limitations contained elsewhere herein) control of this Section 11.05the defense and the authority and power to make all decisions concerning the defense; and (e) the Indemnifying Party shall not settle, adjust or compromise such claim or proceeding without the prior written consent of the Indemnified Parties, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to Indemnifying Party may not assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant claim against an Indemnified Party hereunder if (i) the claim seeks one or more equitable remedies against the Indemnified Party, including, without limitation, an injunction, or (ii) the claim, if adjudicated or decided in a manner adverse to this Section 11.05the Indemnified Party, it will would (x) keep in the Indemnitee advised good faith determination of the status board of such third-party Claim and directors of the defense thereof on a Indemnified Party) result in or be reasonably current basis, (y) reasonably consult with the Indemnitee with respect likely to result in material harm to the defense and settlement thereofIndemnified Party’s business, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoreputation or prospects.

Third Party Claims. (a) In the event that Purchaser becomes aware of the assertion a claim by a third party that would result in Indemnifiable Damages under Section 9.2 if it were assumed that such claim was ultimately determined in favor of any thirdsuch third party (a “Third-party Claim by an IndemniteeParty Claim”), the Indemnitor will Purchaser shall have the right, subject right in its sole discretion to the provisions set forth in this Section 11.05 to assume conduct the defense of same at and to settle or resolve such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the IndemniteeThird-Party Claim. Subject to Section 11.05(d), the Indemnitor will The Equityholders’ Representative shall have the right to settle or compromise or take any corrective or remediation action receive copies of all pleadings, notices and communications with respect to such Third-Party Claim to the extent that receipt of such documents does not adversely affect any privilege relating to any Indemnified Person (and in such Claim event, Purchaser shall cooperate in good faith with the Equityholders’ Representative to provide such information to the Equityholders’ Representative in a manner that does not adversely affect such applicable privilege, including by all appropriate proceedingsentering into joint defense agreements or similar arrangements). However, Purchaser shall have the right in its sole discretion to determine and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes conduct the defense of any Third-Party Claim and the settlement, adjustment or compromise of such thirdThird-party Party Claim. Unless otherwise consented to in writing in advance by Purchaser in its sole discretion, the Indemnitee will be entitled, at Equityholders’ Representative and its own cost and expense, Affiliates may not participate in any Third-Party Claim or any action related to participate such Third-Party Claim (including any discussions or negotiations in connection with the Indemnitor in settlement, adjustment or compromise thereof). In the defense event that the Equityholders’ Representative has consented to the amount of any settlement or 70 resolution by Purchaser of any such Claim claim (which consent shall not be unreasonably withheld, conditioned or delayed and which consent shall be deemed to engage separate counsel have been given unless the Equityholders’ Representative shall have objected within 30 days after a written request therefor by Purchaser), or if the Equityholders’ Representative shall have been judicially determined to have unreasonably withheld, conditioned or delayed its consent to the amount of its choice any such settlement or resolution, neither the Equityholders’ Representative nor any Selling Securityholder shall have any power or authority to object under this Article IX to the amount of any claim by or on behalf of any Indemnified Person against the Holdback Fund for indemnity with respect to such purpose; provided that, notwithstanding settlement or resolution. Notwithstanding anything to the foregoingcontrary contained herein, the Indemnitor Equityholders’ Representative shall pay not be entitled to object to a claim for Indemnifiable Damages incurred by an Indemnified Person in connection with the reasonable costs and expenses of such defense defense, enforcement, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and expensescourt or arbitration costs) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based a Third-Party Claim on the good faith advice basis that there has been no ultimate determination (including a judgment of such Indemnitee’s outside counsel, present such counsel a court or a finding of an arbitral body) with a conflict of interest, (iii) the named parties respect to such thirdThird-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05Party Claim. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to extent that this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult 9.8 conflicts with the Indemnitee provisions of Section 6.12(e) with respect to Tax Claims, Section 6.12(e) will apply to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoconduct of Tax Claims.

Third Party Claims. If a claim shall be asserted or litigation shall be commenced (asuch a claim or litigation being referred to herein as a “Third-Party Claim”) In for which indemnification under this Agreement shall be sought, the event party entitled to indemnification hereunder (“Indemnitee”) shall give notice thereof to the party required to indemnify such party hereunder (“Indemnitor”) as promptly as practicable after Indemnitee’s receipt of such assertion of a claim or the commencement of such litigation (it being agreed, however, that no delay on the part of the assertion of any third-party Claim by an Indemnitee, Indemnitee in notifying the Indemnitor of the Third-Party Claim will have relieve the right, subject Indemnitor from any obligation under this Agreement except to the provisions set forth in this Section 11.05 to assume extent that the delay materially prejudices the defense of same the Third-Party Claim by the Indemnitor). Indemnitor may, at such Indemnitor’s its sole cost and expense, including upon written notice given to Indemnitee within twenty (20) days after its receipt of Indemnitee’s notice under this Section 5, assume the appointment and selection defense, with counsel reasonably satisfactory to Indemnitee, of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the IndemnitorThird-Party Claim. If the Indemnitor assumes the defense of any such thirdThird-party Party Claim, the obligations of Indemnitor hereunder as to such Third-Party Claim shall be limited to taking all steps necessary in the defense or settlement thereof and to holding Indemnitee will be entitledharmless from, at its own cost against and expensein respect of any and all Losses caused by or arising out of any settlement approved by Indemnitor or any judgment in connection with such Third-Party Claim. Except with the prior written consent of Indemnitee, Indemnitor shall not consent to the settlement or entry of any judgment arising from any such Third-Party Claim which in each case does not include as an unconditional term thereof the giving by the claimant or plaintiff, as the case may be, to participate Indemnitee of an unconditional release from all liability in respect thereof unless Indemnitor has actually paid the full amount of any such settlement or judgment. Indemnitee shall cooperate with Indemnitor as necessary to the conduct of the defense of, and shall be entitled to receive copies of all pleadings and other material papers in connection with, any Third-Party Claim. If Indemnitor in does not assume the defense of any Third-Party Claim, Indemnitee may defend the same in such Claim and manner as it may deem appropriate, including but not limited to engage separate counsel of its choice for settling such purpose; provided thatThird-Party Claim, notwithstanding the foregoing, the Indemnitor shall pay the after giving reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) notice of the same to Indemnitor, on such terms as Indemnitee if may deem appropriate, and Indemnitor will promptly reimburse Indemnitee in accordance with the provisions of this Section 5, subject to its having liability hereunder. Anything contained in this Section 5 to the contrary notwithstanding: (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may not be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees entitled to assume the defense of such Claimany Third-Party Claim if the Third-Party Claim seeks an order, injunction or other equitable relief against Indemnitee which, if successful, might materially interfere with, or adversely affect, the operation by Indemnitee of its business; and (ii) Indemnitee may defend any costs claim to which Indemnitee may have a defense or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject counterclaim which Indemnitor is not entitled to indemnification in accordance with and subject assert, to the terms of this Article XI. If the Indemnitor has assumed the extent necessary to assert and maintain such defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoor counterclaim.

Third Party Claims. (a) In the event If any Indemnitee receives notice of the assertion of any third-party Claim claim or of the commencement of any action or proceeding by any entity that is not either a FairPoint Indemnitee or a Supplier Indemnitee (each, a “Third Party Claim”) against such Indemnitee, with respect to which an IndemniteeIndemnitor is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnitor prompt written notice thereof, but in any event not later than ten calendar days after receipt of notice of such Third Party Claim, provided, however, that the failure of an Indemnitee to notify the Indemnitor within the time period set forth herein shall only relieve the Indemnitor from its obligation to indemnify to the extent that the Indemnitor is materially prejudiced by such failure or delay (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnitor will have the rightshall be entitled, subject upon written notice to the provisions set forth in this Section 11.05 Indemnitee, to assume the investigation and defense of same thereof at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action expense with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, provided that the Indemnitor shall not have the right to assume the defense of any Third Party Claim in each the event such Third Party Claim is primarily for injunctive relief or criminal penalty of the Indemnitee, and in any such case, the reasonable fees and expenses of counsel to the Indemnitee in a timely mannerconnection with such Third Party Claim shall be considered “Losses” for purposes of this Agreement. Whether or not the Indemnitor elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof; provided, furtherhowever, that, for that the avoidance Indemnitee shall pay the fees and disbursements of doubt, such Claim and separate counsel unless (1) the prosecution and negotiation thereof shall be controlled employment of such separate counsel has been specifically authorized in writing by the Indemnitor; (2) the Indemnitor subject has failed to assume the defense of such Third Party Claim within 20 calendar days after receipt of notice thereof with counsel reasonably satisfactory to such Indemnitee; or (3) the named parties to the other terms proceeding in which such claim, demand, action or cause of this Section 11.05action has been asserted include both the Indemnitor and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more good faith defenses that may be available to the Indemnitee that are in conflict with those available to the Indemnitor or that the Indemnitor and Indemnitee have actual material conflicting interests with respect to such claim, demand, action or cause of action. Notwithstanding the foregoing, the Indemnitee will have Indemnitor shall not be liable for the right to defend fees and disbursements of more than one counsel for all Indemnitees in connection with any such third-party Claim until such time as one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of an Indemnitee, which shall not be unreasonably withheld or delayed, the Indemnitor agrees will not enter into any settlement of or consent to assume the defense entry of judgment in connection with any Third Party Claim that (i) would lead to liability or create any financial or other obligation on the part of the Indemnitee, (ii) does not contain, as an unconditional term thereof, the release of the Indemnitee from all liability in respect of such Claim, Third Party Claim or such Third Party Claim is not dismissed against the Indemnitee with prejudice and without the imposition of any costs financial or expenses incurred by other obligation on the Indemnitee or (iii) admits the liability or fault of the Indemnitee (the “Settlement Requirements”). If a settlement offer solely for money damages (and otherwise satisfying the Settlement Requirements) is made to resolve a Third Party Claim and the Indemnitor notifies the Indemnitee in connection therewith will be Losses hereunder writing of the Indemnitor’s willingness to accept the settlement offer and subject pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee and if the Indemnitee fails to indemnification in accordance consent to such settlement offer within ten calendar days after its receipt of such notice, Indemnitee may continue to contest such claim, free of any participation by the Indemnitor, and the amount of any ultimate liability with and subject respect to the terms of this Article XI. If such Third Party Claim that the Indemnitor has assumed an obligation to pay hereunder shall be limited to the defense lesser of a third-party Claim pursuant to this Section 11.05, it will (x) the amount of the settlement offer that the Indemnitee declined to accept plus the Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or (y) the aggregate Losses of the Indemnitee with respect to such claim. The party controlling any defense shall keep the Indemnitee other party advised of the status of such third-party Claim action, suit, proceeding or claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) shall consider in good faith the all reasonable recommendations made by the Indemnitee other party with respect thereto.

Third Party Claims. (a) In the event of the assertion of any third-party Claim by an Indemnitee, the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense Buyer becomes aware of a third-party Claim pursuant to this Section 11.05claim or demand (including a threat in writing of such), it will (x) keep the Indemnitee advised of the status of such or is served with a third-party complaint, counterclaim or cross-claim in litigation (collectively, a “Third-Party Claim”) that Buyer reasonably believes may result in a claim for indemnification under this Agreement, Buyer shall promptly notify Seller in the relevant Claim Certificate (or amendment thereof) of such Third-Party Claim and (subject to any applicable confidentiality or privacy obligations or law) the defense thereof on identity of the person or party asserting such claim or demand; provided that the failure to give prompt notice shall not affect the indemnification provided hereunder except if and to the extent Seller has been actually and materially prejudiced as a reasonably current basisresult of such failure. Seller shall have the right to receive copies of all pleadings, (y) reasonably consult with the Indemnitee notices and communications with respect to the defense and settlement thereofThird-Party Claim to the extent that receipt of such documents does not affect any claim of privilege relating to any Indemnified Person, and subject to execution by Seller of Buyer’s (zand, if required, such third party’s) consider standard non-disclosure agreement to the extent that such materials contain confidential or propriety information. Seller, shall, at its sole expense, be entitled to participate in good faith any defense of such Third-Party Claim; provided that Buyer shall have the recommendations right in its sole discretion to determine and conduct the defense of any Third-Party Claims. Buyer shall be entitled to settle such Third-Party Claim without the consent of Seller; provided that any settlement of a Third-Party Claim without the consent of Seller shall not be determinative of any indemnification Claim that may be made hereunder resulting from such Third-Party Claim. Notwithstanding anything to the contrary contained herein, if there is a Third-Party claim that if adversely determined would give rise to a right of recovery for Indemnifiable Damages hereunder that is either, (a) not otherwise subject to a settlement or other adjudication that is consented to in writing by Seller or (b) is not otherwise determined to constitute Indemnifiable Damages hereunder, then 50% of any amounts incurred by the Indemnitee Indemnified Persons in defense of such Third-Party Claim, shall be deemed Indemnifiable Damages and shall be borne by the Indemnifying Parties in accordance with respect theretothis Article VIII and the remaining 50% of such amounts shall be borne by the Indemnified Persons. If there shall be any conflicts between the provisions of this Section 9.6 and Section 6.10(b) (relating to Tax Contests), the provisions of Section 6.10(b) shall control.

Third Party Claims. (a) In the event of the assertion If Indemnitor acknowledges in writing within five Business Days after its receipt of any thirdLoss Notice relating to any Third-party Party Claim by an Indemniteeits obligation to indemnify and hold harmless any Indemnitee under this section from and against any Losses resulting from such Third-Party Claim, the then Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 shall be entitled to assume and control the defense of same such Third-Party Claim at such Indemnitor’s expense, including the appointment its expense and selection through counsel of its choice (which counsel on behalf of the Indemnitee so long as such counsel is shall be reasonably acceptable to such Indemnitee); provided that, if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the Indemnitee. Subject judgment of such Indemnitee for the same counsel to Section 11.05(d)represent both such Indemnitee and Indemnitor, the Indemnitor will have the right then such Indemnitee shall be entitled to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitledretain its own counsel, at its own Indemnitor's sole cost and expense, to participate in each jurisdiction for which such Indemnitee reasonably determines counsel is required. If Indemnitor is, directly or indirectly, conducting the defense against any Third-Party Claim, Indemnitee shall cooperate with the Indemnitor in such defense and make available to Indemnitor all witnesses, pertinent records, materials, and information in such Indemnitee's possession or under its control relating thereto as is reasonably required by Indemnitor. If any Indemnitee is, directly or indirectly, conducting the defense of against any such Claim and to engage separate counsel of its choice for such purpose; provided thatThird-Party Claim, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of cooperate with such Indemnitee in such defense (including reasonable attorneys’ fees and expenses) make available to such Indemnitee, at Indemnitor's sole cost and expense, all such witnesses, records, materials, and information in Indemnitor's possession or under its control relating thereto as is reasonably required by such Indemnitee. Indemnitor shall not settle any Third-Party Claim without the prior written consent of the Indemnitee if (i) which delivered the Indemnitor consents Loss Notice in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect thereto.

Third Party Claims. If a claim by a third party a (a“Third Party Claim”) In the event of the assertion of any third-is made against a Seller Indemnified Party or a Buyer Indemnified Party (an “Indemnified Party”), and if such party Claim by an Indemniteeintends to seek indemnity with respect thereto under Article 9 or Section 9.3, the Indemnitor will have the right, subject such Indemnified Party shall promptly furnish written notice to the provisions set forth in this Section 11.05 indemnifying party (the “Indemnitor”) of such claims. The Indemnitor shall have thirty (30) days after receipt of such notice to assume undertake, conduct, and control (through counsel of its own choosing and at its own expense) the defense thereof. The Indemnitor may not assume control of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Third Party Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents Third Party Claim relates to or arises in writing to paying such costs and expensesconnection with any criminal liability, (ii) the use of counsel chosen by Third Party Claim seeks an injunction or equitable relief against the Indemnitor to represent the Indemnitee wouldIndemnified Party, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, or (iii) the named parties Indemnified Party reasonably believes an adverse determination with respect to such third-party the Third Party Claim include both would be materially detrimental to the Indemnitee and Indemnified Party’s reputation or future business prospects, but in any event, shall remain subject to its indemnification obligations in this Article 9. If the Indemnitor elects to undertake the defense of any Third Party Claim, the Indemnified Party shall cooperate with it in connection therewith; provided that the Indemnitor shall not settle any such Third Party Claim without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld or delayed) unless the relief consists solely of money damages and includes a provision whereby the plaintiff or claimant in the matter releases Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, from all liability with respect thereto. The Indemnitor shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party (Ahowever, the fees and expenses of such counsel shall be borne by such Indemnified Party except if (i) the Indemnitee Indemnified Party shall have reasonably concluded determined in good faith that there are an actual or may be defenses available potential conflict of interest makes representation by the same counsel or the counsel selected by the Indemnitor inappropriate or (ii) the Indemnitor shall have authorized the Indemnified Party to such Indemnitee that are different from or additional to those available to employ separate legal counsel at the Indemnitor’s expense). So long as the Indemnitor, or at Indemnitor’s cost and expense, (Bi) has undertaken the Indemnitee’s outside counsel shall have defense of, and assumed full responsibility for all indemnified liabilities with respect to, such claim, (ii) is reasonably concluded it would be inappropriate under applicable standards contesting such claim in good faith, by appropriate proceedings, and (iii) has taken such action (including the posting of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemniteea bond, deposit, or (ivother security) as may be necessary to prevent any action to foreclose a lien against or attachment of the Indemnitor fails to assume property of the Indemnified Party for payment of such defense claim, the Indemnified Party shall not pay or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, settle any such Claim and the prosecution and negotiation thereof shall be controlled claim. Notwithstanding compliance by the Indemnitor subject to with the other terms of this Section 11.05. Notwithstanding the foregoingpreceding sentence, the Indemnitee will Indemnified Party shall have the right to defend pay or settle any such third-party Claim until claim, provided that in such time as event it shall waive any right to indemnity therefor by the Indemnitor agrees for such claim. If within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder, the Indemnitor does not notify the Indemnified Party that it elects (at Indemnitor’s cost and expense) to assume undertake the defense thereof and assume full responsibility for all indemnified liabilities with respect thereto, or gives such notice and thereafter fails to contest such claim in good faith or to prevent action to foreclose a lien against or attachment of such Claimthe Indemnified Party’s property as contemplated above, and any costs the Indemnified Party shall have the right to contest but shall not settle or expenses incurred compromise the claim and, to the extent the actions taken by the Indemnitee Indemnified Party in connection therewith will be Losses hereunder settling or compromising such claim are reasonable and subject in good faith, the Indemnified Party shall not thereby waive any right to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim indemnity therefor pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoAgreement.

Third Party Claims. (a) In the event of the assertion of any third-party Claim by an Indemnitee, the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense Buyer becomes aware of a third-party Claim (other than a claim that is the subject of an Agreed-Upon Loss) (a “Third-Party Claim”) which Buyer reasonably believes may result in a claim for indemnification pursuant to this Section 11.05Article VIII, it will Buyer shall promptly notify the Stockholder Representative (xor, in the event indemnification is being sought hereunder from fewer than all the Indemnifying Parties, such applicable Indemnifying Parties) keep of such Claim, and the Indemnitee advised Stockholder Representative shall be entitled on behalf of the status Indemnifying Parties (or, in the event indemnification is being sought hereunder from fewer than all the Indemnifying Parties, the applicable Indemnifying Parties shall be entitled), at their expense, to participate in, but not to determine or conduct, the defense of such Third-Party Claim. 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 by the Parent Indemnified Parties in defense of such Third-Party Claim, regardless of the outcome of such claim, shall be deemed Losses hereunder. Buyer shall have the right in its sole discretion to conduct the defense of, and to settle, any such Claim and the Stockholder Representative (or, in the event indemnification is being sought hereunder from fewer than all the Indemnifying Parties, such applicable Indemnifying Parties) shall not be entitled to participate in any negotiation of settlement, adjustment or compromise with respect to any such Third-Party Claim; provided, however, that except with the consent of the Stockholder Representative (or, in the event indemnification is being sought hereunder from fewer than all the Indemnifying Parties, such applicable Indemnifying Parties) (such consent not to be unreasonably withheld or delayed), no settlement of any such Third-Party Claim with third-party Claim and claimants shall be determinative of the defense thereof on a reasonably current basisamount of Losses relating to such matter; provided further, (y) reasonably consult with however, the Indemnitee consent of the Stockholder Representative with respect to any settlement of any such Third-Party Claim shall be deemed to have been given unless the defense and settlement thereofStockholder Representative shall have objected within thirty (30) days after a written request for such consent by Buyer. In the event that the Stockholder Representative has (or, and (zin the event indemnification is being sought hereunder from fewer than all the Indemnifying Parties, one or more of such applicable Indemnifying Parties have) consider consented to any such settlement, adjustment or compromise, the Indemnifying Parties or the consenting Indemnifying Parties, as applicable, shall have no power or authority to object under any provision of this Article VIII to the amount of such settlement, adjustment or compromise constituting a Payable Claim. Notwithstanding anything in good faith this Agreement to the recommendations contrary, this Section 8.6 shall not apply to any Third-Party Claim that is the subject of an Agreed-Upon Loss. Claims made by in respect of any Agreed-Upon Loss shall be resolved in the Indemnitee with respect theretomanner described in Section 8.6 above.

Third Party Claims. (a) In the event of the assertion of If any third-party Claim claim by an IndemniteeIndemnified Buyer Entity relates to a claim against the Indemnified Buyer Entity by a third party, the Indemnitor will have Seller may elect at any time to negotiate a settlement of such claim or to defend such claim at the right, Seller's own cost (subject to the provisions set forth in last sentence of this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment 11.5.3(b)) and selection of with its own counsel. The Seller's counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable must be satisfactory to the IndemniteeIndemnified Buyer Entity in its reasonable discretion. Subject If, within 30 days after an Indemnified Buyer Entity gives the Seller a Claim Notice relating to Section 11.05(d)a third party claim, the Indemnitor Seller (i) advises the Indemnified Buyer Entity in writing that the Seller will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion not defend or settle such proceedings at claim, or (ii) fails to make such an election in writing, the discretion Indemnified Buyer Entity may defend, settle, or pay the claim. Until the Seller makes an election under this Section 11.5.3(b), all of the IndemnitorIndemnified Buyer Entity's reasonable costs relating to such claim will be Damages to be indemnified by the Seller. Each party shall give the other party such assistance as may reasonably be requested to ensure the proper defense of such claim. If the Indemnitor assumes the defense of any Seller elects to defend such third-party Claimclaim, the Indemnitee will be entitled, Indemnified Buyer Entity may at its own cost and expense, to participate in such defense with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding choice. Such counsel must be satisfactory to the foregoingSeller in its reasonable discretion. Notwithstanding the above, the Indemnitor Seller shall pay allow the reasonable costs and expenses Indemnified Buyer Entity to assume part or all of such defense (including reasonable attorneys’ fees and expenses) of claim if the Indemnitee if Indemnified Buyer Entity reasonably believes such assumption is necessary to assure that (i) the Indemnitor consents in writing to paying such costs and expensesit may enforce any Mortgage Loan or Servicing Rights, (ii) the use its method of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interestconducting its business is not materially impaired, (iii) the named parties its authority to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are Service or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemniteeoriginate mortgage loans is not materially impaired, or (iv) its reputation, goodwill and/or financial condition are not materially impaired. Neither the Indemnitor fails Seller nor the Indemnified Buyer Entity is authorized to assume such defense settle or engage counsel reasonably satisfactory to the Indemnitee, in each case, in dispose of a timely manner; provided, further, that, for the avoidance claim of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to more than $5,000 without the other terms of this Section 11.05. Notwithstanding the foregoingparty's written consent, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will which shall not be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretounreasonably withheld.

Third Party Claims. The Indemnified Person will give written notice as promptly as is reasonably practicable, but in any event no later than ten (a10) In Business Days after receiving notice thereof, to the event Indemnifying Person of the assertion of any third-claim, or the commencement of any suit, action or proceeding, by any Person not a party Claim by an Indemniteehereto in respect of which indemnity may be sought under this Agreement, the Indemnitor will have the rightwhich notice will, subject to the provisions set forth in this Section 11.05 to assume the defense of same at extent such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel information is reasonably acceptable available, specify in reasonable detail the nature and amount of such claim together with such information as may be necessary for the Indemnifying Person to determine that the limitations in Section 9.4 have been satisfied or do not apply. Any failure to provide such notice within the specified period will not affect an Indemnified Party’s right to indemnification hereunder, except to the Indemniteeextent the Indemnifying Party is materially prejudiced as a result of such failure. Subject to Section 11.05(d)Article 10, the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to Indemnifying Person may (a) participate with the Indemnitor in the defense of any such Claim claim, suit, action or proceeding, and (b) upon notice given to engage separate the Indemnified Person within fifteen (15) Business Days after receiving notice from the Indemnified Person of any such claim, suit, action or proceeding, and provided such claim, suit, action or proceeding seeks only money damages in an amount which, when considered with other potential claims, would not reasonably be expected to exceed in any material amount the remaining portion of the Escrow Amount, assume the defense thereof with counsel of its own choice for and in the event of such purpose; provided thatassumption, notwithstanding will have the foregoingexclusive right, subject to clause (a) of Section 9.8, to settle or compromise such claim, suit, action or proceeding. If the Indemnifying Person assumes such defense, the Indemnitor shall pay Indemnified Person will have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Person; provided, however, that if in the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use opinion of counsel chosen by to the Indemnitor to represent the Indemnitee wouldIndemnified Party, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be legal defenses available to such Indemnitee an Indemnified Party that are different from or additional to those available to the IndemnitorIndemnifying Party, the Indemnifying Party’s counsel will assert such legal defenses on behalf of the Indemnified Party; or (B) there exists a conflict of interest between the Indemnitee’s outside counsel Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel liable for the Indemnitee reasonable fees and expenses of one additional counsel to the Indemnitor due Indemnified Party. Whether or not the Indemnifying Person chooses to actual defend or potential differing interests between prosecute any such claim, suit, action or proceeding, all of the Indemnitor and such Indemnitee, or (iv) parties hereto will cooperate in the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect thereto.

Third Party Claims. (a) In the event If any Indemnitee receives notice of the assertion of any third-party Claim claim or of the commencement of any Action by any Person that is not either a Buyer Indemnitee or a Seller Indemnitee (each, a “Third Party Claim”) against such Indemnitee, with respect to which an IndemniteeIndemnitor is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnitor prompt written notice thereof, but in any event not later than 30 days after receipt of notice of such Third Party Claim; provided, however, that the failure of an Indemnitee to notify the Indemnitor within the time period set forth herein shall only relieve the Indemnitor from its obligation to indemnify with respect to any particular Losses to the extent that the Indemnitor is materially prejudiced by such failure or delay (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnitor will have the rightshall be entitled, subject upon written notice to the provisions set forth in this Section 11.05 Indemnitee acknowledging its obligation to indemnify the Indemnitee against any and all Losses that may result from the Third Party Claim, to assume the investigation and defense of same thereof at such Indemnitor’s expenseexpense with counsel reasonably satisfactory to the Indemnitee; provided, including that (i) the appointment Indemnitor shall be entitled to direct the defense for only so long as the Indemnitor conducts the defense in an active and selection diligent manner, (ii) the Third Party Claim is not in respect of any matter involving criminal liability, and (iii) the primary remedy sought under the Third Party Claim is not the imposition of any equitable remedy that would be binding upon the Indemnitee or any of its affiliates. Whether or not the Indemnitor elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof. The Indemnitor will not, as long as it actively and diligently conducts the defense of any Action on behalf of the Indemnitee so long as such counsel is reasonably acceptable Indemnitee, be liable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle Indemnitee for any fees of such other counsel or compromise or take any corrective or remediation action other expenses with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, Action incurred by the Indemnitee will be entitled, at its own cost and expense, to participate in connection with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purposeAction; provided that, that notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee reasonably concludes and the Indemnitor and (A) the Indemnitee shall have reasonably concluded advises that there are or may be defenses available to such Indemnitee that are different from or additional in addition to those available to the Indemnitor, ; or (Bii) the Indemnitee’s outside counsel shall have reasonably concluded there is a conflict of interest that could make it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee Indemnitor and Indemnitee. Without the prior written consent of an Indemnitee, the Indemnitor due will not enter into any settlement of or consent to actual the entry of judgment in connection with any Third Party Claim that (i) would lead to liability or potential differing interests between create any financial or other obligation on the Indemnitor part of the Indemnitee, (ii) does not contain, as an unconditional term thereof, the unconditional release of the Indemnitee from all liability in respect of such Third Party Claim or such Third Party Claim is not dismissed against the Indemnitee with prejudice and such without the imposition of any financial or other obligation on the Indemnitee (iii) admits the liability or fault of the Indemnitee, (iv) seeks an injunction or other equitable relief against the Indemnitee, or (ivv) involves any criminal or quasi-criminal litigation to which the Indemnitor fails Indemnitee is a party (the “Settlement Requirements”). If a settlement offer solely for money damages (and otherwise satisfying the Settlement Requirements) is made to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in resolve a timely manner; provided, further, that, for the avoidance of doubt, such Third Party Claim and the prosecution Indemnitor notifies the Indemnitee in writing of the Indemnitor’s willingness to accept the settlement offer and negotiation thereof shall be controlled pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitor subject Indemnitee and if the Indemnitee fails to the other terms consent to such settlement offer within 10 days after its receipt of this Section 11.05. Notwithstanding the foregoingsuch notice, the Indemnitee will have may continue to contest such claim, free of any participation by the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such ClaimIndemnitor, and the amount of any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject ultimate liability with respect to indemnification in accordance with and subject to the terms of this Article XI. If such Third Party Claim that the Indemnitor has assumed an obligation to pay hereunder shall be limited to the aggregate Losses of the Indemnitee with respect to such claim. The party controlling any defense of a third-party Claim pursuant to this Section 11.05, it will (x) shall keep the Indemnitee other party advised of the status of such third-party Claim action, suit, proceeding or claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) shall consider in good faith the all reasonable recommendations made by the Indemnitee other party with respect thereto. The parties will cooperate with each other in good faith in the defense or prosecution of any Third Party Claim, including the retention and provision of records and information that are reasonably relevant to such Third Party Claim, and making employees and other representatives reasonably available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.

Third Party Claims. The Purchaser shall give prompt written notice to the Sellers of any pending or threatened claim or demand by a third party that the Purchaser has determined has given or could give rise to a right of indemnification hereunder (a) In each a “Third Party Claim”), describing in reasonable detail the event facts and circumstances with respect to the subject matter of such claim or demand; provided, however, that the failure to provide such notice shall not release the Sellers from any of its obligations under Section 6 except to the extent the Purchaser is materially prejudiced by such failure, it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the assertion of any third-party Claim by an Indemnitee, the Indemnitor will applicable survival period specified in Section 6.1 for such representation or warranty. The Sellers shall have the right, subject but not the obligation, to direct, through counsel of its own choosing, which counsel shall be reasonably satisfactory to the provisions set forth in this Section 11.05 Purchaser, the defense or settlement of any Third Party Claim the subject of indemnification hereunder at its own expense. If the Sellers elect to assume the defense of same at any such Indemnitor’s expenseThird Party Claim, including the appointment and selection of counsel on behalf Purchaser may participate in such defense, but in such case the expenses of the Indemnitee so long as Purchaser shall be paid by the Purchaser. The Purchaser shall provide the Sellers with reasonable access to its records and personnel relating to any such counsel is reasonably acceptable claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with the Sellers in the defense or settlement thereof, and the Sellers shall reimburse the Purchaser for all its reasonable out-of-pocket expenses in connection therewith. If the Sellers shall fail to the Indemnitee. Subject to Section 11.05(d)undertake any such defense, the Indemnitor will Purchaser shall have the right to settle undertake the defense or settlement thereof, at the Sellers’ expense. Whether or not the Sellers shall have assumed the defense of a Third Party Claim, the Purchaser shall not admit any liability with respect thereto, or settle, compromise or take any corrective discharge such Third Party Claim without the Sellers’ prior written consent which shall not be unreasonably delayed or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitorwithheld. If the Indemnitor Purchaser assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Third Party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of 6.5 and proposes to settle such third-party Claim and the defense thereof on claim or proceeding prior to a reasonably current basis, (y) reasonably consult with the Indemnitee with respect final judgment thereon or to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee forgo any appeal with respect thereto, then the Purchaser shall give the Sellers prompt written notice thereof and the Sellers shall have the right to participate in the settlement or assume or reassume the defense of such claim or proceeding at any time by written notice to the Purchaser.

Third Party Claims. If Parent becomes aware of a third-party claim that Parent believes may result in a claim for indemnification in accordance with Section 7.1 by or on behalf of an Indemnified Person, Parent shall promptly notify the Shareholders’ Representative of such third-party claim and provide the Shareholders’ Representative the opportunity to direct, through counsel of its own choosing (who shall be reasonably acceptable to Parent), at its own cost, the defense or settlement of such claim; provided, however, that (a) In the event claim or proceeding solely seeks (and continues to seek) monetary damages; (b) Parent reasonably determines in good faith that there is no reasonable likelihood that such claim will cause the Indemnified Persons to suffer Losses in excess of the assertion amount held in the Cash Escrow Fund and the Stock Escrow Fund from time to time during the pendency of the claim, excluding any third-party Claim by an Indemnitee, the Indemnitor will have the right, amount subject to any other claim; and (c) the provisions Shareholders’ Representative agrees in writing on behalf of all Indemnifying Shareholders that the Indemnifying Shareholders will be liable for any amounts paid in resolution or settlement of the claim regardless of the limitations set forth in this Section 11.05 ARTICLE 7 (the conditions set forth in clauses (a) through (c) are, collectively, the “Litigation Conditions”). If the Litigation Conditions are met and the Shareholders’ Representative elects to assume the defense of same at any such Indemnitor’s expenseclaim or proceeding, including the appointment and selection of counsel on behalf Shareholders’ Representative shall allow the Indemnified Persons to participate in such defense, but in such case the expenses of the Indemnitee so long as such Indemnified Persons shall be paid by the Indemnified Persons. An Indemnified Person shall provide the Shareholders’ Representative and counsel is reasonably acceptable with reasonable access to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect its records and personnel relating to any such Claim by all appropriate proceedingsclaim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with the Shareholders’ Representative in the defense or settlement thereof, and the Indemnitor Indemnified Persons shall use commercially be reimbursed for all of their reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitorout-of-pocket expenses in connection therewith. If the Indemnitor assumes Shareholders’ Representative elects to direct the defense of any such claim or proceeding, the Indemnified Persons shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless (i) the Shareholders’ Representative consents in writing to such payment, (ii) the Shareholders’ Representative withdraws from the defense of such asserted liability and Parent undertakes the defense or settlement of such claim or proceeding and settles such claim or proceeding in accordance with this Section 7.8 unless a final judgment from which no appeal may be taken by or on behalf of the Indemnifying Shareholders is entered against Indemnified Persons for such liability. If the Shareholders’ Representative fails to defend or if, after commencing or undertaking any such defense, the Shareholders’ Representative fails to prosecute or withdraws from such defense, or if any of the Litigation Conditions cease to be met, Parent shall have the right to undertake the defense or settlement thereof, and retain counsel, reasonably satisfactory to the Shareholders’ Representative, at the Indemnifying Shareholders’ expense; provided, however, that the Indemnifying Shareholders shall not be required to pay the fees and expenses of more than one counsel for the Indemnified Persons in any single action, except to the extent that two or more such Indemnified Persons shall have conflicting interests in the outcome of such action and, without the consent of the Shareholders’ Representative in writing, no settlement of any such claim with third-party Claimclaimants shall be determinative of the amount of Losses relating to such matter (but in no event shall the amount of Losses exceed the aggregate of the actual cost incurred by the Indemnified Persons in defending such claim and the amount of such settlement). If the Shareholders’ Representative consents to any such settlement, neither the Indemnitee will be entitledShareholders’ Representative nor any Indemnifying Shareholder shall have any power or authority to object to the amount or validity of any claim by or on behalf of any Indemnified Person for indemnity with respect to such settlement. Notwithstanding any other provision of this Agreement, at its own cost any costs and expenseexpenses of defense and investigation, to participate including court costs and reasonable attorneys fees incurred or suffered by the Indemnified Persons in connection with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided thatthird party claim, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded whether or not it is determined that there are was a breach or may be defenses available to such Indemnitee that are different from inaccuracy of a representation or additional to those available to the Indemnitorwarranty or any other matter specified in Section 7.1 as a basis for indemnification under this Agreement, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor constitute Losses subject to the other terms of this indemnities under Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect thereto7.1.

Third Party Claims. (a) In the event that Castlight becomes aware of the assertion a claim by a third party (a “Third-Party Claim”) that Castlight in good faith believes may result in a claim for Indemnifiable Damages by or on behalf of any third-party Claim by an IndemniteeIndemnified Person, the Indemnitor will Castlight shall have the right, subject right in its sole discretion to the provisions set forth in this Section 11.05 to assume conduct the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any resolve such Third-Party Claim by all appropriate proceedings, (and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense incurred by Castlight in connection with defense, enforcement, settlement or resolution (including reasonable attorneys’ fees (other than those of in-house legal counsel), other professionals’ and expensesexperts’ fees and court or arbitration costs) of shall be included in the Indemnitee if (i) the Indemnitor consents in writing Indemnifiable Damages for which Castlight shall be entitled to paying receive indemnification pursuant to a claim made hereunder, and such costs and expenses, expenses shall constitute Indemnifiable Damages subject to indemnification under Section 9.2; provided that either it is determined according to the procedures in this Article IX that the Third-Party Claim (iior the matters underlying the Third-Party Claim) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iiiconstitutes an indemnifiable matter under Section 9.2(a) the named parties to such third-party Claim include both the Indemnitee or Castlight and the Indemnitor Stockholders’ Agent otherwise agree in writing that such costs and (A) the Indemnitee expenses shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel constitute Indemnifiable Damages. The Stockholders’ Agent shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend receive copies of all pleadings, notices and communications with respect to such Third-Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person (and subject to execution by the Stockholders’ Agent of Castlight’s (and, if required, such thirdthird party’s) standard non-party Claim until disclosure agreement to the extent that such time as materials contain confidential or propriety information). However, Castlight shall have the Indemnitor agrees right in its sole discretion to assume determine and conduct the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a thirdThird-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Party Claim and the defense thereof on a reasonably current basissettlement, adjustment or compromise of such Third-Party Claim. Unless otherwise consented to in writing in advance by Castlight in its sole discretion, the Stockholders’ Agent and its Affiliates may not participate in any Third-Party Claim or any action related to such Third-Party Claim (y) reasonably consult including any discussions or negotiations in connection with the Indemnitee settlement, adjustment or compromise thereof). In the event that the Stockholders’ Agent has consented to the amount of any settlement or resolution by Castlight of any such claim (which consent shall not be unreasonably withheld, conditioned or delayed (it being understood and agreed that it shall be reasonable for the Stockholders’ Agent to withhold such consent if the Stockholders’ Agent believes in good faith that there is not any underlying basis for indemnification with respect to such settlement or resolution) and which consent shall be deemed to have been given unless the defense and Stockholders’ Agent shall have objected within 30 days after a written request therefor by Castlight), or if the Stockholders’ Agent shall have been determined to have unreasonably withheld, conditioned or delayed its consent to any such settlement thereofor resolution, and (z) consider in good faith neither the recommendations made Stockholders’ Agent nor any Converting Holder shall have any power or authority to object under this Article IX to the amount of any claim by or on behalf of any Indemnified Person against the Indemnitee Escrow Fund or Earnout for indemnity with respect theretoto such settlement or resolution. Otherwise no settlement or resolution by Castlight of any such claim for indemnification by or on behalf of an Indemnified Person shall be determinative of the existence of or amount of Indemnifiable Damages related to such matter.

Third Party Claims. (a) In the event If Parent receives notice of the assertion of any a third-party Claim claim (other than with respect to Tax Matters) that results or will result in a claim by or on behalf of an IndemniteeIndemnified Person pursuant to Section 7.2 (regardless of the limitations set forth in Section 7.3), Parent promptly will notify the Indemnitor will have Representative of such third-party claim (provided that failure to provide such prompt notice shall not release, waive or otherwise affect the rightIndemnifying Securityholders’ obligations with respect thereto except to the extent they are actually prejudiced as a result of such failure) and provide the Representative the opportunity to participate at the Representative’s own cost in any defense of such claim or, if it so chooses, to assume the defense thereof at its sole expense with counsel selected by the Representative, which counsel must be reasonably satisfactory to Parent. Prior to the Representative assuming the defense of any such claim, it shall first verify to Parent that the Indemnifying Securityholders shall be responsible for Losses relating to such claim for indemnification to the extent required by this Agreement and that it shall provide indemnification to the extent required by this Agreement, in each case subject to the provisions limitations set forth in this Section 11.05 ARTICLE 7. If the Representative elects to assume the defense of same at any such Indemnitor’s expenseclaim which relates to any Losses indemnified by the Indemnifying Securityholders hereunder, including the appointment and selection of counsel on behalf it shall within ten Business Days of the Indemnitee Indemnified Person’s written notice of the assertion of such claim (or sooner, if the nature of the claim so long requires) notify the Indemnified Person of its intent to do so; provided, that the Representative must conduct the defense of such claim actively and diligently thereafter in order to preserve its rights in this regard. If the Representative elects not to assume the defense of any such claim which relates to any Losses indemnified against hereunder, fails to notify the Indemnified Person of its election as herein provided or contests its obligation to indemnify the Indemnified Person for such counsel is reasonably acceptable Losses under and in accordance with this Agreement, Parent may assume the defense of such claim. Should the Representative so elect to assume the Indemnitee. Subject to Section 11.05(d)defense of such claim, the Indemnitor will Indemnifying Securityholders shall not be liable to any Indemnified Persons for any legal expenses subsequently incurred by the Indemnified Persons in connection with the defense thereof. If the Representative assumes such defense, Parent shall have the right to settle or compromise or take any corrective or remediation action with respect participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Representative, it being understood that the Representative shall control such defense; provided, however, that such Indemnified Person shall be entitled to participate in any such Claim defense with separate counsel at the expense of the Indemnifying Securityholders if (i) so requested by the Representative to participate or (ii) in the reasonable opinion of counsel to the Indemnified Person, a conflict or potential conflict exists between the Indemnified Person and the Representative that would make such separate representation advisable; and provided, further, that the Indemnifying Securityholders shall not be required to pay for more than one such counsel for all appropriate proceedingsIndemnified Persons in connection with any third-party claim. The reasonable expenses of the Representative incurred in defending or participating in any such third-party claim shall be reimbursed, when and as incurred, from the Representative Fund or from funds otherwise distributable to the Indemnifying Securityholders from the Escrow Fund. The parties hereto agree to provide, and to cause their respective Affiliates to provide, reasonable access to the Indemnitor shall use commercially reasonable efforts other to diligently prosecute such proceedings to a final conclusion documents and information as may be reasonably requested in connection with the defense, negotiation or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense settlement of any such third-party Claimclaim. Such cooperation shall include the retention and (upon such party’s request) the provision to the other party of records and information that are reasonably relevant to such claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in Representative assumes the defense of a third-party claim, no Indemnified Person shall admit any liability with respect to, or settle, compromise or discharge, such Claim and third-party claim without the Representative’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If the Representative assumes the defense of a third-party claim, the Representative shall not agree to engage separate counsel any settlement, compromise or discharge thereof without the prior consent of its choice for Parent (such purposeconsent not to be unreasonably withheld, conditioned or delayed); provided thatthat if (A) the Representative recommends any settlement, notwithstanding compromise or discharge that by its terms (x) obligates the foregoing, the Indemnitor shall Indemnifying Securityholders to pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) full amount of the Indemnitee if (i) the Indemnitor consents liability in writing to paying connection with such costs and expensesclaim, (iiy) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) releases the named parties Indemnified Person completely in connection with such claim and (z) does not impose an equitable remedy that materially limits the business of the Indemnified Person following such settlement, compromise or discharge and (B) Parent does not consent to such settlement, compromise or discharge, then the Indemnifying Securityholders shall in no event be responsible for Losses with respect to such third-party Claim include both the Indemnitee and the Indemnitor and claim in excess of (A1) the Indemnitee shall money damages that would have reasonably concluded that there are or may be defenses available been paid to settle the third-party claim pursuant to such Indemnitee that are different from proposed settlement, compromise or additional to those available to the Indemnitordischarge plus (2) any other Losses (e.g., or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee out-of-pocket costs and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemniteeexpenses, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, thatbut excluding, for the avoidance of doubt, such Claim any and the prosecution and negotiation thereof shall be controlled all Losses that would have been encompassed by the Indemnitor subject settlement, compromise or discharge recommended by the Indemnifying Party), to the other terms of this Section 11.05extent otherwise indemnifiable hereunder, incurred by the Indemnified Person through the date such settlement, compromise or discharge is first presented to Parent. Notwithstanding If the foregoingRepresentative fails to defend or if, after commencing or undertaking any such defense, the Indemnitee will Representative fails to prosecute or withdraws from such defense, the Indemnified Person shall have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume undertake the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith at the recommendations made by Indemnifying Securityholders’ expense out of funds otherwise distributable to the Indemnitee with respect theretoIndemnifying Securityholders from the Escrow Fund.

Third Party Claims. Promptly after the assertion by any Person of any Third Party Claim (aa “Third Party Proceeding”) In against any Person entitled to indemnification under this Acquisition Agreement (the event “Indemnitee”) that results or may result in the incurrence by such Indemnitee of any Claim or Damages for which such Indemnitee would be entitled to indemnification pursuant to this Acquisition Agreement, such Indemnitee will promptly notify the Party from whom such indemnification is or may be sought (the “Indemnitor”) of such Third Party Proceeding. Such notice will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding, the amount claimed by the Person, or if such amount is not then determinable, a reasonable estimate of the assertion likely amount of the Third Party Claim. The failure to promptly provide such notice will not relieve the Indemnitor of any third-party Claim by an obligation to indemnify the Indemnitee, except to the extent such failure prejudices the Indemnitor. Thereupon, the Indemnitor will have the right, subject upon written notice (the “Defence Notice”) to the provisions set forth in this Section 11.05 to assume Indemnitee within 30 days after receipt by the defense Indemnitor of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf notice of the Indemnitee Third Party Proceeding (or sooner if such Third Party Proceeding so long as such counsel is reasonably acceptable requires) to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitledconduct, at its own cost and expense, to participate with the defence against the Third Party Proceeding in its own name or, if necessary, in the name of the Indemnitee. The Defence Notice will specify the counsel the Indemnitor in the defense of any will appoint to defend such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05Third Party Proceeding. Notwithstanding the foregoing, the Any Indemnitee will have the right to defend employ separate counsel in any such third-party Claim until such time as Third Party Proceeding and/or to participate in the Indemnitor agrees to assume defence thereof, but the defense fees and expenses of such Claim, and counsel will not be included as part of any costs or expenses Losses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject unless (i) the Indemnitor failed to indemnification in accordance with and subject give the Defence Notice, (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the terms Indemnitor, to the effect that the interests of this Article XI. If the Indemnitee and the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith Third Party Proceeding are sufficiently adverse to prohibit the recommendations made representation by the Indemnitee same counsel of both Parties under applicable ethical rules, or (iii) the employment of such counsel at the expense of the Indemnitor has been specifically authorized by the Indemnitor. The Party or Parties conducting the defence of any Third Party Proceeding will keep the other Party apprised of all significant developments and will not enter into any settlement, compromise or consent to judgment with respect theretoto such Third Party Proceeding unless the Indemnitor and the Indemnitee consent, which consent will not be unreasonably withheld.

Third Party Claims. (ai) In Except as otherwise provided in this Agreement, the event following procedures will be applicable with respect to indemnification for Third Party Claims. Promptly after receipt by the Indemnitee of a notice of the commencement of any action or the assertion of any third-Claim, liability or obligation by a third party Claim (whether by an legal process or otherwise), against which Claim, liability, or obligation the Indemnitor is, or may be, required under this Agreement to indemnify such Indemnitee, the Indemnitee will, if a Claim thereon is to be, or may be, made against the Indemnitor, provide the Notice of Claim and give the Indemnitor a copy, to the extent then available, of such Claim, process, and all legal pleadings; provided, however, the failure to give such notice will not constitute a waiver or release of the Indemnitor, but the obligation of the Indemnitor will have the right, subject be reduced to the provisions set forth in this Section 11.05 to assume the defense extent of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to any actual monetary prejudice resulting from the Indemnitee’s intentional delay or failure to give any such notice as determined by a court of competent jurisdiction. Subject to Section 11.05(d), the The Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to (A) participate with the Indemnitor in the defense of any such Claim and to engage separate action with counsel of its choice for such purpose; provided that, notwithstanding reputable standing that is reasonably acceptable to the foregoing, Indemnitee and/or (B) assume the Indemnitor shall pay the reasonable costs and expenses defense of such defense action, at its election, unless (including reasonable attorneys’ fees and expenses1) such action is reasonably likely to result in injunctions or other equitable remedies in respect of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expensesor its business, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii2) the named parties to any such third-party Claim action (including any impleaded parties) include both the Indemnitee and the Indemnitor Indemnitor, and (A) the Indemnitee shall have reasonably concluded has been advised by legal counsel that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards is a conflict of professional conduct to have common counsel for interest between the Indemnitee and the Indemnitor due to actual or potential differing interests between in the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance conduct of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Third Party Claim, (3) such action is reasonably likely to result in criminal proceedings, injunctions, or other equitable remedies, (4) such action is reasonably likely have a material and any costs adverse effect on the business or expenses incurred by financial condition of the Indemnitee in connection therewith will be Losses hereunder after the Closing Date (including any material and subject to indemnification in accordance with and subject to adverse effect on the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05Tax liabilities, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect thereto.50

Third Party Claims. (a) In the event the Purchaser becomes aware of the assertion of any a third-party Claim by an Indemniteeclaim that the Purchaser reasonably expects may result in a demand against the Indemnity Fund (a "Third Party Claim"), the Indemnitor will have the right, subject Purchaser shall give written notice to the provisions Vendor Representative within ten (10) days of the Purchaser becoming aware of any such Third Party Claim; the notice shall set forth in this such material information with respect thereto as is then reasonably available to the Purchaser; provided, however, that such written notice shall be effective only if delivered to the Vendor Representative before the expiration, pursuant to Section 11.05 17 hereof, of the representations, warranties, covenants and agreements upon which such Third Party Claim(s) are based. In case any such liability is asserted against the Purchaser, and the Purchaser notifies the Vendor Representative thereof, the Vendor Representative will be entitled, if it so elects by written notice delivered to the Purchaser within ten (10) days after receiving the Purchaser's notice, to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of defence thereof with counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable satisfactory to the IndemniteePurchaser. Subject to Section 11.05(d)Notwithstanding the foregoing, (i) the Indemnitor will Purchaser shall also have the right to settle or compromise or take any corrective or remediation action with respect to employ its own counsel in any such Claim by all appropriate proceedingscase, and but the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs fees and expenses of such defense (including reasonable attorneys’ fees and expenses) counsel shall be at the expense of the Indemnitee if (i) Purchaser unless the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with Purchaser shall reasonably determine that there is a conflict of interest, (iii) interest between the named parties Purchaser and the Indemnifying Parties with respect to such third-party Third Party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that or there are or may be defenses legal defences available to such Indemnitee that the Indemnifying Parties which are different from or additional to those available to the IndemnitorPurchaser or a difference of position or potential difference of position exists between the Indemnifying Parties and the Purchaser that would make such separate representation advisable in the reasonable opinion of counsel to the Purchaser, or in which case the reasonable fees and expenses of such counsel will be borne by the Indemnifying Parties unless such representation is advisable only due to activities of the Purchaser since the Effective Date, and (Bii) the Indemnitee’s outside counsel Purchaser shall not have reasonably concluded it would be inappropriate under applicable standards any obligation to give any notice of professional conduct any assertion of liability by a third party unless such assertion is in writing. With respect to have common counsel for any assertion of liability by a third party that results in a Third Party Claim, the Indemnitee and parties hereto shall make available to each other all relevant information in their possession material to any such assertion. In the Indemnitor due to actual or potential differing interests between event that the Indemnitor and such IndemniteeVendor Representative, or within ten (iv10) days after receipt of the Indemnitor aforesaid notice of a Third Party Claim, fails to assume the defence of the Purchaser against such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoingThird Party Claim, the Indemnitee will Purchaser shall have the right to defend any such third-party Claim until such time as undertake the Indemnitor agrees to assume the defense defence, compromise, or settlement of such Claimaction on behalf of and for the account, expenses and risk of the Indemnifying Parties. Notwithstanding anything in this 19.9 to the contrary, the Purchaser shall have the right to participate, at its own cost and expense, in such defence, compromise, or settlement and, if there is a reasonable probability that a settlement, compromise or consent to entry of judgment Third Party Claim may materially and adversely affect the Purchaser, the Indemnifying Parties shall not, without the Purchaser's written consent (which consent shall not be unreasonably withheld), settle or compromise any costs Third Party Claim or expenses incurred consent to entry of any judgment in respect thereof unless such settlement, compromise, or consent includes as an unconditional term thereof the giving by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject claimant or the plaintiff to the terms of this Article XI. If the Indemnitor has assumed the defense of Purchaser a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status release from all liability in respect of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoThird Party Claim.

Third Party Claims. Except as otherwise provided in this Agreement, the following procedures shall be applicable with respect to indemnification pursuant to this Article IX relating to or arising out of claims or actions by Governmental Authorities or other third parties. Promptly after receipt by the party seeking indemnification hereunder (ahereinafter the “indemnitee”) In of notice of the event commencement of any action or the assertion of any third-claim, liability or obligation by a Governmental Authority or a third party Claim (whether by an Indemniteelegal process or otherwise), against which claim, liability or obligation a party under this Article IX (hereinafter the “indemnitor”) that is, or may be, required under this Agreement to indemnify such indemnitee, the Indemnitor will have indemnitee will, if a claim thereon is to be, or may be, made against the rightindemnitor pursuant to this Article IX, subject to promptly notify the provisions set forth indemnitor in this Section 11.05 to assume writing of the defense of same at such Indemnitor’s expensecommencement or assertion thereof, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable reasonable details with respect to the Indemniteefactual and legal basis for such claim; provided, that the failure of any indemnitee to give prompt notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the indemnitor demonstrates actual material prejudice caused by such failure. Subject to Section 11.05(d)The indemnitor shall have, the Indemnitor will have in all instances, the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate action with counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor reputable standing. The indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claimaction, and any costs unless such action (a) may result in orders or expenses incurred by mandatory injunctions materially impacting the Indemnitee indemnitee’s on-going operation of the business, (b) may result in connection therewith will be Losses hereunder and subject to indemnification in accordance liabilities which, taken with and subject to the terms of other then-existing claims under this Article XIIX, would not be fully indemnified hereunder or (c) may result in potential criminal liability. The indemnitor shall have twenty (20) days, after receipt of notice of such claim, process, legal proceeding and other written notice, to assume the defense thereof. If the Indemnitor has assumed indemnitor does assume such defense, it will, within such twenty (20) days, so notify the indemnitee. If the indemnitor does not assume such defense of a third-party Claim and so notifies the indemnitee, or if the indemnitor is barred from assuming such defense pursuant to this Section 11.059.5, it will (x) keep then the Indemnitee advised indemnitee shall have the right to assume such defense, subject to the participation of the status of such third-party Claim indemnitor, as provided in this Section 9.5, and the indemnitee’s fees and expenses (including reasonable fees and expenses of counsel) in connection with such defense thereof on will be borne by the indemnitor. In any case, the indemnitor and indemnitee shall cooperate and assist each other in such defense, and shall make available to the other all records, documents, employees and information (written or otherwise) relevant to such defense. If the indemnitee shall be required by judgment or a reasonably current basissettlement agreement to pay any amount or perform any action in respect of any obligation or liability pursuant to which the indemnitee may make a claim against the Escrow Amount, (y) reasonably consult the indemnitee shall make a claim with the Indemnitee Escrow Agent for the Losses incurred in performing such action (which shall include all reasonable legal fees and expenses related thereto) to be withdrawn from the Escrow Amount in accordance with respect the terms and provisions of the Escrow Agreement, subject to the defense and settlement thereofthis Article IX. Prior to paying any claims against which an indemnitor is, and (z) consider in good faith the recommendations made by the Indemnitee with respect thereto.or may be, obligated under this Agreement to indemnify an

Third Party Claims. (a) In Except as otherwise provided in this Agreement, the event following procedures shall be applicable with respect to indemnification for third party Claims. Promptly after receipt by the party seeking indemnification hereunder (hereinafter referred to as the “Indemnitee”) of notice of the commencement of any action or the assertion of any third-Claim, liability or obligation by a third party Claim (whether by an legal process or otherwise), against which Claim, liability or obligation another party to this Agreement (hereinafter the “Indemnitor”) is, or may be, required under this Agreement to indemnify such Indemnitee, the Indemnitee shall, if a claim thereon is to be, or may be, made against the Indemnitor, immediately notify the Indemnitor will in writing of the commencement or assertion thereof and give the Indemnitor a copy of such Claim or process and all legal pleadings (the “Indemnitee Notice”). The Indemnitee’s failure to give timely notice as required by this Section 9.05(a) shall not serve to eliminate or limit the Indemnitor’s obligation to indemnify the Indemnitee unless such failure prejudices the rights of the Indemnitor, and then only to the extent of such prejudice. Moreover, the Indemnitee shall have the right, subject right to take any actions or steps reasonably necessary to avoid the occurrence of any prejudice to the provisions set forth in this Section 11.05 rights of the Indemnitee. The Indemnitor shall have the right to assume the defense of same at such Indemnitor’s expense, including the appointment and selection action with counsel of counsel on behalf reputable standing unless with respect to such action (A) injunctive or equitable remedies have been sought therein in respect of the Indemnitee so long as or its business or (B) such action is for an alleged amount of less than Five Thousand Dollars ($5,000); provided, that the Indemnitee and counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will Indemnitee shall have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes participate in the defense of any and all Claims pursuant to the provisions of Section 9.05(b) hereof. The Indemnitor and the Indemnitee shall reasonably cooperate in the defense of such third-party ClaimClaims. If the Indemnitee shall be required by judgment or a settlement agreement to pay any amount in respect of any obligation or liability against which the Indemnitor has agreed to indemnify the Indemnitee under this Agreement, the Indemnitor shall immediately pay such amount to the Indemnitee will be entitledin order to enable the Indemnitee to make such payment, and otherwise shall promptly reimburse the Indemnitee in an amount equal to the amount of such payment, in either case, plus all reasonable out-of-pocket expenses (including legal fees and expenses) incurred by such Indemnitee at its own cost and expensethe specific request of the Indemnitor, as provided above, or as otherwise authorized by Section 9.05(b) hereof, in connection with such obligation or liability subject to participate with the Indemnitor this Article IX. No Indemnitor, in the defense of any such Claim and Claim, shall, except with the consent of the Indemnitee, consent to engage separate counsel entry of its choice for any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such purpose; provided that, notwithstanding Indemnitee of a release from all liability with respect to such Claim. In the foregoing, event that the Indemnitor shall pay does not accept the reasonable costs and expenses defense of any matter for which it is entitled to assume such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents as provided in writing to paying such costs and expensesthis Section 9.05(a), (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available the full right to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, defend against any such Claim and the prosecution and negotiation thereof shall be controlled by entitled to settle or agree to pay in full such Claim in its sole discretion. With respect to any matter as to which the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees is not entitled to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject pursuant to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.059.05(a), it will (x) keep the Indemnitee advised shall not enter into any settlement for which an indemnification Claim will be made hereunder without the approval of the status of such third-party Claim and the defense thereof on a reasonably current basisIndemnitor, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretowhich shall not be unreasonably withheld.

Third Party Claims. (a) In The Indemnified Party shall promptly notify ------------------ the event Indemnifying Parties of the assertion existence of any third-party Claim claim, demand or other matter involving liabilities to third parties to which the Indemnifying Parties' indemnification obligations could apply and shall give the Indemnifying Parties a reasonable opportunity to defend the same at their expense and with counsel of their own selection (who shall be approved by an Indemniteethe Indemnified Party, which approval shall not be withheld unreasonably); provided, however, that (i) the Indemnified Party shall at all times -------- also have the right to fully participate in the defense at its own expense, (ii) if, in the reasonable judgment of the Indemnified Party, based upon the written advice of counsel, a conflict of interest may exist between the Indemnified Party and any of the Indemnifying Parties, the Indemnitor will Indemnifying Parties shall not have the right to assume such defense on behalf of such Indemnified Party and (iii) the failure to so notify the Indemnifying Parties shall not relieve the Indemnifying Parties from any liabilities that they may have hereunder or otherwise, except to the extent that such failure so to notify the Indemnifying Parties materially prejudices the rights of the Indemnifying Parties. If the Indemnifying Parties shall, within a reasonable time after said notice, fail to defend, the Indemnified Party shall have the right, subject but not the obligation, to the provisions set forth in this Section 11.05 to assume undertake the defense of same of, and to compromise or settle the claim or other matter on behalf, for the account and at such Indemnitor’s expense, including the appointment risk and selection of counsel on behalf expense of the Indemnitee so long as such counsel is reasonably acceptable to the IndemniteeIndemnifying Parties. Subject to Section 11.05(d), the Indemnitor will have the right to settle or The Indemnifying Parties shall not compromise or take any corrective settle the claim or remediation action with respect to any such Claim by all appropriate proceedings, and other matter without the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion prior written consent of the IndemnitorIndemnified Parties. If the Indemnitor assumes claim is one that cannot by its nature be defended solely by the defense of any such third-party ClaimIndemnifying Parties, the Indemnitee will be entitled, at its own cost Indemnified Parties shall make available all information and expense, to participate with assistance that the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have Indemnifying Parties may reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely mannerrequest; provided, furtherhowever, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof that any associated expenses shall be controlled paid by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time -------- Indemnifying Parties as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoincurred.

Third Party Claims. (a) In the event Acquirer becomes aware of the assertion a claim by a third party (a “Third-Party Claim”) that Acquirer in good faith believes may result in a claim for Indemnifiable Damages by or on behalf of any third-party Claim by an IndemniteeIndemnified Person, the Indemnitor will Acquirer shall have the right, subject right in its sole discretion to the provisions set forth in this Section 11.05 to assume conduct the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any resolve such Third-Party Claim by all appropriate proceedings, (and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of incurred by Acquirer in connection with such defense defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and expensescourt or arbitration costs) of shall be included in the Indemnitee if (i) the Indemnitor consents in writing Indemnifiable Damages for which Acquirer shall be entitled to paying receive indemnification pursuant to a claim made hereunder, and such costs and expensesexpenses shall constitute Indemnifiable Damages subject to indemnification under Section 9.2 regardless of whether it is ultimately determined that such Third-Party Claim arose out of, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel resulted from or was in connection with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor matter subject to the other terms of this indemnity in accordance with Section 11.059.2). Notwithstanding the foregoing, the Indemnitee will The Sellers shall have the right to defend any such third-party Claim until such time as the Indemnitor agrees have their own counsel, at their sole expense, to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance consult with and subject to the terms of this Article XI. If the Indemnitor has assumed Acquirer’s counsel regarding the defense of a thirdThird Party Claim or settlement with respect to such Third Part Claim, and to receive copies of all pleadings, notices and communications with respect to such Third-party Party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status extent that receipt of such thirddocuments does not affect any privilege relating to any Indemnified Person, subject to execution by the Sellers of Acquirer’s (and, if required, such third party’s) standard non-party disclosure agreement to the extent that such materials contain confidential or propriety information. However, Acquirer shall have the right in its sole discretion to determine and conduct the defense of any Third-Party Claim and the defense thereof on a reasonably current basissettlement, adjustment or compromise of such Third-Party Claim. Unless otherwise consented to in writing in advance by Acquirer in its sole discretion, the Sellers and its Affiliates may not participate in any Third-Party Claim or any action related to such Third-Party Claim (y) reasonably consult including any discussions or negotiations in connection with the Indemnitee settlement, adjustment or compromise thereof). In the event that the Sellers have consented to the amount of any settlement or resolution by Acquirer of any such claim (which consent shall not be unreasonably withheld, conditioned or delayed and which consent shall be deemed to have been given unless the Sellers shall have objected within twenty (20) days after a written request therefor by Acquirer), or if the Sellers shall have been determined to have unreasonably withheld, conditioned or delayed its consent to the amount of any such settlement or resolution, the Sellers shall not have any power or authority to object under this Article IX to the amount of any claim by or on behalf of any Indemnified Person against the Escrow Fund for indemnity with respect to the defense and such settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoor resolution.

Third Party Claims. (a) In the event Acquirer becomes aware of a third party claim which Acquirer in good faith believes may result in a claim against the Escrow Fund by or on behalf of an Acquirer Indemnified Person, then Acquirer shall deliver a Claim Certificate to the Stockholders’ Agent and Xxxx Sparta (with a copy to the Escrow Agent) as promptly as practicable, but in any event no later than fifteen (15) Business Days after receiving notice thereof, which Claim Certificate shall specify in reasonable detail the nature and amount of the assertion claim and such other information as may be necessary to determine whether the claim may be subject to indemnification hereunder; provided, however, that no delay on the part of Acquirer or any third-party other Acquirer Indemnified Person in delivering a Claim by an Indemnitee, Certificate to the Indemnitor will have Stockholders’ Agent and Xxxx Sparta shall relieve the rightEffective Time Holders from any obligation Table of Contents hereunder unless (and then solely to the extent) the Effective Time Holders are thereby materially prejudiced, subject to the provisions applicable time periods for making a claim set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment 8.4(a) and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the IndemniteeSection 10.1(a). Subject to Section 11.05(d)8.9 below, in the event Acquirer delivers a Claim Certificate to each of the Stockholders’ Agent and Xxxx Sparta for a third-party claim, the Indemnitor will Stockholders’ Agent shall have the right to conduct the defense (at the sole expense of the Stockholders’ Agent and the Effective Time Holders) of and to settle or compromise or take any corrective or remediation action with respect to resolve any such claim by delivering written notice to Acquirer within thirty (30) Business Days following the later of delivery of the Claim Certificate and delivery of the Second Notice. In such case, any selection of counsel by all appropriate proceedingsthe Stockholders’ Agent, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses settlement of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expensesclaim, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms approval of this Section 11.05Acquirer, not to be unreasonably withheld conditioned or delayed. Notwithstanding the foregoing, the Indemnitee will Stockholders’ Agent shall not have the right to defend conduct the defense of any such claim under this Section 8.8 unless (i) the Stockholders’ Agent shall has given notice to Acquirer that the Effective Time Holders will severally, but not jointly, based on such Effective Time Holder’s Pro Rata Share, indemnify and hold harmless Acquirer from and against the entirety of all Indemnifiable Damages arising out of, resulting from or in connection with such third-party Claim until claim, (ii) the Stockholders’ Agent provides Acquirer with evidence reasonably satisfactory to Acquirer that the Stockholders’ Agent will have the financial resources to defend against such time third-party claim, (iii) the maximum of Indemnifiable Damages that may arise out of, result from or in connection with will not exceed the amount of the Escrow Fund as of such time, (iv) such third-party claim involves only money damages, does not seek an injunction or specific performance, and does not seek any other form of equitable relief that would be material to the Indemnitor agrees business of the Company, (v) such third-party claim will not, in the good faith judgment of Acquirer, adversely affect the continuing business or business relationships of any Acquirer Indemnified Party with any third-party, (vi) settlement of, or an adverse judgment with respect to, is not, in Acquirer’s good faith judgment, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of any Acquirer Indemnified Party, (vii) the Stockholders’ Agent conducts at all times the defense of such third-party claim actively and diligently and (viii) such third-party claim does not relate to any Intellectual Property. In such case, or if the Stockholders’ Agent does not elect to assume the defense of such Claimclaim within such thirty (30) Business Day period, Acquirer shall have the right to conduct the defense of and to settle or resolve any such claim (and the costs or and expenses incurred by the Indemnitee Acquirer in connection therewith will with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be Losses hereunder and subject to included in the Indemnifiable Damages for which Acquirer may seek indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05a claim made hereunder). The Stockholders’ Agent shall have the right to receive copies of all pleadings, it will (x) keep the Indemnitee advised of the status of such third-party Claim notices and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Acquirer Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense and of the third-party claim or settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee negotiations with respect thereto.to the third-party claim. However, except with the prior written consent of the Stockholders’ Agent, which consent shall not be unreasonably withheld, conditioned or delayed, no settlement or resolution by an Acquirer Indemnified Person of any claim that gives rise to a claim against the Escrow Fund by or on behalf of an Acquirer Indemnified Person shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. The Stockholders’ Agent will be deemed to have objected to such settlement or resolution if the Stockholders’ Agent does not respond within thirty (30) Business Days following receipt by both the Stockholders’ Agent and Xxxx Sparta of a written request from Acquirer for consent, in which case the Acquirer may re-deliver (with a copy to the Escrow Agent to the extent the Escrow Fund is still in place) to each of the Stockholders’ Agent and Xxxx Sparta such request together with a notice stating in bold, capitalized font at the top of such notice: “THIS NOTICE CONTAINS A SECOND NOTICE OF A WRITTEN REQUEST FOR CONSENT. IF THE STOCKHOLDERS’S AGENT DOES NOT OBJECT, BY WRITTEN NOTICE TO ACQUIRER, TO THE SETTLEMENT OR RESOLUTION OF THE CLAIM REFERRED TO IN THE ATTACHED REQUEST WITHIN [INSERT DATE THAT IS TEN (10) BUSINESS DAYS FOLLOWING RECEIPT BY BOTH THE Table of Contents

Third Party Claims. (a) In Except as otherwise provided in this Agreement, the event following procedures shall be applicable with respect to indemnification for third party Claims. Promptly after receipt by the party seeking indemnification hereunder (hereinafter referred to as the “Indemnitee”) of notice of the commencement of any action or the assertion of any third-Claim, liability or obligation by a third party Claim (whether by an legal process or otherwise), against which Claim, liability or obligation another party to this Agreement (hereinafter the “Indemnitor”) is, or may be, required under this Agreement to indemnify such Indemnitee, the Indemnitee shall, if a claim thereon is to be, or may be, made against the Indemnitor, immediately notify the Indemnitor will in writing of the commencement or assertion thereof and give the Indemnitor a copy of such Claim or process and all legal pleadings. The Indemnitee’s failure to give timely notice as required by this Section 9.5(a) shall not serve to eliminate or limit the Indemnitor’s obligation to indemnify the Indemnitee unless such failure prejudices the rights of the Indemnitor, and then only to the extent of such prejudice. Moreover, the Indemnitee shall have the right, subject right to take any actions or steps reasonably necessary to avoid the occurrence of any prejudice to the provisions set forth in this Section 11.05 rights of the Indemnitee. The Indemnitor shall have the right to assume the defense of same at such Indemnitor’s expense, including the appointment and selection action with counsel of counsel on behalf reputable standing unless with respect to such action (A) injunctive or equitable remedies have been sought therein in respect of the Indemnitee so long as or its business or (B) such action is for an alleged amount of less than Five Thousand Dollars ($5,000); provided, that the Indemnitee and counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will Indemnitee shall have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes participate in the defense of any and all Claims pursuant to the provisions of Section 9.5(b) hereof. The Indemnitor and the Indemnitee shall reasonably cooperate in the defense of such third-party ClaimClaims. If the Indemnitee shall be required by judgment or a settlement agreement to pay any amount in respect of any obligation or liability against which the Indemnitor has agreed to indemnify the Indemnitee under this Agreement, the Indemnitor shall immediately pay such amount to the Indemnitee will be entitledin order to enable the Indemnitee to make such payment, and otherwise shall promptly reimburse the Indemnitee in an amount equal to the amount of such payment, in either case, plus all reasonable out-of-pocket expenses (including legal fees and expenses) incurred by such Indemnitee at its own cost and expensethe specific request of the Indemnitor, as provided above, or as otherwise authorized by Section 9.5(b) hereof, in connection with such obligation or liability subject to participate with the Indemnitor this Section IX. No Indemnitor, in the defense of any such Claim and Claim, shall, except with the consent of the Indemnitee, consent to engage separate counsel entry of its choice for any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such purpose; provided that, notwithstanding Indemnitee of a release from all liability with respect to such Claim. In the foregoing, event that the Indemnitor shall pay does not accept the reasonable costs and expenses defense of any matter for which it is entitled to assume such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents as provided in writing to paying such costs and expensesthis Section 9.5(a), (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available the full right to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, defend against any such Claim and the prosecution and negotiation thereof shall be controlled by entitled to settle or agree to pay in full such Claim in its sole discretion. With respect to any matter as to which the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees is not entitled to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject pursuant to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.059.5(a), it will (x) keep the Indemnitee advised shall not enter into any settlement for which an indemnification Claim will be made hereunder without the approval of the status of such third-party Claim and the defense thereof on a reasonably current basisIndemnitor, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretowhich shall not be unreasonably withheld.

Third Party Claims. In the event that any claim or demand, ------------------ or other circumstance or state of facts which could give rise to any claim or demand, for which the Company may be liable to DC hereunder is asserted against or sought to be collected by a third party (an "Asserted Liability"), DC shall ------------------ promptly notify the Company in writing of such Asserted Liability, specifying the nature of such Asserted Liability and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand) (the "Claim Notice"); provided, ------------ -------- however, that no delay on the part of DC in giving any such Claim Notice shall relieve the Company of any indemnification obligation hereunder unless the Company is prejudiced by such delay (and then solely to the extent of such delay). The Company shall have 30 days (or less if the nature of the Asserted Liability requires) from its receipt of the Claim Notice (the "Notice Period") ------------- to notify DC whether or not the Company desires, at the Company's sole cost and expense and by counsel of its own choosing, which shall be reasonably satisfactory to DC, to defend against such Asserted Liability. If the Company undertakes to defend against such Asserted Liability, the Company shall control the investigation, defense and settlement thereof; provided, however, that -------- without the prior written consent of DC, which consent shall not be unreasonably withheld, (1) the Company shall not permit to exist any Lien upon any of the assets or properties of DC and (2) if any Asserted Liability is settled by the Company, (a) In no liability shall be imposed on DC by reason of such Asserted Liability or the event settlement thereof, and (b) the Company shall not consent to any settlement which (A) does not contain an unconditional release of the assertion of any third-party Claim by an IndemniteeCompany, the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment DC and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action its affiliates and (B) with respect to any non-monetary provision of such Claim by all appropriate proceedingssettlement would be reasonably likely, and the Indemnitor shall use commercially in DC's reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expensejudgment, to participate with have an adverse effect on the Indemnitor in the defense business operations, assets, properties or prospects of DC or any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are subsidiaries or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05affiliates. Notwithstanding the foregoing, the Indemnitee will DC shall have the right to pay or settle any Asserted Liability which the Company shall have undertaken to defend so long as DC shall also waive any such third-party Claim until such time as the Indemnitor agrees right to assume the defense of such Claim, and any costs or expenses incurred indemnification therefor by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XICompany. If the Indemnitor has assumed the defense of a third-party Claim pursuant Company undertakes to this Section 11.05defend against such Asserted Liability, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult DC shall cooperate fully with the Indemnitee with respect to Company and its counsel in the investigation, defense and settlement thereof. If DC desires to participate in any such defense it may do so at its sole cost and expense. If the Company does not undertake within the Notice Period to defend against such Asserted Liability, then the Company shall have the right to participate in any such defense at their sole cost and (z) consider in good faith expense, but DC shall control the recommendations made by investigation, defense and settlement thereof. DC and the Indemnitee with respect theretoCompany agree to make available to each other, their counsel and other representatives, all information and documents available to them which relate to such claim or demand. DC and the Company shall render to each other such assistance and cooperation as may reasonably be required to ensure the proper and adequate defense of such claim or demand.

Third Party Claims. (a) In the event that Parent becomes aware of a third party claim (other than a claim that is the assertion subject of any thirdan Agreed-party Upon Loss) (each, a “Third Party Claim”) which Parent reasonably believes would result in a demand for indemnification pursuant to this ARTICLE VII, Parent shall timely notify the Stockholders’ Representative of such claim (the “Third Party Claim by an IndemniteeNotice”), and the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel Stockholders’ Representative shall (A) be entitled on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitledIndemnifying Parties, at its own cost sole option and expense, to participate with the Indemnitor in in, but not to determine or conduct, the defense of such Third Party Claim, and (B) have the right to receive copies of all pleadings, notices and material communications with respect to the Third-Party Claim to the extent that receipt of such documents does not affect any privilege or confidentiality obligations relating to any Parent Indemnified Party. The failure to so notify the Stockholders’ Representative shall not relieve the Indemnifying Parties 72 of any Liability, except to the extent the Stockholders’ Representative demonstrates that the defense of such Third Party Claim is actually and materially prejudiced thereby or if such notice shall have occurred after survival periods set forth in Section 7.1 with respect to such claims. Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any Third Party Claim; provided, however, that except with the consent of the Stockholders’ Representative in writing (not to be unreasonably withheld or delayed; provided, that the parties agree that the Stockholders’ Representative’s failure to provide consent based on the amount of Losses, or whether the Indemnifying Parties have an obligation to indemnify Parent or other Parent Indemnified Parties pursuant to this Agreement, shall not, in and of itself, be considered unreasonable), no settlement of any such Third Party Claim and shall be determinative of the amount of Losses relating to engage separate counsel such matter or whether the Parent Indemnified Parties are entitled to indemnification hereunder with respect thereto. In the event that the Stockholders’ Representative has consented in writing to any such settlement, the Indemnifying Parties shall have no power or authority to object under any provision of its choice for this ARTICLE VII to the amount of any claim by Parent against the Escrow Fund with respect to such purposesettlement. Neither the Stockholders’ Representative nor any Indemnifying Party may settle or compromise any such Third Party Claim without the prior written consent of the relevant Parent Indemnified Party(ies) (which consent shall not be unreasonably withheld or delayed); provided that, notwithstanding the foregoing, the Indemnitor any such Parent Indemnified Party shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if be entitled to withhold its consent, in its sole discretion, to any proposed settlement or compromise that (i) does not include a provision whereby the Indemnitor consents plaintiff or claimant in writing to paying the matter releases such costs and expensesParent Indemnified Party from all Liabilities with respect thereto, (ii) would obligate such Parent Indemnified Party to pay an amount related thereto in excess of the use of counsel chosen by the Indemnitor amount then available for indemnification pursuant to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, this ARTICLE VII or (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have would reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct expected to have common counsel for an adverse impact on the Indemnitee and the Indemnitor due to actual reputation (business or potential differing interests between the Indemnitor and such Indemnitee, otherwise) of Parent or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance any of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoits Affiliates.

Third Party Claims. (a) In the event Acquiror becomes aware of the assertion of any a third-party Claim claim which Acquiror in good faith believes may result in a claim against the Holdback Fund by or on behalf of an IndemniteeIndemnified Person, the Indemnitor will Acquiror shall have the right, subject right in its sole discretion to the provisions set forth in this Section 11.05 to assume conduct the defense of same at and to settle or resolve any such Indemnitor’s expenseclaim. It is hereby clarified that the costs and expenses incurred by Acquiror in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable Indemnifiable Damages for which Acquiror may seek indemnification pursuant to a claim made hereunder solely to the Indemniteeextent Acquiror or an Indemnified Person is entitled to indemnification pursuant to ARTICLE 8. Subject to Section 11.05(d), the Indemnitor will The Stockholders’ Agent shall have the right to settle or compromise or take any corrective or remediation action receive copies of all pleadings, notices and communications with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, claim to the Indemnitee will extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its own cost and expense, to participate with the Indemnitor in the in, but not to determine or conduct, any defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are claim or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee settlement negotiations with respect to the defense third-party claim. However, except with the consent of the Stockholders’ Agent, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Stockholders’ Agent shall have objected within 15 days after a written request for such consent by Acquiror or if the Stockholders’ Agent shall have been determined to have unreasonably withheld, conditioned or delayed its consent to any such settlement thereofor resolution, and (z) consider in good faith no settlement or resolution by Acquiror of any claim that gives rise to a claim against the recommendations made Holdback Fund by or on behalf of an Indemnified Person shall be determinative of the Indemnitee existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Stockholders’ Agent has consented to any such settlement or resolution, neither the Stockholders’ Agent nor any Converting Holder or Management Plan Participant shall have any power or authority to object under Section 8.5 or any other provision of this ARTICLE 8 to the amount of any claim by or on behalf of any Indemnified Person against the Holdback Fund for indemnity with respect theretoto such settlement or resolution.

Third Party Claims. (a) In the event of the assertion of any With respect to each third-party Claim by an Indemniteefor which a member of the NINA Group or the TEPCO Group seeks indemnification under this Article X (collectively, “Third-Party Claims”), the Indemnitee shall give written notice to the Indemnitor will of the Third-Party Claim within thirty (30) days of the first receipt by the Indemnitee of notice of such Third-Party Claim; provided, that failure to give such notice promptly to the Indemnitor shall not relieve or limit the obligations of the Indemnitor except to the extent that the Indemnitor shall have been materially prejudiced by such failure to give such notice, in which case the Indemnitor shall be relieved of its obligations under this Article X to the extent of such material prejudice. The Indemnitor shall have the right, subject to the provisions set forth in this Section 11.05 right to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Third-Party Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense; provided, to participate with that counsel for the Indemnitor conducting the defense of such Third-Party Claim shall be subject to the approval of Indemnitee (whose approval shall not be unreasonably withheld). If the Indemnitor chooses to defend or prosecute a Third-Party Claim, the Indemnitee shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnitor and at the cost of the Indemnitor, (i) the retention, and the provision to the Indemnitor, of records and information reasonably relevant to such Third-Party Claim, and (ii) making directors, officers, managers, executives, employees, consultants and agents of the Indemnitee and its Affiliates available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. The Indemnitee may participate in, but not control, such Claim and to engage separate counsel of defense at its choice for such purposeown expense; provided thatprovided, notwithstanding the foregoing, that the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee expense if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are is a substantial probability of a conflict between the positions of the Indemnitor and the Indemnitee in conducting the defense of any such Third-Party Claim or that there may be legal defenses available to such the Indemnitee that are different from or additional to those available to the Indemnitor. No Indemnitee shall settle any Third-Party Claim without the consent of the Indemnitor, which consent shall not be unreasonably withheld or (B) delayed. If the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct Indemnitor wishes to have common counsel for enter into a settlement with respect to a Third-Party Claim, the Indemnitee and the Indemnitor due to actual shall cooperate in such settlement; provided, that such settlement (x) does not provide for injunctive relief or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to similar equitable remedies against the Indemnitee, in each caseand (y) includes, in a timely manner; providedas an unconditional term thereof, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled giving by the Indemnitor subject third party to the other terms Indemnitee of this Section 11.05a release from all liability in respect of such Third-Party Claim. Notwithstanding If the foregoingIndemnitor elects not to control or conduct the defense or prosecution of a Third-Party Claim, the Indemnitee will Indemnitor nevertheless shall have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume participate in the defense or prosecution of any Third-Party Claim and, at its own expense, to employ counsel of its own choosing for such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretopurpose.

Third Party Claims. (a) In the event an Indemnified Person becomes aware of a third party claim (a “Third Party Claim”) which such Indemnified Person believes in good faith may result in a demand for indemnification, the Indemnified Person shall promptly notify the Indemnifying Person of the assertion Third Party Claim in writing. No delay or failure in providing such notice shall affect an Indemnified Persons’ rights hereunder, unless (and then only to the extent that) the Indemnifying Person is materially prejudiced thereby. The Indemnifying Person shall be entitled to participate in the defense of any third-party the Third Party Claim and, if it so chooses, to assume the defense thereof at its own expense with counsel selected by an Indemniteesuch Indemnifying Person and reasonably acceptable to the Indemnified Person, provided, that, the Indemnitor will have the right, subject Indemnifying Person gives written notice to the provisions set forth Indemnified Person of its election to participate in this Section 11.05 or to assume the defense of same at the Third Party Claim within ten (10) Business Days after the Indemnifying Person receives the written notice of such Indemnitor’s expenseclaim from the Indemnified Person; provided, including however, that the appointment and selection Indemnifying Person shall not be entitled to assume the defense of counsel on behalf any Third Party Claim in which, either directly or indirectly, (i) criminal liability is involved, (ii) an injunction or equitable relief is being sought against the Indemnified Person that would be material to the operation of its business, or (iii) the potential Damages would reasonably be expected to exceed the amount of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(dIndemnification Escrow (or any portion thereof that remains in escrow), provided that the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor Indemnified Person assumes the defense of such Third Party Claim and defends such Third Party Claim in a manner that is substantially similar in all material respects to the manner in which it would have defended such claim if it were not entitled to the benefit of this Section 9 (with the reasonable expenses, and any such third-party settlement entered into in accordance with this Section 9.6, constituting Damages hereunder to the extent the Indemnified Person is entitled to recover therefore under the terms hereof). If the Indemnifying Person assumes the defense of a Third Party Claim, the Indemnitee will be entitled, at its own cost and expense, Indemnifying Person may not consent to participate with the Indemnitor in the defense entry of any such judgment or enter into any settlement with respect to the Third Party Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding without the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) prior written consent of the Indemnitee Indemnified Person (not to be unreasonably withheld, conditioned or delayed) if (i) such judgment or settlement does not include as an unconditional term thereof the Indemnitor consents giving by each claimant or plaintiff to the Indemnified Person of a full release from all liability in writing respect to paying such costs and expensesThird Party Claim, (ii) such judgment or settlement would result in the use finding or admission of counsel chosen any violation of any Legal Requirement by the Indemnitor to represent Indemnified Person or the Indemnitee would, based on the good faith advice rights of such Indemnitee’s outside counsel, present such counsel with a conflict of interestany person, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, sole relief provided is anything other than monetary damages or (iv) as a result of such judgment or settlement, injunctive or other equitable relief would be imposed against the Indemnitor fails Indemnified Person or such judgment or settlement would reasonably be expected to assume such defense interfere with or engage counsel materially and adversely affect the business, operations or assets of the Indemnified Person. The Indemnified Person will cooperate, at the expense of the Indemnifying Person, as the Indemnifying Person may reasonably satisfactory to the Indemniteerequest, in each caseinvestigating, in a timely manner; provideddefending and, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms set forth above, settling such Third Party Claim. If the Indemnifying Person elects not to assume the defense of this Section 11.05. Notwithstanding the foregoinga Third Party Claim, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees is not permitted to assume the defense of such Claim, and any costs Third Party Claim or expenses incurred by fails to notify the Indemnitee Indemnified Person of its election to participate in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed or assume the defense of a third-party such Third Party Claim as herein provided, the Indemnified Person may pay, compromise, settle or defend such Third Party Claim at the sole cost and expense of the Indemnifying Person if the Indemnifying Person is determined to be liable to the Indemnified Person hereunder. Notwithstanding the foregoing, if the Indemnifying Person is contesting any claims in good faith, or would, but for its inability to assume the defense of such claims pursuant to this Section 11.059.6, it will (x) keep be contesting the Indemnitee advised claims in good faith, then the Indemnified Person shall not pay or settle any such claims without the prior written consent of the status of such third-party Claim and the defense thereof on a reasonably current basisIndemnifying Person, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereofwhich shall not be unreasonably withheld, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoconditioned or delayed.

Third Party Claims. (a) In the event Purchaser becomes aware of the assertion of any a third-party Claim claim (“Third-Party Claim”) which Purchaser believes may result in a claim for Indemnifiable Damages pursuant to this Article VIII by or on behalf of an IndemniteeIndemnified Person, Purchaser shall promptly notify the Sellers’ Agent of such Third-Party Claim. Other than as provided below, the Indemnitor will Sellers’ Agent shall have the right, subject right in its sole discretion to the provisions set forth in this Section 11.05 to assume conduct the defense of same at such Indemnitorand to settle or resolve any Third-Party Claim. With respect to Third-Party Claims regarding infringement or misappropriation of Third Party Intellectual Property Right and Third-Party Claims that, if not first paid, discharged, or otherwise complied with, would result in a material interruption or cessation of Purchaser’s expense, including business with respect to the appointment and selection of counsel on behalf Device or would materially impair the value of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d)Device, the Indemnitor will Purchaser shall have the right in its sole discretion to conduct the defense of and to settle or resolve any Third-Party Claim (and the costs and expenses incurred by Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which Purchaser may seek indemnification pursuant to a claim made hereunder). The Sellers’ Agent shall have the right to settle or compromise or take any corrective or remediation action receive copies of all pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such documents does not affect any such Claim by all appropriate proceedings, privilege relating to any Indemnified Person and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the in, but not to determine or conduct, any defense of any such the Third-Party Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee settlement negotiations with respect to the defense Third-Party Claim. However, except with the consent of the Sellers’ Agent, which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Sellers’ Agent shall have objected within 20 days after a written request for such consent by Purchaser, no settlement thereofor resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Sellers’ Agent has consented to any such settlement or resolution, and (z) consider in good faith neither the recommendations made Sellers’ Agent nor any Seller shall have any power or authority to object under Section 8.5 or any other provision of this Article VIII to the amount of any claim by or on behalf of any Indemnified Person against the Indemnitee Escrow Fund for indemnity with respect theretoto such settlement or resolution.

Third Party Claims. (a) In 9.8.1 Promptly after the event receipt by any Parent Indemnitee of notice of the assertion commencement of any third-claim against such Parent Indemnitee by a third party Claim by in respect of which a Parent Indemnitee may make a claim for indemnification pursuant to this Article 9, such Parent Indemnitee shall give the Shareholder Representatives written notice of such third party claim and claim for indemnification in reasonable detail in light of the circumstances then known to such Parent Indemnitee. The failure to give such notice shall not relieve the Shareholder Representatives from any obligation hereunder except to the extent such failure prejudices the rights of the Shareholder Representatives or the ability of the Shareholder Representatives to defend or resolve such third party claim. The Shareholder Representatives shall have the right to defend such third party claim, at the Shareholder Representatives’ expense and with counsel of their choice reasonably satisfactory to the Parent Indemnitee; provided, however, that notwithstanding the foregoing, Parent shall be entitled to assume control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against any Parent Indemnitee; (iii) a conflict of interest with respect to the subject matter of the third party claim exists between the positions of the Shareholder Representatives and/or one or more of TOP-2005, LLC, the Indemnitor will Specified Entities, Voyager Capital Fund II, LP, Voyager Capital Fund II-A, LP, or Voyager Capital Founders’ Fund II, LP or any of their Affiliates, on the one hand, and any of the Parent Indemnitees, on the other hand, that Parent reasonably determines (which determination shall be conclusive as between the parties hereto) is of such significance that it would be reasonably likely to materially limit the Shareholder Representatives’ prosecution or defense of such claim; (iv) an adverse outcome of the claim could reasonably be expected to have a material adverse affect on the rightParent Indemnitees; (v) the Shareholder Representatives failed or are failing to vigorously prosecute or defend such claim, (vi) the claim relates to Intellectual Property or Taxes; or (vii) Parent reasonably determines that the claim is reasonably likely to result in Losses to the Parent Indemnitees in an amount greater than the amount of cash then constituting the Indemnity Escrow Amount at such time that is not subject to any outstanding claims. If the provisions set forth in this Section 11.05 to Shareholder Representatives assume the defense of same at such Indemnitor’s expensethird party claim, including the appointment and selection of counsel on behalf of the Parent Indemnitee agrees to cooperate in such defense so long as Parent Indemnitee is not materially prejudiced thereby. So long as the Shareholder Representatives are conducting the defense of such third party claim, Parent Indemnitee may retain separate co-counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will at its sole cost and expense and shall have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of such third party claim. Neither the Shareholder Representatives nor any Parent Indemnitee will consent to the entry of any judgment or enter into or offer any settlement or compromise with respect to such Claim and third party claim without the prior written consent of the other, which consent will not be unreasonably withheld. In the event the Shareholder Representatives do not or cease to engage separate counsel conduct the defense of its choice for such purpose; provided thatthird party claim, notwithstanding (x) Parent Indemnitee may defend against, and, with the foregoingprior written consent of the Shareholder Representatives (which consent shall not be unreasonably withheld), consent to the Indemnitor shall pay entry of any judgment or enter into any settlement or compromise with respect to, such third party claim, (y) the Parent Indemnitees may elect to have the reasonable costs and expenses of defending against such defense (third party claim, including reasonable attorneys’ fees and expenses) , paid out of the Indemnitee if Indemnity Escrow Amount and (iz) the Indemnitor consents in writing Parent Indemnitees will be permitted to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice recover any Losses they may suffer as a result of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-third party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available claim to the Indemnitor, or (B) full extent provided in this Article 9 out of the Indemnitee’s outside counsel Indemnity Escrow Amount. Regardless of which party shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claimthird party claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject each party shall provide to the terms of this Article XI. If the Indemnitor has assumed the defense of other parties on request all information and documentation reasonably necessary to support and verify any Losses which give rise to such claim for indemnification and shall provide reasonable access to all books, records and personnel in their possession or under their control which would have a third-bearing on such third party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoclaim.

Third Party Claims. (a) In the event an Acquiror Indemnified Person becomes aware of a third party claim (a “Third Party Claim”) which such Acquiror Indemnified Person believes in good faith may result in a demand for indemnification, the Acquiror Indemnified Person shall promptly notify the Indemnifying Person of the assertion Third Party Claim in writing. No delay or failure in providing such notice shall affect an Acquiror Indemnified Persons’ rights hereunder, unless (and then only to the extent that) the Indemnifying Person is materially prejudiced thereby. The Indemnifying Person shall be entitled to participate in the defense of any third-party the Third Party Claim and, if it so chooses, to assume the defense thereof at its own expense with counsel selected by an Indemniteesuch Indemnifying Person and reasonably acceptable to the Acquiror Indemnified Person, provided, that, the Indemnitor will have the right, subject Indemnifying Person gives written notice to the provisions set forth Acquiror Indemnified Person of its election to participate in this Section 11.05 or to assume the defense of same at the Third Party Claim within twenty (20) Business Days after the Indemnifying Person receives the written notice of such Indemnitorclaim from the Acquiror Indemnified Person; provided, however, that the Indemnifying Person shall not be entitled to assume the defense of any Third Party Claim in which, either directly or indirectly, (i) seeks an injunction or specific performance, or seeks any other form of equitable relief that would reasonably be expected to be material to any Acquiror Indemnified Person’s expense, including business; (ii) involves criminal allegations against the appointment Acquiror Indemnified Person (or could otherwise be expected to involve or develop into a claim involving a criminal claim or criminal charges against any Acquiror Indemnified Person) and selection of counsel does not involve or otherwise relate to any investigation or inquiry by any Governmental Entity; (iii) would reasonably be expected to impose liability on behalf the part of the Indemnitee so long Acquiror Indemnified Person for which the Acquiror Indemnified Person is not entitled to indemnification under this Agreement; (iv) the potential Damages would reasonably be expected to exceed the amount of the Escrow Amount (or any portion thereof that remains in escrow) after taking into account any amounts that may be payable to Acquiror in respect of any unsatisfied or unresolved claims for indemnification made (or expected to be made) by any Indemnifying Party as of such counsel time), as reasonably determined by the Acquiror Indemnified Person in good faith; (v) seeks any license to or otherwise places an Encumbrance on Intellectual Property owned or licensed by any Acquiror Indemnified Person; or (vi) would reasonably be likely to result in a settlement of, or an adverse judgment that in the Acquiror Indemnified Person’s good faith reasonable determination is reasonably acceptable likely to establish a precedential custom or practice adverse to the Indemnitee. Subject to Section 11.05(d)continuing business interests or the reputation of any Acquiror Indemnified Person, provided that the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor Acquiror Indemnified Person assumes the defense of any such third-party Claim, Third Party Claim and defends such Third Party Claim in a manner that is substantially similar in all material respects to the Indemnitee will be entitled, at its own cost and expense, manner in which it would have defended such claim if it were not entitled to participate the benefit of this Section 9 (with the Indemnitor reasonable expenses, and any settlement entered into in accordance with this Section 9.5, constituting Damages hereunder to the defense extent the Acquiror Indemnified Person is entitled to recover therefor under the terms hereof). Neither party may consent to the entry of any such judgment or enter into any settlement with respect to the Third Party Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding without the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) prior written consent of the Indemnitee other party if (i) such judgment or settlement does not include as an unconditional term thereof the Indemnitor consents giving by each claimant or plaintiff a full release from all liability in writing respect to paying such costs and expensesThird Party Claim, (ii) such judgment or settlement would result in the use finding or admission of counsel chosen any violation of any Legal Requirement by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interestperson, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, sole relief provided is anything other than monetary damages or (iv) as a result of such judgment or settlement, injunctive or other equitable relief would be imposed against the Indemnitor fails an Acquiror Indemnified Person or such judgment or settlement would reasonably be expected to assume such defense interfere with or engage counsel materially and adversely affect the business, operations or assets of the an Acquiror Indemnified Person. The Acquiror will cooperate, at the expense of the Indemnifying Person, as the Indemnifying Person may reasonably satisfactory to the Indemniteerequest, in each caseinvestigating, in a timely manner; provideddefending and, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms set forth above, settling such Third Party Claim. If the Indemnifying Person elects not to assume the defense of this Section 11.05. Notwithstanding the foregoinga Third Party Claim, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees is not permitted to assume the defense of such Claim, and any costs Third Party Claim or expenses incurred by fails to notify the Indemnitee Acquiror of its election to participate in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed or assume the defense of a third-party such Third Party Claim as herein provided, the Acquiror Indemnified Person may pay, compromise, settle or defend such Third Party Claim at the sole cost and expense of the Indemnifying Person if the Indemnifying Person is determined to be liable to the Acquiror Indemnified Person hereunder. Notwithstanding the foregoing, if the Indemnifying Person is contesting any claims in good faith, or would, but for its inability to assume the defense of such claims pursuant to this Section 11.059.5, it will (x) keep be contesting the Indemnitee advised claims in good faith, then the Acquiror Indemnified Person shall not pay or settle any such claims without the prior written consent of the status of such third-party Claim and the defense thereof on a reasonably current basisIndemnifying Person, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereofwhich shall not be unreasonably withheld, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoconditioned or delayed.

Third Party Claims. In order for a party (athe “indemnitee”) In to be entitled to any indemnification provided for under this Agreement in respect of, arising out of, or involving a claim or demand made by any Person against the event indemnitee (a “Third-Party Claim”), such indemnitee must notify the party from whom indemnification hereunder is sought (the “indemnitor”) in writing of the assertion Third-Party Claim within the time period prescribed in Sections 8.2(a) or 8.4(a), as applicable, no later than thirty (30) days after such claim or demand is first asserted. Such notice shall state in reasonable detail the amount or estimated amount of any third-party Claim by an Indemniteesuch claim, and shall identify the Indemnitor will specific basis (or bases) for such claim, including the representations, warranties or covenants in this Agreement alleged to have been breached. Failure to give such notification shall not affect the right, subject indemnification provided hereunder except to the provisions extent the indemnitor shall have been actually prejudiced as a result of such failure or such notice is given after the dates set forth in this Section 11.05 Sections 8.2(a) or 8.4(a), as applicable. Thereafter, the indemnitee shall deliver to assume the indemnitor, without undue delay, copies of all notices and documents (including court papers received by the indemnitee) relating to the Third-Party Claim so long as any such disclosure could not reasonably be expected to have an adverse effect on the attorney-client or any other privilege that may be available to the indemnitee in connection therewith. If a Third-Party Claim is made against an indemnitee, the indemnitor shall be entitled to participate, at its expense, in the defense thereof, with counsel of its choice reasonably satisfactory to the indemnitee; provided that the indemnitor conducts the defense of same at such Indemnitor’s expenseThird-Party Claim actively and diligently. Notwithstanding the foregoing, including if the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable indemnitor irrevocably admits to the Indemnitee. Subject indemnitee in writing its obligation to Section 11.05(d)indemnify the indemnitee for all liabilities and obligations relating to such Third-Party Claim, the Indemnitor will indemnitor may elect to assume and control the defense thereof with counsel selected by the indemnitor. If the indemnitor assumes such defense, the indemnitee shall have the right to settle or compromise or take any corrective or remediation action with respect participate in the defense thereof and to any employ counsel, at its own expense, separate from the counsel employed by the indemnitor, it being understood that the indemnitor shall control such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitordefense. If the Indemnitor indemnitor so assumes the defense of any such thirdThird-party Party Claim, all of the Indemnitee will be entitled, at its own cost and expense, to participate indemnified parties shall reasonably cooperate with the Indemnitor indemnitor in the defense or prosecution thereof. Such cooperation shall include, at the expense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoingindemnitor, the Indemnitor shall pay retention and (upon the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (iindemnitor’s request) the Indemnitor consents in writing provision to paying such costs the indemnitor of records and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties information which are reasonably relevant to such thirdThird-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XImaterial provided hereunder. If the Indemnitor indemnitor has assumed the defense of a thirdThird-party Party Claim, (i) the indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim pursuant without the indemnitor’s prior written consent (which consent shall not be unreasonably withheld or delayed); (ii) the indemnitee shall agree to this Section 11.05any settlement, it will compromise or discharge of a Third-Party Claim which the indemnitor may recommend and which by its terms releases the indemnitee from any liability in connection with such Third-Party Claim; and (xiii) keep the Indemnitee advised indemnitor shall not, without the written consent of the status of such third-party Claim and the defense thereof on a reasonably current basisindemnitee, (y) reasonably consult with the Indemnitee with respect enter into any settlement, compromise or discharge or consent to the defense and settlement thereof, and (z) consider in good faith entry of any judgment which imposes any obligation or restriction upon the recommendations made by the Indemnitee with respect theretoindemnitee.

Third Party Claims. (a) In the event that any Indemnified Party becomes aware of a third party claim (a “Third Party Claim”) which such Indemnified Party reasonably believes may result in an indemnification claim pursuant to this Article VIII, such Indemnified Party shall notify the assertion Stockholder Representative of any third-party such claim by delivering a Claim by an IndemniteeCertificate, and the Indemnitor will Stockholder Representative shall have the right, subject upon written notice to the provisions set forth in this Section 11.05 Indemnified Party (the “Defense Notice”) within thirty (30) days of its receipt from the Indemnified Party of the Claim Certificate, to assume the defense of same such Third Party Claim, at the expense of the Indemnifying Parties, with counsel selected by the Stockholder Representative and reasonably satisfactory to Parent (with WilmerHale being deemed satisfactory to Parent), provided that prior to such Indemnitor’s expenseassumption, including the appointment and selection of counsel Stockholder Representative, on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d)Indemnifying Parties, the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents acknowledges in writing to paying such costs and expenses, (ii) that Losses arising from the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Third Party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate indemnifiable under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05Article VIII. Notwithstanding the foregoing, the Indemnitee will Indemnifying Parties shall not have the right to defend assume control of the defense of any Third Party Claim (i) if the object of such thirdThird Party Claim is to obtain an injunction, restraining order, declaratory relief or other non-party Claim until monetary relief against the Indemnified Party which, if successful, would have an adverse effect on Parent, (ii) that is subject to the limitation set forth in Section 8.3(b) and asserts an amount of Losses which is in excess of 125% of the then-current value of the Escrow Fund (less the maximum aggregate amount of potential Losses in all other unresolved indemnification claims pursuant to this Agreement), (iii) that involves a Person that is a customer of the Company that represents at least $200,000 of invoiced revenues for the twelve (12) month period ending at such time as and in the Indemnitor agrees reasonable judgment of Parent the Indemnifying Parties’ defense thereof could reasonably be expected to assume have an adverse effect on the Indemnified Parties’ relationship with such customer, (iv) that relates to Taxes or (v) that alleges or arises from any infringement or misappropriation of Intellectual Property arising from or related to the design, development, testing, manufacture, use, import, sale, licensing or other exploitation of Company Products or Services, or of Company Intellectual Property or designs of Company Products or Services incorporated in any other products or services of Parent or any of its Subsidiaries. In the event that the Stockholder Representative assumes the defense of such Third Party Claim, (i) Parent and the Indemnified Party will cooperate with and make available to the Stockholder Representative such assistance, personnel, witnesses and materials as the Stockholder Representative may reasonably request upon reasonable advance notice at the expense of the Stockholder Representative (such expense to cover Parent’s direct out-of-pocket expenses only) and (ii) Parent shall have the right to participate in the defense assisted by counsel of its own choosing at Parent’s expense. The Stockholder Representative shall not consent to any costs settlement of, or expenses the entry of any judgment arising from, any such Third Party Claim without the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed if such settlement or judgment unconditionally releases Parent and the other Indemnified Parties from all liabilities and obligations with respect to such Third Party Claim and does not impose any injunctive or other equitable relief against Parent or the other Indemnified Parties). Neither Parent nor any other Indemnified Party shall consent to any settlement of, or the entry of any judgment arising from, any Third Party Claim without the prior written consent of the Stockholder Representative (which shall not be unreasonably withheld, conditioned or delayed). If there is a Third Party Claim that alleges or arises from any infringement or misappropriation of Intellectual Property arising from or related to the design, development, testing, manufacture, use, import, sale, licensing or other exploitation of Company Products or Services, or of Company Intellectual Property or designs of Company Products or Services incorporated in any other products or services of Parent or any of its Subsidiaries, in either case, that, if adversely determined would give rise to a right of recovery for Losses hereunder, then one-half of all amounts paid, sustained, suffered or incurred by the Indemnitee Indemnified Parties in connection therewith will defense of such Third Party Claim shall be deemed Losses hereunder hereunder, unless and subject to the extent that the Indemnifying Party is otherwise entitled to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05Article VIII for Losses paid, it will (x) keep the Indemnitee advised sustained, suffered or incurred as a result of, arising out of the status of or in connection with such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoThird Party Claim.

Third Party Claims. (a) In the event Parent becomes aware of a claim by a third party (a “Third-Party Claim”) that Parent in good faith believes may result in a claim against the assertion Escrow Fund by or on behalf of any third-party Claim by an IndemniteeIndemnified Person, the Indemnitor Parent will have the right, subject right in its sole discretion to the provisions set forth in this Section 11.05 to assume conduct the defense of same at and to settle or resolve such Indemnitor’s expenseThird-Party Claim, and the costs and expenses incurred by Parent in connection with such defense, settlement or resolution, including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs, will be included in the appointment and selection Indemnifiable Damages regardless of counsel on behalf of the Indemnitee so long as whether it is ultimately determined that such counsel is reasonably acceptable to the IndemniteeThird-Party Claim arose out of, resulted from or was in connection with a matter listed in Section 8.2. Subject to Section 11.05(d), the Indemnitor The Agent will have the right to settle or compromise or take any corrective or remediation action with respect to any participate in (but not control) such Claim by all appropriate proceedings, defense and the Indemnitor Equityholders shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion be solely liable (on behalf of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice Equityholders) for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs fees and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such IndemniteeAgent’s outside separate counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoingthat in any event, the Indemnitee Agent will have the right to defend any receive copies of all pleadings, notices and communications with respect to such thirdThird-party Party Claim until such time as to the Indemnitor agrees to assume the defense extent that receipt of such Claimdocuments does not affect any privilege relating to any Indemnified Person, subject to execution by the Agent of Parent’s (and, if required, such third party’s) standard non-disclosure agreement to the extent that such materials contain confidential or proprietary information, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) Parent shall keep the Indemnitee Agent reasonably advised of as to the status of such third-party Claim Action and the defense thereof on a reasonably current basis, (y) reasonably consult and will cooperate with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the input and recommendations made by of the Indemnitee with respect theretoAgent and Agent’s counsel, but Parent will have the right in its sole discretion to determine and conduct the defense of any Third-Party Claim and the settlement, adjustment or compromise of such Third-Party Claim; provided that the settlement amount of a Third-Party Claim will not be determinative of the amount of Indemnifiable Damages unless (x) the Agent consents to such settlement or (y) the Agent unreasonably withholds, conditions or delays its consent to such settlement.

Third Party Claims. (a) In Except as otherwise provided in this Agreement, the event following procedures shall be applicable with respect to indemnification for third party Claims. Promptly after receipt by the party seeking indemnification hereunder (hereinafter referred to as the "Indemnitee") of notice of the commencement of any action or the assertion of any third-Claim, liability or obligation by a third party Claim (whether by an legal process or otherwise), against which Claim, liability or obligation another party to this Agreement (hereinafter the "Indemnitor") is, or may be, required under this Agreement to indemnify such Indemnitee, the Indemnitee shall, if a claim thereon is to be, or may be, made against the Indemnitor, immediately notify the Indemnitor will in writing of the commencement or assertion thereof and give the Indemnitor a copy of such Claim or process and all legal pleadings. The Indemnitee's failure to give timely notice as required by this Section 9.5(a) shall not serve to eliminate or limit the Indemnitor's obligation to indemnify the Indemnitee unless such failure prejudices the rights of the Indemnitor, and then only to the extent of such prejudice. Moreover, the Indemnitee shall have the right, subject right to take any actions or steps reasonably necessary to avoid the occurrence of any prejudice to the provisions set forth in this Section 11.05 rights of the Indemnitee. The Indemnitor shall have the right to assume the defense of same at such Indemnitor’s expense, including the appointment and selection action with counsel of counsel on behalf reputable standing unless with respect to such action (A) injunctive or equitable remedies have been sought therein in respect of the Indemnitee so long as or its business or (B) such action is for an alleged amount of less than Five Thousand Dollars ($5,000); provided, that the Indemnitee and counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will Indemnitee shall have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes participate in the defense of any and all Claims pursuant to the provisions of Section 9.5(b) hereof. The Indemnitor and the Indemnitee shall reasonably cooperate in the defense of such third-party ClaimClaims. If the Indemnitee shall be required by judgment or a settlement agreement to pay any amount in respect of any obligation or liability against which the Indemnitor has agreed to indemnify the Indemnitee under this Agreement, the Indemnitor shall immediately pay such amount to the Indemnitee will be entitledin order to enable the Indemnitee to make such payment, and otherwise shall promptly reimburse the Indemnitee in an amount equal to the amount of such payment, in either case, plus all reasonable out-of-pocket expenses (including legal fees and expenses) incurred by such Indemnitee at its own cost and expensethe specific request of the Indemnitor, as provided above, or as otherwise authorized by Section 9.5(b) hereof, in connection with such obligation or liability subject to participate with the Indemnitor this Section IX. No Indemnitor, in the defense of any such Claim and Claim, shall, except with the consent of the Indemnitee, consent to engage separate counsel entry of its choice for any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such purpose; provided that, notwithstanding Indemnitee of a release from all liability with respect to such Claim. In the foregoing, event that the Indemnitor shall pay does not accept the reasonable costs and expenses defense of any matter for which it is entitled to assume such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents as provided in writing to paying such costs and expensesthis Section 9.5(a), (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available the full right to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, defend against any such Claim and the prosecution and negotiation thereof shall be controlled by entitled to settle or agree to pay in full such Claim in its sole discretion. With respect to any matter as to which the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees is not entitled to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject pursuant to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.059.5(a), it will (x) keep the Indemnitee advised shall not enter into any settlement for which an indemnification Claim will be made hereunder without the approval of the status of such third-party Claim and the defense thereof on a reasonably current basisIndemnitor, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretowhich shall not be unreasonably withheld.

Third Party Claims. (a) In If a Loss or an event that may give rise to a Loss occurs for which the event of the assertion of any third-party Claim by an Indemnitee, the Indemnitor will have the right, subject Shareholder may be liable to the provisions set forth in this Indemnitee under Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel 9.1(a) above based on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(da claim or proceeding by a third party (a "Third Party Claim"), the Indemnitor will have Indemnitee shall promptly give the right to settle or compromise or take any corrective or remediation action with respect to any Shareholder written notice describing such Third Party Claim by all appropriate proceedings, and the Indemnitor shall use commercially amount or a reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion estimate of the Indemnitor. If amount of liability to the Indemnitor assumes Shareholder that may arise therefrom; provided that failure to provide such notice promptly shall not excuse the defense Shareholder's obligation under Section 9.1(a) above except to the extent of any such third-party Claim, prejudice to the Indemnitee resulting from such failure. The Shareholder will be entitled, at its own cost and expenseentitled to participate in any proceeding involving a Third Party Claim (a "Proceeding") and, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense extent that he wishes (including reasonable attorneys’ fees and expenses) of the Indemnitee if unless (i) the Indemnitor consents Shareholder is also a party to such Proceeding and the Indemnitee determines in writing to paying such costs and expensesgood faith that joint representation would be inappropriate, or (ii) the use of counsel chosen by the Indemnitor Shareholder fails to represent provide reasonable assurance to the Indemnitee would, based on the good faith advice of his financial capacity to defend such Indemnitee’s outside counsel, present such counsel Proceeding and provide indemnification with a conflict of interest, (iii) the named parties respect to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the IndemnitorProceeding), or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such ClaimProceeding with counsel chosen by the Shareholder subject to the Indemnitee's reasonable approval of such counsel, and and, after notice from the Shareholder to the Indemnitee of its election to assume the defense of such Proceeding, the Shareholder will not, as long as he diligently conducts such defense, be liable to the Indemnitee under this Section 9.1 (i) for any costs fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and the defense of such Proceeding; or (ii) subject to the terms remaining provisions of this Article XISection 9.1(b), for any settlement agreed to by the Indemnitee, without the prior written approval of the Shareholder, which shall not be unreasonably delayed or withheld. If the Indemnitor has assumed Shareholder assumes the defense of a third-party Claim pursuant Proceeding, no compromise or settlement of any Third Party Claims subject to this Section 11.05the Proceeding may be effected by the Shareholder without the Indemnitee's consent, it will which shall not be unreasonably delayed or withheld. If notice is given to the Shareholder of the commencement of any Proceeding and the Shareholder does not, within twenty (x20) keep days after Indemnitee's notice is given, give notice to the Indemnitee advised of his election to assume the status defense of such third-party Claim and Proceeding, the defense thereof on a reasonably current basisShareholder will be bound by any determination made in such Proceeding or any compromise or settlement effected by the Indemnitee. Notwithstanding the foregoing, (y) reasonably consult with if the Indemnitee with respect to the defense and settlement thereof, and (z) consider determines in good faith the recommendations made by that there is a reasonable probability that a Proceeding may adversely and materially affect it other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnitee with respect theretomay, by notice to the Shareholder, assume the exclusive right to defend, compromise or settle such Proceeding.

Third Party Claims. If any suit, claim, investigation, action, inquiry, charge, citation, arbitration, grievance or proceeding (aeach a "Proceeding") In the is initiated against any Indemnitee by any third party and such Indemnitee intends to seek indemnification from an Indemnitor under this Article VIII on account of its involvement in such Proceeding (a "Third Party Claim"), then such Indemnitee will give prompt notice, but in no event more than fifteen (15) calendar days following Buyer or Parent's knowledge of the assertion making of any third-party Claim by an Indemniteesuch claim, to the applicable Indemnitor of such Proceeding; provided, that the failure to so notify such Indemnitor will have the right, subject not relieve such Indemnitor of its obligations under this Article VIII (except to the provisions extent the defense of such claim is materially prejudiced by such failure), and will reduce such obligations by the amount of damages or increased costs and expenses attributable to such failure to give notice. Upon receipt of such notice, if the third party claim would not reasonably be expected to exceed the cap set forth in this Section 11.05 8.07(b), does not seek injunctive relief, such Indemnitor shall have the option to assume the defense of same such Proceeding on behalf of such Indemnitee at the Indemnitor's own expense using counsel reasonably acceptable to such Indemnitee; provided, that if such Indemnitor fails or refuses to conduct such defense, or such Indemnitee has been advised by counsel that it may have defenses available to it which are different from or in addition to those available to such Indemnitor, or that its interests in such Proceeding are adverse to such Indemnitor's interests, then such Indemnitee may defend against (but not settle) such Proceeding at such Indemnitor’s 's expense; provided, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), that in no event shall the Indemnitor will have be liable for the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, fees and expenses of more than one counsel for the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to Indemnitees as a final conclusion or settle such proceedings at the discretion of the Indemnitorgroup. If the Indemnitor assumes the defense of any such third-third party Claimclaim, the Indemnitee will be entitledmay participate, at his or its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purposethird party claim; provided thatprovided, notwithstanding the foregoinghowever, that the Indemnitor shall pay control the reasonable costs investigation, defense and expenses of such defense (including reasonable attorneys’ fees and expenses) settlement thereof. The Indemnitor shall not, without the prior written consent of the Indemnitee if (which shall not be unreasonably withheld), consent to a settlement, compromise or discharge of, or the entry of any judgment arising from, any third party claim, unless such settlement, compromise, discharge or entry of any judgment does not involve any finding or admission of any violation of Governmental Rule or admission of any wrongdoing by the Indemnitee, and the Indemnitor shall (i) pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the Indemnitor consents effectiveness of such settlement or judgment (unless otherwise provided in writing to paying such costs and expensesjudgment), (ii) not encumber any of the use material assets of counsel chosen by any Indemnitee or agree to any restriction or condition that would apply to or materially adversely affect any Indemnitee or the Indemnitor to represent the Indemnitee would, based on the good faith advice conduct of such any Indemnitee’s outside counsel, present such counsel with a conflict of interest, 's business and (iii) the named parties to obtain, as a condition of any settlement, compromise, discharge, entry of judgment (if applicable), or other resolution, a complete and unconditional release of each Indemnitee from any and all liabilities in respect of such third-third party Claim include both the Indemnitee and claim. Whether the Indemnitor and (A) assumes control of the Indemnitee shall have reasonably concluded that there are defense of a claim or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoingnot, the Indemnitee will may not settle, compromise or consent without the prior written consent of the Indemnitor (which shall not be unreasonably withheld) to the entry of any judgment with respect to any third party claim. Notwithstanding anything in this Section 8.05 to the contrary, no Indemnitor shall have the right to defend any third party claim (but may participate, at its own expense, in the defense of such third-party Claim until claim) if such time as claim is a criminal claim and the Indemnitor agrees Indemnitee may elect to assume the defense of such Claim, claim and any costs or such reasonable expenses incurred by the shall constitute Losses payable to an Indemnitee as set forth in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XIVIII. If Any Indemnitor and Indemnitee will reasonably cooperate with each other in the Indemnitor has assumed the defense conduct of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of any such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoProceeding.

Third Party Claims. (a) In the event case of any claim brought or threatened by a third party (including Governmental Authorities) against any Indemnified Party that is reasonably likely to give rise to an indemnification claim against Seller under this Agreement (such claim a Third Party Claim), Buyer shall notify Seller as soon as reasonably practicable with reasonable detail of the assertion of any third-party Third Party Claim by an Indemnitee(which shall indicate the amount (estimated, the Indemnitor will have the right, subject if necessary and to the provisions set forth in this Section 11.05 to extent feasible) of the Loss that has been or may be suffered by the Indemnified Party). Seller may, by written notice within 30 Business Days after receipt of the applicable notice by Buyer, assume and conduct the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Third Party Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if : (i) the Indemnitor consents defense of such Third Party Claim by Seller will not, in writing to paying such costs and expensesthe reasonable judgment of the Indemnified Party, have a material adverse effect on the Indemnified Party or the Business; (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, Third Party Claim involves only money damages and does not seek any injunctive or other equitable relief or include criminal charges; (iii) Seller has sufficient financial resources, in the reasonable judgment of the Indemnified Party, to satisfy the amount of any adverse monetary judgment that is reasonably likely to result; (iv) if the named parties to such third-party in any Third Party Claim include both Seller or any of its Affiliates and Buyer or any of its Affiliates, representation by the Indemnitee and same counsel would, in the Indemnitor and (A) reasonable judgment of Buyer of the Indemnitee shall have reasonably concluded that there are or may Indemnified Party, still be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to appropriate notwithstanding any actual or potential differing interests between the Indemnitor them; (v) such Third Party Claim does not involve a Material Customer or Material Supplier; and (vi) Seller has confirmed to Buyer in writing that such Indemnitee, or (iv) the Indemnitor fails Third Party Claim is one in respect of which it is obligated to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor indemnify Buyer hereunder subject to the other terms of limitations set out in this Section 11.057 and expressly agrees in writing to be fully responsible for all Losses relating to such Third Party Claim. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume Seller shall actively and diligently proceed with the defense of such any Third Party Claim that it assumes and shall keep Buyer informed with respect to the status of the Third Party Claim. It is understood that Seller may waive at any time its right to assume and conduct the defense with respect to any particular Third Party Claim. If Seller does not assume, and any costs or expenses incurred by is prohibited from assuming, the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification defense of a Third Party Claim in accordance with and subject to this Section 7.1.5(a), the terms of this Article XIIndemnified Party must defend the Third Party Claim. If the Indemnitor Seller has assumed the defense of a third-party Third Party Claim pursuant to as provided in this Section 11.057.1.5(a), it Seller will (x) keep not be liable for any legal expenses subsequently incurred by the Indemnitee advised Indemnified Party in connection with the defense of the status Third Party Claim; provided, however, that if all of the conditions set forth in Section 7.1.5(a)(i)-(v) cease to be met or Seller fails to diligently defend such third-party Claim Third Party Claim, the Indemnified Party may assume its own defense, and Seller will be liable for all reasonable costs or expenses paid or incurred in connection with such defense. The Indemnified Party has the right to participate in (but not control), at its own expense, the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider of any Third Party Claim that Seller is defending as provided in good faith the recommendations made by the Indemnitee with respect theretothis Agreement.

Third Party Claims. (a) In the event Parent becomes aware of the assertion of any a third-party claim (a “Third-Party Claim”) which Parent reasonably believes may result in a claim for indemnification pursuant to this Article VIII, Parent shall notify the Stockholder Representative of such claim with an Indemnification Claim Notice (a “Third-Party Notice”), and the Third-Party Notice shall be accompanied by an Indemniteecopies of any documentation submitted by the third party making such Third-Party Claim (except that Parent may withhold from Stockholder Representative such communications with its legal counsel to the extent that legal counsel to Parent advises that providing such communication could result in the loss of any attorney-client privilege or right under the work-product doctrine of Parent or any Parent Indemnified Party in respect of such claim, after giving due consideration to any “community of interest” or similar privilege, if any); provided that no delay or failure on the part of Parent in delivering a Third-Party Notice shall cause any Parent Indemnified Party to forfeit any indemnification rights under this Article VIII except to the extent that the Company Indemnitors are actually prejudiced by such delay or failure. The costs and expenses incurred by Parent in connection with any investigation, defense, settlement or resolution of such Third-Party Claim and the enforcement and protection of its rights under this Agreement in respect thereof (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Losses for which Parent may seek indemnification pursuant to a claim made hereunder and such costs and expenses shall constitute Losses subject to indemnification under Section 8.2, solely to the extent it is determined in accordance with Section 8.4 that such Third-Party Claim itself is indemnifiable under this Article VIII or the Stockholder Representative has consented (or deemed to have consented) to a settlement of such Third-Party Claim under this Section 8.5. Upon receipt of a Third-Party Notice, the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel Stockholder Representative shall be entitled (on behalf of the Indemnitee so long as Company Indemnitors and at their expense) to participate in, but not to control, determine or conduct, the defense of such counsel is reasonably acceptable to the IndemniteeThird-Party Claim. Subject to Section 11.05(d)the last sentence of this paragraph, the Indemnitor will Parent shall have the right in its sole discretion to settle conduct the defense of, and to settle, any such claim and the Stockholder Representative shall not be entitled to control any negotiation of settlement, adjustment or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and Third-Party Claim; provided that except with the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion written consent of the Indemnitor. If the Indemnitor assumes the defense Stockholder Representative, no settlement of any such Third-Party Claim with third-party Claim, claimants shall be determinative of the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense right of any such Claim and Parent Indemnified Party to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel be indemnified with a conflict of interest, (iii) the named parties respect to such thirdThird-party Party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from settlement or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely mannerany Losses relating thereto; provided, further, that, for that the avoidance consent of doubt, the Stockholder Representative with respect to any settlement of any such Third-Party Claim and the prosecution and negotiation thereof shall be controlled deemed to have been given unless the Stockholder Representative shall have objected within 30 days after a written request for such consent by Parent. In the Indemnitor subject event that the Stockholder Representative has consented to the other terms of this Section 11.05. Notwithstanding the foregoingany such settlement, adjustment or compromise, the Indemnitee will Company Indemnitors shall have the right no power or authority to defend object under any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms provision of this Article XI. If VIII to the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status amount of such third-party Claim and the defense thereof on a reasonably current basissettlement, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoadjustment or compromise.

Third Party Claims. (a) In All claims for indemnification made under this Agreement resulting from, related to or arising out of a third-party claim shall be made in accordance with the event following procedures. The Buyer shall give prompt written notification to the Sellers’ Representative of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification may be sought or, if earlier, upon the assertion of any third-such claim by a third party; provided, however, that failure to provide such notice to the Sellers’ Representative shall not eliminate the Buyer’s right to indemnification, except to the extent the Holders are materially and adversely prejudiced thereby. Such notification shall include a description in reasonable detail (to the extent known by the Buyer) of the facts constituting the basis for such third party Claim by an Indemniteeclaim and the amount of the Damages claimed. Except as otherwise provided in Section 6.8, within 30 days after delivery of such notification, the Indemnitor will have the rightSellers’ Representative may, subject upon written notice thereof to the provisions set forth in this Section 11.05 to Buyer, assume control of the defense of same at such Indemnitor’s expenseaction, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d)suit, the Indemnitor will have the right to settle proceeding or compromise or take any corrective or remediation action claim with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the IndemniteeBuyer so long as the economic risk of the Holders is greater than that of the Buyer. If the Sellers’ Representative does not assume control of such defense, the Buyer shall control such defense. The party not controlling such defense may participate therein at its own expense, provided that if the Sellers’ Representative assumes control of such defense and the Buyer reasonably concludes, based on advice from counsel, that the Holders and the Buyer have conflicting interests with respect to such action, suit, proceeding or claim, the reasonable fees and expenses of counsel to the Buyer solely in each case, in a timely mannerconnection therewith shall be considered “Damages” for purposes of this Agreement; provided, furtherhowever, that, that in no event shall the Buyer be indemnified for the avoidance fees and expenses of doubt, more than one counsel. The party controlling such Claim and the prosecution and negotiation thereof defense shall be controlled by the Indemnitor subject to keep the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim action, suit, proceeding or claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) shall consider in good faith the recommendations made by the Indemnitee other party with respect thereto. Neither party may agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed; provided that the Sellers’ Representative may agree to such settlement without such consent if there are no Damages as to which the Buyer is entitled pursuant to this Article IX which have not been paid, there are no Pending Indemnity Claims and the period within which the Buyer is entitled to deliver a Claim Notice has expired. The Sellers’ Representative shall not agree to any settlement of such action, suit, proceeding or claim that does not include a complete release of the Buyer (or, if relevant, the Company) from all liability with respect thereto. Notwithstanding anything contained herein to the contrary, the Sellers’ Representative will be entitled to control the defense of any demand for appraisal so long as Sellers’ Representative complies with all the requirements of this Section 9.2(a) and considers in good faith all reasonable recommendations made by the Buyer with respect thereto.

Third Party Claims. (a) In the event Promptly after Purchaser obtains knowledge of the assertion of any thirda Third-party Party Claim by an Indemnitee, the Indemnitor will have the right, that has been or may be brought or asserted that may be subject to the provisions set forth in this Section 11.05 to assume the defense indemnification hereunder, Purchaser shall promptly give notice of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable Third-Party Claim to the IndemniteeRepresentative, stating the nature and basis of such Third-Party Claim and the dollar amount of such Third-Party Claim, to the extent known. Subject to Section 11.05(d), the Indemnitor will The Representative shall have the right at its election, at any time, to settle or compromise or take defend any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such thirdThird-party Party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if which case: (i) the Indemnitor consents attorneys’ fees of counsel reasonably acceptable to Purchaser (approval of such counsel not to be unreasonably withheld), other professionals’ and experts’ fees and court or arbitration costs incurred by the Representative in writing to paying connection with defending such costs and expensesThird-Party Claim shall be payable from the Escrow Amount, without the requirement of any consent or approval by the Purchaser (ii) the use of counsel chosen by Purchaser shall not be entitled to be indemnified (from the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iiiEscrow Amount or otherwise) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee Purchaser in connection therewith will with the defense of such Third-Party Claim; (iii) the Purchaser shall be Losses hereunder entitled to monitor such defense at its expense; (iv) the Purchaser shall make available to the Representative all books, records and subject other documents and materials that are under the direct or indirect control of the Purchaser or any of its Subsidiaries or other affiliates and that the Representative considers necessary or desirable for the defense of such Third-Party Claim; (v) the Purchaser shall execute such documents and take such other actions as the Representative may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Third-Party Claim; (vi) the Purchaser shall otherwise fully cooperate as reasonably requested by the Representative in the defense of such Third-Party Claim; (vii) the Purchaser shall not admit any liability with respect to indemnification such Third-Party Claim; and (viii) the Representative shall not enter into any settlement agreement providing for the settlement of such Third-Party Claim without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld) if such settlement agreement imposes on the Purchaser or any of its Subsidiaries or other affiliates any obligation, other than an obligation to pay monetary damages in accordance with and an amount less than the aggregate amount available through the liquidation of the Shares remaining subject to the terms of this Article XIEscrow Agreement. If the Indemnitor has assumed Representative does not elect to defend such Third Party Claim, Purchaser may defend such claim but any Damages relating to such claim shall be paid to the defense Purchaser from the Escrow Shares by cancellation of a third-party shares in an amount determined by dividing (a) the total amount of Damages set forth on the Claim pursuant to this Section 11.05, it will Notice multiplied by 2 by (xb) keep the Indemnitee advised average of the status closing prices of such third-party the Purchaser Securities as set forth on the Over the Counter Bulletin Board as reported by Nasdaq for the 30 trading days after the date of delivery of the Claim and Notice. Notwithstanding the defense thereof on a reasonably current basisforegoing, in no event shall “(y) reasonably consult with b)” in the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoforegoing formula be less than $1.00.

Third Party Claims. Promptly after the assertion by any third party of any claim against a Parent Indemnified Party that in the reasonable judgment of such Parent Indemnified Party may result in the incurrence by such Parent Indemnified Party of Losses for which such Parent Indemnified Party would be entitled to indemnification pursuant to this Agreement (a) In each a “Third Party Claim”), such Parent Indemnified Party shall deliver to the event Stockholder Representative a written notice describing in reasonable detail such claim and the Stockholder Representative may, at its option, assume the defense of the assertion Parent Indemnified Party against such claim (including the employment of counsel, who shall be reasonably satisfactory to such Parent Indemnified Party) at the Company Common Stockholders’ expense. Any failure on the part of the Parent Indemnified Party to provide prompt notice shall not limit any of the obligations of the Company Common Stockholders (except to the extent such failure materially prejudices the defense of such claim). Any Parent Indemnified Party shall have the right to employ separate counsel in any Third Party Claim of which the Stockholder Representative has assumed the defense and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Company Common Stockholders unless: (i) the employment of such counsel has been specifically authorized in writing by the Stockholder Representative, or (ii) the Parent Indemnified Party shall have been advised by counsel in writing that there would be a material conflict in the representation of the Parent Indemnified Party and the Company Stockholders by the same counsel. The Company Common Stockholders shall not be liable to indemnify any Parent Indemnified Party for any settlement of any third-party such Third Party Claim by an Indemniteeeffected without the consent of the Stockholder Representative, but if settled with the written consent of the Stockholder Representative, or if there be a final judgment for the plaintiff in any such action, the Indemnitor will have the rightCompany Common Stockholders shall indemnify and hold harmless each Parent Indemnified Party from and against any loss or liability by reason of such settlement or judgment, subject to the provisions limitations set forth in this Article IX. The Parent Indemnified Parties agree to reasonably cooperate in all matters covered by this Section 11.05 to assume the defense of same at such Indemnitor’s expense9.4, including the appointment and selection of counsel on behalf of the Indemnitee so long including, as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d)required, the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedingsfurnishing of books and records, personnel and witnesses and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion execution of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemniteedocuments, in each case, in a timely manner; provided, further, that, case as necessary for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, third party claim and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject at no cost to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoCompany Common Stockholders.

Third Party Claims. All claims for indemnification made under this Agreement arising out of a Third-Party Action shall be made in accordance with the following procedures. If an Indemnified Party receives notice of any Third-Party Action against such Indemnified Party, or, if earlier, becomes aware of any Third-Party Action, it shall as promptly as practicable provide written notice thereof to the Indemnifying Party (aa “Third-Party Claim Notice”), which notice shall describe in reasonable detail (to the extent then known by the Indemnified Party) In the event facts constituting the basis for such Third-Party Action and the claim for indemnification hereunder and shall include a good faith estimate (if reasonably practicable) of the assertion amount of the claimed Damages actually suffered or incurred or that could reasonably be expected to be incurred; provided, however, that the failure to provide such notice shall not relieve the Indemnifying Party from any of its obligations under this Article VIII except to the extent the Indemnifying Party is adversely prejudiced by such failure. The Parties acknowledge and agree that a Third-Party Claim Notice must be delivered (whether or not formal legal action shall have been commenced based upon such Third-Party Action) before the expiration of any third-party Claim by an Indemnitee, the Indemnitor will have the right, subject to the provisions applicable survival period set forth in this Section 11.05 8.3. At any time prior to the 30th day after delivery of such Third-Party Claim Notice, the Indemnifying Party may (but shall not be obligated to), upon written notice thereof to the Indemnified Party, assume control of the defense of same at such Indemnitor’s expenseThird-Party Action with counsel reasonably satisfactory to the Indemnified Party; provided, including however, that (x) the appointment and selection of counsel on behalf Indemnifying Party may not assume control of the Indemnitee so long as defense of a Third-Party Action if the Indemnified Party in good faith determines that the conduct of the defense or any proposed settlement of such counsel is Third-Party Action would reasonably acceptable be expected to involve the imposition of criminal Liability against the Indemnified Party or would reasonably be expected to materially and adversely affect the Indemnified Party’s ability to conduct its business and (y) prior to the Indemnitee. Subject time the Indemnified Party is notified by the Indemnifying Party as to Section 11.05(d)whether the Indemnifying Party will assume control of the defense of such Third-Party Action, the Indemnitor will have the right to settle or compromise or Indemnified Party shall take any corrective or remediation action actions reasonably necessary to timely preserve the collective rights of the Parties with respect to any such Claim by all appropriate proceedingsThird-Party Action. If the Indemnifying Party elects not to assume, and or does not timely assume control of, such defense, the Indemnitor Indemnified Party shall use commercially reasonable efforts control the defense against, or may otherwise seek to diligently prosecute such proceedings to a final conclusion negotiate or settle such proceedings at the discretion of the IndemnitorThird-Party Action. If the Indemnitor Indemnifying Party assumes the defense control of any such third-party Claimdefense, the Indemnitee will be entitledIndemnified Party may participate therein with counsel of its choice, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided thatthat if the Indemnified Party reasonably concludes, notwithstanding the foregoingbased on advice from counsel, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if that (i) the Indemnitor consents in writing Indemnifying Party and the Indemnified Party have a conflict of interest with respect to paying such costs and expenses, Third-Party Action or (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be legal defenses available to such Indemnitee the Indemnified Party that are different from or additional to those available to the IndemnitorIndemnifying Party, or (B) the Indemnitee’s outside reasonable fees, costs and expenses of counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, Indemnified Party in each case, in a timely mannerconnection therewith shall be considered “Damages” for purposes of this Agreement; provided, furtherhowever, that, that in no event shall the Indemnifying Party be responsible for the avoidance fees and expenses of doubt, more than one (1) counsel for all Indemnified Parties in each jurisdiction for which counsel is required with respect to such Claim and the prosecution and negotiation thereof Third-Party Action. The party controlling such defense shall be controlled by the Indemnitor subject to keep the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee its counsel advised of the status of such thirdThird-party Claim Party Action and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) shall consider in good faith the recommendations made by the Indemnitee other party or its counsel with respect thereto. The respective parties and their counsel shall reasonably cooperate with the other parties in the defense or prosecution of any Third-Party Action, including providing copies of or reasonable access to all relevant correspondence, records, documents, testimony and information in connection with the defense, negotiation or settlement thereof and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. The Indemnified Party shall not agree to any settlement or compromise of any such Third-Party Action without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall not agree to any settlement or compromise of, or permit a default or consent to entry of any judgment in, such Third-Party Action that does not include a complete and unqualified release of the Indemnified Party from all Liability with respect thereto or that imposes any Liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). To the extent of any conflict between this Section 8.2(a) and Section 6.6, Section 6.6 shall apply.

Third Party Claims. In order for a party (athe “indemnitee”) In to be entitled to any indemnification provided for under this Agreement with respect to, arising out of, or involving a claim or demand made by any Person against the event indemnitee (a “Third-Party Claim”), such indemnitee must notify the party from whom indemnification hereunder is sought (the “indemnitor”) in writing of the assertion Third-Party Claim no later than thirty (30) days after such claim or demand is first asserted in writing. Such notice shall state in reasonable detail the amount or estimated amount of any third-party Claim by an Indemniteesuch claim, and shall identify the specific basis (or bases) for such claim, including the representations, warranties, covenants or obligations in this Agreement alleged to have been breached. Failure to give such notification shall not affect the indemnification provided hereunder, except and only to the extent the indemnitor shall have been actually prejudiced as a result of such failure. Thereafter, the Indemnitor will indemnitee shall deliver to the indemnitor, without undue delay, copies of all notices and documents (including court papers received by the indemnitee) relating to the Third-Party Claim so long as any such disclosure could not reasonably be expected to have an adverse effect on the attorney-client or any other privilege that may be available to the indemnitee in connection therewith. The indemnitor may elect to assume and control the defense of a Third-Party Claim with counsel selected by the indemnitor by providing written notice thereof to the indemnitee within thirty (30) days of the receipt of notice of such Third-Party Claim from the indemnitee. If the indemnitor assumes such defense, the indemnitee shall have the rightright to participate in the defense thereof and to employ counsel, subject to at its own expense, separate from the provisions set forth counsel employed by the indemnitor, it being understood that the indemnitor shall control such defense; provided, that the indemnitor will not be liable for any legal expenses subsequently incurred by the indemnitee in this Section 11.05 to connection with the defense of such Third-Party Claim. If the indemnitor does not assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d)any Third-Party Claim, the Indemnitor will have the right indemnitee may continue to settle or compromise or take any corrective or remediation action with respect to any defend such Claim by all appropriate proceedings, claim and the Indemnitor shall use commercially reasonable efforts to diligently prosecute indemnitor may still participate in, but not control, the defense of such proceedings to a final conclusion or settle such proceedings Third-Party Claim at the discretion of the Indemnitorindemnitor’s sole cost and expense. If the Indemnitor indemnitor so assumes the defense of any such thirdThird-party Party Claim, all of the Indemnitee will be entitled, at its own cost and expense, to participate indemnified parties shall reasonably cooperate with the Indemnitor indemnitor in the defense or prosecution thereof. Such cooperation shall include, at the expense of the indemnitor, the retention and (upon the indemnitor’s request) the provision to the indemnitor of records and information which are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any such Claim and to engage separate counsel of its choice for such purpose; material provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if hereunder. The indemnitee (i) shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnitor consents in writing to paying such costs indemnitor’s prior written consent (which consent shall not be unreasonably withheld or delayed); and expenses, (ii) shall agree to any settlement, compromise or discharge of a Third-Party Claim which the use indemnitor may recommend and which by its terms unconditionally releases the indemnitee from all liabilities and obligations in connection with such Third-Party Claim. The indemnitor shall not, without the written consent of counsel chosen the indemnitee, enter into any settlement, compromise or discharge or consent to the entry of any judgment which imposes any obligation or restriction upon the indemnitee or does not include as an unconditional term thereof the giving by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties each claimant or plaintiff to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense indemnitee of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee release from all liability with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretosuch Third-Party Claim.

Third Party Claims. If the Claimant's notice involves a claim against the Claimant by a Person not a party to this Agreement (a) In the event of the assertion of any third-party Claim by an Indemnitee, the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(da "Third Party"), the Indemnitor will shall have the exclusive right to settle or compromise or take any corrective or remediation action with respect to defend and settle, at Indemnitor's own expense and by Indemnitor's own counsel, any such Claim matter so long as the Indemnitor pursues the same diligently and in good faith. If the Indemnitor undertakes to defend or settle, it shall promptly notify the Claimant of its intention to do so, and the Claimant shall cooperate, at the sole expense of the Indemnitor, with the Indemnitor and its counsel in all commercially reasonable respects in the defense thereof and in any settlement thereof. Such cooperation shall include, but shall not be limited to, furnishing the Indemnitor with any books, records, access to personnel and facilities and other information reasonably requested by all appropriate proceedingsthe Indemnitor and in the Claimant's possession or control. After the Indemnitor has notified the Claimant of Indemnitor's intention to undertake to defend or settle any such asserted liability, and for so long as the Indemnitor diligently pursues such defense, the Indemnitor shall not be liable for any additional legal expenses incurred by the Claimant in connection with any defense or settlement of such asserted liability; provided, however, that the Claimant shall be entitled, at its expense, to participate in the defense of such asserted liability and the negotiations of the settlement thereof, and the Indemnitor shall use commercially not settle any such Third Party claim without the consent of the Claimant unless the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, the Claimant; and provided further, however, that, if it reasonably appears that such Third Party claim, if proven could result in an aggregate Loss to the Claimant of greater than $500,000, then the Claimant shall be entitled to reimbursement of reasonable efforts legal fees and expenses incurred in connection with Claimant's participation in such defense and settlement discussions. If, upon receiving notice, the Indemnitor does not timely undertake to defend such matter to which the Claimant is entitled to indemnification hereunder, or fails diligently prosecute to pursue such proceedings to a final conclusion or settle defense, the Claimant may undertake such proceedings defense through counsel of its choice, at the discretion cost and expense of the Indemnitor. If , and the Indemnitor assumes the defense of any Claimant may settle such third-party Claimmatter, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay reimburse the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel Claimant for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses losses incurred by the Indemnitee Claimant in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretotherewith.

Third Party Claims. (a) In the event an Indemnified Person becomes aware of the assertion of any a third-party Claim claim that it believes may result in an indemnification claim against the Escrow Fund or the Indemnifying Person by or on behalf of an IndemniteeIndemnified Person, the Indemnitor will Indemnified Person shall promptly notify the Indemnifying Person in writing and in reasonable detail of such third-party claim, provided however that no delay in providing such notice shall affect an Indemnified Person’s rights hereunder, unless (and then only to the extent that) the Indemnifying Person is materially prejudiced thereby. The Indemnifying Person shall have the right, subject right in its sole discretion to the provisions set forth in this Section 11.05 to assume conduct the defense of same at and to settle or resolve any such Indemnitor’s expenseclaim (and the costs and expenses incurred by it in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the appointment and selection of counsel on behalf of Indemnifiable Damages for which the Indemnitee so long Indemnifying Person may seek indemnification pursuant to a claim made hereunder). The Sellers Representative or Purchaser, as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d)case may be, the Indemnitor will shall have the right to settle or compromise or take any corrective or remediation action receive copies of all pleadings, notices and communications with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, claim to the Indemnitee will extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its own cost and expense, to participate with the Indemnitor in the in, but not to determine or conduct, any defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are claim or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee settlement negotiations with respect to the defense third-party claim. However, except with the consent of the Sellers Representative or Purchaser, as the case may be (which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Sellers Representative or Purchaser, as the case may be, shall have objected within 15 days after a written request for such consent by Purchaser or Sellers Representative, as the case may be), no settlement thereofor resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Sellers Representative has consented to any such settlement or resolution, and neither the Sellers Representative nor any Seller shall have any power or authority to object (zincluding pursuant to Section 9.6 or any other provision of this Section 9) consider in good faith to the recommendations made amount of any claim by or on behalf of any Indemnified Person against the Indemnitee Escrow Fund for indemnity with respect theretoto such settlement or resolution.

Third Party Claims. (a) In the event Buyer becomes aware of a third party claim (a “Third Party Claim”) which Buyer reasonably believe may result in a claim for indemnification pursuant to this Article 10, Buyer shall promptly notify the Representative of such claim by delivering a Claim Notice; provided that failure to so notify shall not affect the right of the assertion of any third-party Claim by an IndemniteeIndemnified Parties to seek indemnification from the Escrow Fund hereunder, except to the Indemnitor will extent that the Indemnifying Parties are materially prejudiced thereby. Parent and Buyer shall have the right, subject right in their respective sole discretion to the provisions set forth in this Section 11.05 to assume conduct the defense of same at such Indemnitor’s expenseand to settle, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle adjust or compromise any such claim, and the Representative shall be entitled to participate in any negotiation of settlement, adjustment or take any corrective or remediation action compromise with respect to any such Claim by Third Party Claim. The Representative shall be provided with copies of all appropriate proceedingspleadings, material notices and material communications and Buyer shall notify, keep reasonably informed and provide reasonably regular updates to the Indemnitor Representative in respect of material developments relating to any Third Party Claim; provided that failure to do so shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at not affect the discretion right of the IndemnitorIndemnified Parties to seek indemnification from the Escrow Fund hereunder, except to the extent that the Indemnifying Parties are materially prejudiced thereby. If the Indemnitor assumes Buyer conducts the defense of any such third-party Third Party Claim, each Indemnifying Party shall make available to Buyer all witnesses, pertinent records, materials and information in such Indemnifying Party’s possession or under the Indemnitee will Indemnifying Party’s control relating thereto that may be entitled, at its own cost and expense, necessary to participate with the Indemnitor in the defense of any such Third Party Claim. If Parent or Buyer settles, adjusts or compromises settles, adjusts or compromises a Third Party Claim without the prior written consent of the Representative (which consent shall not be unreasonably conditioned, withheld or delayed), only such settlement, adjustment or compromise costs and expenses that are reasonable in amount shall be deemed to engage separate counsel be Losses indemnifiable under this Article 10; provided, however, that if Parent or Buyer settles, adjusts or compromises a Third Party Claim without the prior written consent of its choice the Representative (which consent shall not be unreasonably conditioned, withheld or delayed) and the Representative shall not have objected within 30 days after a written request for such purpose; provided that, notwithstanding the foregoingconsent by Parent or Buyer, the Indemnitor shall pay the reasonable entire costs and expenses of such defense (including reasonable attorneys’ fees and expenses) the settlement shall be deemed dispositive of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice validity or amount of such Indemnitee’s outside counselLoss. In the event that the Representative has consented to any such settlement, present such counsel with a conflict of interestadjustment or compromise, (iii) the named parties to such third-party Claim include both Indemnifying Parties or the Indemnitee and the Indemnitor and (A) the Indemnitee consenting Indemnifying Parties, as applicable, shall have reasonably concluded that there are no power or may be defenses available authority to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate object under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms any provision of this Section 11.05. Notwithstanding 10.5 to the foregoing, existence of the Indemnitee will have Losses or the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense amount of such Claimsettlement, and any costs adjustment or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretocompromise.

Third Party Claims. The “INDEMNIFIED PARTIES” will mean the BIOLASE INDEMNIFIED PARTIES and the P&G INDEMNIFIED PARTIES. If a claim by a third party is made against an INDEMNIFIED PARTY hereunder, and if such INDEMNIFIED PARTY intends to seek indemnity with respect thereto under this Section 14, such INDEMNIFIED PARTY will promptly notify BIOLASE, in the case of a P&G INDEMNIFIED PARTY, or P&G, in the case of a BIOLASE INDEMNIFIED PARTY (asuch PARTY to be notified, the “INDEMNIFYING PARTY”) In in writing of such claims setting forth such claims in reasonable detail, provided that failure of such INDEMNIFIED PARTY to give prompt notice as provided herein will not relieve the event of the assertion INDEMNIFYING PARTY of any third-party Claim of its obligations hereunder, except to the extent that the INDEMNIFYING PARTY is materially prejudiced by an Indemnitee, the Indemnitor such failure. The INDEMNIFYING PARTY will have the right**** after receipt of such notice to undertake, through counsel of its own choosing, subject to the reasonable approval of such INDEMNIFIED PARTY, and at the INDEMNIFYING PARTY’S expense, the settlement or defense thereof, and the INDEMNIFIED PARTY will cooperate with it in connection therewith; provided, however, that the INDEMNIFIED PARTY may participate in such settlement or defense through counsel chosen by such INDEMNIFIED PARTY, provided that the fees and expenses of such counsel will be borne by such INDEMNIFIED PARTY. If the INDEMNIFYING PARTY will assume the defense of a claim, it will not settle such claim without the prior written consent of the INDEMNIFIED PARTY, (a) unless such settlement includes as an unconditional term thereof the giving by the claimant of a release of the INDEMNIFIED **** Certain confidential information contained in this document, marked with four asterisks, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. PARTY from all liability with respect to such claim or (b) if such settlement involves the imposition of equitable remedies or the imposition of any material obligations on such INDEMNIFIED PARTY other than financial obligations for which such INDEMNIFIED PARTY will be indemnified hereunder. If the INDEMNIFYING PARTY will assume the defense of a claim, the fees of any separate counsel retained by the INDEMNIFIED PARTY will be borne by such INDEMNIFIED PARTY unless there exists a conflict between them as to their respective legal defenses (other than one that is of a monetary nature), in which case the INDEMNIFIED PARTY will be entitled to retain separate counsel, the reasonable fees and expenses of which will be reimbursed by the INDEMNIFYING PARTY. If the INDEMNIFYING PARTY does not notify the INDEMNIFIED PARTY within **** after the receipt of the INDEMNIFIED PARTY’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the INDEMNIFIED PARTY will have the right to contest, settle or compromise the claim but will not thereby waive any right to indemnity therefore pursuant to this SECOND AGREEMENT. The indemnification provisions set forth in this Section 11.05 to assume 14 are the defense sole and exclusive means of same at such Indemnitor’s expense, including the appointment and selection recovery of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee money damages with respect to the defense and settlement thereofmatters covered herein, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoexcept for fraud.

Third Party Claims. (a) In the event Promptly after receipt by an Indemnitee of written notice of the assertion or the commencement of any third-Litigation by a third party for which the Indemnitee is entitled to indemnification from the Indemnitor under Section 10.1 or Section 10.2, the Indemnitee shall provide a Notice of Claim to the Indemnitor, and thereafter shall keep the Indemnitor reasonably informed with respect thereto; provided, however, that failure of the Indemnitee to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnitor is materially prejudiced thereby. In case any Litigation shall be commenced against any Indemnitee by an Indemniteea third party, the Indemnitor will shall be entitled to participate in such Litigation and, at its option, assume the defense thereof with counsel reasonably satisfactory to the Indemnitee, at the Indemnitor’s sole expense, provided, however, that the Indemnitor shall not have the right, subject to the provisions set forth in this Section 11.05 right to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee Litigation if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are one or may be more legal or equitable defenses available to such Indemnitee that it which are different from or additional in addition to those available to the Indemnitor, or (B) and, in the reasonable opinion of the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common , counsel for the Indemnitor could not adequately represent the interests of the Indemnitee and because such interests could be in conflict with those of the Indemnitor due Indemnitor, (ii) such Litigation is reasonably likely to actual have an adverse effect on any other matter beyond the scope or potential differing interests between limits of the Indemnitor and such Indemniteeindemnification obligation of the Indemnitor, or (iviii) the Indemnitor fails to assume such shall not have assumed the defense or engage counsel reasonably satisfactory to of the Indemnitee, in each case, Litigation in a timely manner; provided, further, that, for the avoidance fashion (but in any event within thirty days of doubt, notice of such Claim and the prosecution and negotiation thereof shall be controlled by Litigation). If the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to shall assume the defense of such Claimany Litigation, the Indemnitee shall be entitled to participate in any Litigation at its expense, and any costs or expenses incurred the Indemnitor shall not settle such Litigation unless the settlement shall include as an unconditional term thereof the giving by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to claimant or the terms of this Article XI. If the Indemnitor has assumed the defense plaintiff of a third-party Claim pursuant to this Section 11.05, it will (x) keep full and unconditional release of the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee from all liability with respect to the defense and settlement thereofmatters that are subject to such Litigation, and (z) consider in good faith the recommendations made or otherwise shall have been approved by the Indemnitee with respect theretoIndemnitee.

Third Party Claims. (a) In the event Parent or the Surviving Corporation receives written notice of the assertion of any a third-party Claim by an Indemniteeclaim (a "Third Party Claim") which Parent reasonably expects may result in a demand against the Escrow Fund, Parent shall provide the Indemnitor will Stockholder Agent with reasonably prompt written notice thereof. The Stockholder Agent, as representative for the stockholders of the Company, shall have the rightright to participate in or, subject by giving written notice to the provisions set forth in this Section 11.05 Parent, to assume the defense of same any Third Party Claim at such Indemnitor’s expense, including the appointment and selection of counsel on behalf expense of the Indemnitee so long as such Escrow Fund and by counsel is selected by the Stockholder Agent (which counsel must be reasonably acceptable satisfactory to the Indemnitee. Subject to Section 11.05(dParent), and Parent will cooperate in good faith (and shall be permitted to participate at Parent's expense) in such defense; provided, however, that the Indemnitor will have the right Stockholder Agent shall not be entitled to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion assume control of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Third Party Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if that (i) could reasonably be expected to have any impact on the Indemnitor consents in writing to paying such costs and expensesongoing operations or goodwill of the Surviving Corporation or Parent, the Intellectual Property or the Software or (ii) could reasonably be expected to result in Losses in excess of the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee Escrow Fund. Parent shall have reasonably concluded the right in its sole discretion to settle any Third Party Claim contemplated by clause (i) or (ii) above; provided, however, that there are if Parent settles any such Third Party Claim without the Stockholder Agent's written consent (which consent shall not be unreasonably withheld or delayed), Parent may be defenses available to such Indemnitee that are different from or additional to those available not make a claim against the Escrow Fund with respect to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards amount of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and Losses incurred by Parent in such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely mannersettlement; provided, further, that, for that if the avoidance of doubtStockholder Agent settles any Third Party Claim without Parent's written consent (which consent shall not be unreasonably withheld or delayed), such Claim and the prosecution and negotiation thereof settlement shall be controlled by null and void. In the Indemnitor subject event that the Stockholder Agent has consented to the other terms of this Section 11.05. Notwithstanding the foregoingany such settlement, the Indemnitee will Stockholder Agent shall have the right no power or authority to defend object under any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms provision of this Article XI. If VIII to the Indemnitor has assumed amount of any claim by Parent against the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee Escrow Fund with respect to the defense and amount of Losses incurred by Parent in such settlement thereof, and (z) consider in good faith the recommendations made as consented to by the Indemnitee with respect theretoStockholder Agent.

Third Party Claims. (a) In Promptly after the event receipt by any Parent Indemnitee of notice of the assertion commencement of any third-party Claim action against such Parent Indemnitee by an a third party, such Parent Indemnitee shall give the Shareholder Representative written notice thereof in reasonable detail in light of the circumstances then known to such Parent Indemnitee. The failure to give such notice shall not relieve the Shareholder Representative from any obligation hereunder except where, and then solely to the Indemnitor will have extent that, such failure actually and materially prejudices the right, rights of the Shareholder Representative. If the claim (x) (I) is subject to the provisions set forth Basket and in this Section 11.05 excess thereof and (II) is not more than (or is not reasonably expected to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf be more than) 110% of the Indemnitee so long as such counsel then-remaining Indemnity Escrow Amount or (y) is reasonably acceptable not subject to the Indemnitee. Subject to Section 11.05(d)Basket or limited by the Indemnity Escrow Amount, the Indemnitor will Shareholder Representative shall have the right to settle defend such claim, with such costs to be deducted from the Indemnity Escrow and with counsel of its choice reasonably satisfactory to Parent Indemnitee, provided that (i) such claim does not seek an injunction or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedingsother equitable relief as a primary remedy, and is not a criminal claim and (ii) the Indemnitor shall use commercially reasonable efforts to diligently prosecute Shareholder Representative conducts the defense of such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitorclaim actively and diligently. If the Indemnitor Shareholder Representative assumes the defense of any such thirdclaim, Parent Indemnitee agrees to reasonably cooperate in such defense so long as Parent Indemnitee is not materially prejudiced thereby. So long as the Shareholder Representative is conducting the defense of such claim actively and diligently, Parent Indemnitee may retain separate co-party Claim, the Indemnitee will be entitled, counsel at its own sole cost and expense, to expense and may participate with the Indemnitor in the defense of such claim. Neither the 56 Shareholder Representative nor any Parent Indemnitee will consent to the entry of any judgment or enter into any settlement with respect to such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding claim without the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) prior written consent of the Indemnitee if other (i) the Indemnitor consents which consent will not be unreasonably withheld or delayed, provided that such consent shall be granted in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel connection with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and any settlement (A) containing a full release of the Indemnitee shall have reasonably concluded that there are or may be defenses available to party from whom such Indemnitee that are different from or additional to those available to the Indemnitor, or consent is so requested and (B) in the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards case of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such a consent from a Parent Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled involving only monetary damages fully paid by the Indemnitor subject to Shareholders or from the other terms of this Section 11.05Indemnity Escrow Amount). Notwithstanding the foregoing, a Parent Indemnitee shall be entitled to participate with separate counsel at the expense of the Company Equityholders if (i) so requested by Shareholder Representative or (ii) in the reasonable opinion of counsel to Parent Indemnitee, a conflict or potential conflict exists between the Company Equityholders and Parent Indemnitee. In the event the claim is subject to recovery only from the Indemnity Escrow Amount but is more than (or is reasonably expected to be more than) 110% of the amount then remaining thereunder, or Shareholder Representative does not or ceases to conduct the defense of such claim actively and diligently, Parent Indemnitee will have may defend against and, with the right prior written consent of the Shareholder Representative (which consent shall not be unreasonably withheld or delayed), consent to defend the entry of any judgment or enter into any settlement with respect to, such third-claim. Regardless of which party Claim until such time as the Indemnitor agrees to shall assume the defense of such Claimclaim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject each party shall provide to the terms of this Article XI. If the Indemnitor has assumed the defense of other parties on request all information and documentation reasonably necessary to support and verify any Losses which give rise to such claim for indemnification and shall provide reasonable access to all books, records and personnel in their possession or under their control which would have a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of bearing on such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoclaim.

Third Party Claims. (a) In the event that a Parent Indemnified Party becomes aware of the assertion of any third-a third party Claim by (a “Third Party Claim”) which such Parent Indemnified Party reasonably believes may result in an Indemniteeindemnification claim pursuant to this Article VIII, such Parent Indemnified Party shall notify the Indemnitor will have Representative (or, in the rightevent indemnification is being sought hereunder directly from a Company Stockholder, subject such Company Stockholder) of such claim pursuant to the provisions procedures set forth in this Section 11.05 to assume 8.5, and the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel Representative shall be entitled on behalf of the Indemnitee so long as Company Indemnifying Parties (or, in the event indemnification is being sought hereunder directly from a Company Stockholder, such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(dCompany Stockholder shall be entitled), at their expense, to participate in, but not to determine or conduct, the Indemnitor will defense of such Third Party Claim, and shall have the right to settle or compromise or take any corrective or remediation action receive copies of all pleadings, notices, filings, documents and other correspondences with respect to such Third Party Claim (except to the extent outside counsel to the Parent Indemnified Party reasonably determines that the disclosure of such correspondences could jeopardize the privileged nature of any such Claim by all appropriate proceedingsdocuments). The Parent Indemnified Party shall have the right in its sole discretion to conduct the defense of, and to settle, any such Third Party Claim; provided, however, that the Indemnitor Parent Indemnified Party shall use commercially reasonable efforts consult in good faith with the Representative with respect to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Third Party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that except with the consent of the Representative (or, in the event indemnification is being sought hereunder directly from a Company Stockholder, such Company Stockholder), no settlement of any such Third Party Claim with third party claimants shall be determinative of the amount of Losses relating to such matter nor shall it affect the Representative’s power and authority to object with respect to such Third Party Claim pursuant to Section 8.5. If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for the avoidance of doubtLosses hereunder, such Claim and the prosecution and negotiation thereof shall be controlled then any amounts paid, sustained, suffered or incurred by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the Parent Indemnified Parties in defense of such Third Party Claim, and regardless of the outcome of such claim, shall be deemed Losses hereunder. In the event that the Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) has consented to any costs such settlement with respect to an indemnification claim under Section 8.2(a), the Company Stockholders shall not have any power or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject authority to indemnification in accordance with and subject to the terms object under any provision of this Article XI. If VIII to the Indemnitor has assumed amount of any Third Party Claim by Parent against the defense of a third-party Claim pursuant to this Section 11.05Indemnity Escrow Fund, it will (x) keep or against the Indemnitee advised of Company Stockholders directly, as the status of such third-party Claim and the defense thereof on a reasonably current basiscase may be, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretosuch settlement.

Third Party Claims. (a) In the event Parent becomes aware of a third party claim (a "THIRD PARTY CLAIM") which Parent reasonably believes may result in a demand for indemnification pursuant to this ARTICLE VII, Parent shall promptly notify the assertion Escrow Agent and the Stockholder Representative of any third-party Claim by an Indemnitee, the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel claim. The Stockholder Representative on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d)Stockholders, the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate in, but not to determine or conduct, the defense of such Third Party Claim. Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any such claim; provided, however, that in the event Parent does not notify the Stockholder Representative that it is assuming the defense of such claim within thirty (30) days after receipt of notice of the claim from the Indemnified Party, the Stockholder Representative shall have the right to determine or conduct, the defense of such Third Party Claim with counsel reasonably acceptable to the Parent; provided, further that except with the Indemnitor consent of the Stockholder Representative, no settlement of any such Third Party Claim with third party claimants shall be determinative of any right to indemnification under SECTION 7.2 or the amount of Losses relating to such matter. In the event that the Stockholder Representative has consented to any such settlement, the Stockholders shall have no power or authority to object to the amount agreed by the Stockholder Representative to be payable pursuant to SECTION 7.2 in respect of such Third Party Claim. The party controlling the defense of any such Third Party Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to keep the other terms of this Section 11.05. Notwithstanding relevant party hereto (the foregoing, the Indemnitee will have the right to defend any such third"NON-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (xCONTROLLING PARTY") keep the Indemnitee advised of the status of such third-party Third Party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) shall consider in good faith the all recommendations made by the Indemnitee Non-controlling Party with respect thereto.

Third Party Claims. (a) In the event Acquirer becomes aware of the assertion of any a third-party Claim claim that Acquirer believes may result in a claim for indemnification pursuant to this Article VIII by or on behalf of an IndemniteeIndemnified Person, the Indemnitor will Acquirer shall have the rightright in its sole discretion to conduct the defense of and to settle or resolve any such claim (and the costs and expenses incurred by Acquirer in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which Acquirer may seek indemnification pursuant to a claim made hereunder and such costs and expenses shall constitute Indemnifiable Damages subject to indemnification under Section 8.2 whether or not it is ultimately determined that the third party claim itself is indemnifiable under Section 8.2, but for the avoidance of doubt, in all cases subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, other limitations on liability contained herein (including the appointment Threshold and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable any cap amount, in each case that applies to the Indemniteeunderlying indemnifiable matter)). Subject to Section 11.05(d), the Indemnitor will The Stockholders’ Agent shall have the right to settle or compromise or take any corrective or remediation action receive copies of all pleadings, notices and communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and subject to execution by the Stockholders’ Agent of a reasonable non-disclosure agreement (which non-disclosure agreement shall not prohibit the Stockholders’ Agent from communicating any such Claim by all appropriate proceedingsinformation on a need-to-know basis with the Effective Time Holders, and provided that any such recipients are obligated to keep such information confidential) to the Indemnitor extent that such materials contain confidential or proprietary information; provided, that Acquirer shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of provide any such third-party Claim, privileged information to the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor Stockholders’ Agent in the defense of a manner that would not adversely affect any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor applicable privileges. Acquirer shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised Stockholders’ Agent reasonably informed of the status of such third-party Claim claim and the defense thereof on a reasonably current basis, and (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the any recommendations made by the Indemnitee Stockholders’ Agent with respect theretoto such third-party claim. In the event of settlement or resolution by Acquirer of any claim that gives rise to a claim against the Escrow Fund by or on behalf of an Indemnified Person, the amount of Indemnifiable Damages relating to such matter shall be deemed determined only if the Stockholders’ Agent has consented in writing to any such settlement or resolution, or if the Stockholders’ Agent unreasonably withholds, conditions or delays giving such consent to such settlement or resolution (either, an “Indemnifiable Settlement”). Such consent of the Stockholders’ Agent shall be deemed to have been given unless the Stockholders’ Agent shall have objected within 30 days after a written request for such consent by Acquirer. Neither the Stockholders’ Agent nor any Effective Time Holder shall have any power or authority to object under Section 8.5 or any other provision of this Article VIII to the amount of Indemnifiable Damages with respect to an Indemnifiable Settlement. For the avoidance of doubt, Section 5.17(d) and not this Section 8.8 shall govern all Tax Claims.

Third Party Claims. (ai) In Other than a Third Party Claim that relates to Taxes (such Third Party Claim being governed exclusively by Section 5.14(e)(iii)), the event of the assertion of any third-party Claim Indemnitor shall be entitled, by written notice to an Indemnitee, to inform such Indemnitee that the Indemnitor desires to assume the defense or prosecution of any Third Party Claim and any litigation resulting therefrom with counsel reasonably acceptable to the Indemnitee and at the Indemnitor’s expense; provided, that the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 not be entitled to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee claim if (i) the Indemnitor consents claim for indemnification relates to or arises in writing to paying connection with any action in respect of a criminal charge against such costs and expenses, Indemnitee; (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of claim seeks an injunction or equitable relief against such Indemnitee’s outside counsel, present such counsel with a conflict of interest, ; (iii) the Indemnitor fails to assume the defense of such claim reasonably promptly following notice thereof; or (iv) the Indemnitor does not confirm, assuming the facts asserted in the notice of such claim are true, its obligation to indemnify and pay Damages for such claim; provided, further, that notwithstanding the foregoing, Torch shall be entitled to assume and control the defense or prosecution of any Third Party Claim and any litigation resulting therefrom with respect to the matters set forth on Section 5.14 of the Torch Disclosure Letter. An Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of such Third Party Claim; provided, however, that such Indemnitee shall be entitled, at the Indemnitor’s expense, to retain one firm of separate counsel of its own choosing (along with any one required local counsel) if (A) the Indemnitor and the Indemnitee so mutually agree in writing; (B) the Indemnitor fails within a reasonable time to retain counsel reasonably satisfactory to such Indemnitee (whose acceptance shall not be unreasonably withheld, conditioned, or delayed); (C) such Indemnitee shall have reasonably concluded based on the written advice of outside legal counsel that there may be legal defenses available to it that are different from or in addition to those available to the Indemnitor; or (D) the named parties to in any such third-party Claim proceeding (including any impleaded parties) include both the Indemnitee and the Indemnitor and (A) representation of both sets of parties by the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside same counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between reasonably foreseeable conflicts of interest based on the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance written advice of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretooutside legal counsel.

Third Party Claims. (a) In the event Acquiror becomes aware of the assertion of any a third-party Claim claim which Acquiror believes may result in a claim against the Escrow Fund or an Effective Time Holder by or on behalf of an IndemniteeIndemnified Person, Acquiror shall promptly notify the Indemnitor will Shareholders' Agent of such third-party claim, provided however that no delay in providing such notice shall affect an Indemnified Person's rights hereunder, unless (and then only to the extent that) the Effective Time Holders are materially prejudiced thereby. Acquiror shall have the right, subject right in its sole discretion to the provisions set forth in this Section 11.05 to assume conduct the defense of same at and to settle or resolve any such Indemnitor’s expenseclaim (and the costs and expenses so incurred by Acquiror in connection with such defense, settlement or resolution (including reasonable attorneys' fees, other professionals' and experts' fees and court or arbitration costs) shall be included in the appointment and selection Indemnifiable Damages for which Acquiror may seek indemnification pursuant to a claim made hereunder). The Shareholders' Agent shall reasonably cooperate with Acquiror in the defense of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d)third-party claim, the Indemnitor will shall have the right to settle or compromise or take any corrective or remediation action receive copies of all pleadings, notices and communications with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, claim to the Indemnitee will extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its own cost and expense, to participate with the Indemnitor in the in, but not to determine or conduct, any defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are claim or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee settlement negotiations with respect to the defense third-party claim. However, except with the consent of the Shareholders' Agent (which consent shall not be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless the Shareholders' Agent shall have objected within 15 days after a written request for such consent by Acquiror), no settlement thereofor resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter (but other than settlement or resolution entered into at any time following the lapse of three (3) months after the Closing Date with any Company Optionholder that has not executed the letter in substantially the form of Exhibit H prior to or on Closing or such other form of reasonably acceptable form of release). In the event that the Shareholders' Agent has consented to any such settlement or resolution, and neither the Shareholders' Agent nor any Effective Time Holder shall have any power or authority to object (zincluding pursuant to Section 8.5 or any other provision of this Article VIII) consider in good faith to the recommendations made amount of any claim by the Indemnitee or on behalf of any Indemnified Person for indemnity with respect theretoto such settlement or resolution.

Third Party Claims. (a) In the event of the assertion of any third-party Claim by an IndemniteeExcept as otherwise provided in paragraph (c) below, the Indemnitor will have the right, subject ICL Principals may elect to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedingsdefend, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its ICL Principals' own cost expense and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage ICL Principals' own counsel reasonably satisfactory to the Indemnitee, in each case, in any Third-Party Claim; provided that (i) the ICL Principals provide the Indemnitee with reasonable evidence that the ICL Principals will have the financial resources to defend against such claim and fulfill their indemnification obligations hereunder; and (ii) the giving of a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled Defense Notice (as defined below) by the Indemnitor subject ICL Principals shall constitute an acknowledgment by the ICL Principals of their obligation to indemnify the other Indemnitee with respect to such Third-Party Claim in accordance with the terms of this Section 11.05ARTICLE IX. Notwithstanding If the foregoingICL Principals elect to compromise or defend a Third-Party Claim, the ICL Principals shall, within thirty (30) days of their receipt of the notice provided pursuant to SECTION 9.2(a) hereof (or sooner, if the nature of such Third-Party Claim so requires), notify the related Indemnitee will have of their intent to do so (A "DEFENSE NOTICE"), and such Indemnitee shall reasonably cooperate in the right compromise of, or defense against, such Third-Party Claim. The ICL Principals shall be responsible for the payment of such Indemnitee's actual reasonable out-of-pocket expenses (including reasonable legal and accounting fees) incurred in connection with such cooperation, and such expenses shall constitute Damages incurred or suffered by Parent within the meaning of SECTION 9.1(a) hereof. After notice from the ICL Principals, to defend any such third-party Claim until such time as the Indemnitor agrees an Indemnitee of their election to assume the defense of such a Third-Party Claim, the ICL Principals shall not be liable to such Indemnitee under this ARTICLE IX for any legal expenses subsequently incurred by such Indemnitee in connection with the defense thereof. If the ICL Principals elect not to compromise or defend against a Third-Party Claim, or fail to notify an Indemnitee of their election as provided in this SECTION 9.3, such Indemnitee may pay, compromise or defend such Third-Party Claim on behalf of and for the account and risk of the ICL Principals (and any costs amount paid or expenses incurred by the Indemnitee in connection therewith will shall constitute Damages (within the meaning of SECTION 9.1(a) hereof) incurred or suffered by Parent. The ICL Principals may not consent to entry of any judgment or enter into any settlement without the written consent of each related Indemnitee (which consent shall not be Losses unreasonably withheld), unless such judgment or settlement provides solely for money damages or other money payments for which such Indemnitee is entitled to indemnification hereunder and subject includes as an unconditional term thereof the giving by the claimant or plaintiff to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense such Indemnitee of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status release from all liability in respect of such thirdThird-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoParty Claim.

Third Party Claims. (a) In the event Acquiror becomes aware of the assertion of any a third-party Claim claim which Acquiror in good faith believes may result in a claim for Indemnifiable Damages by or on behalf of an IndemniteeIndemnified Person, the Indemnitor will Acquiror shall have the rightright in its sole discretion to conduct the defense of and to settle or resolve any such claim; provided, that, if such third party claim is not an Exempt Claim and the Securityholders’ Agent first irrevocably agrees in writing that (A) the matters alleged in such third party claim are within the scope of and are subject to the indemnification provisions set forth in this Section 11.05 Sections 8.1 and 8.2 and (B) it will not contest the Company Stockholders’ obligation to assume provide indemnification with respect to such third-party claim then: the defense of same at Acquiror will not enter into any settlement with respect to such Indemnitor’s expense, including third-party claim without the appointment and selection of counsel on behalf prior written consent of the Indemnitee so long as Securityholders’ Agent, which consent shall not be unreasonably withheld, conditioned or delayed. It is hereby clarified that the costs and expenses incurred by Acquiror in connection with such counsel is reasonably acceptable defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which Acquiror may obtain indemnification pursuant to the Indemniteea claim made hereunder. Subject to Section 11.05(d), the Indemnitor will The Securityholders’ Agent shall also have the right to settle or compromise or take any corrective or remediation action receive copies of all pleadings, notices and communications with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, claim to the Indemnitee will extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its own cost and expense, to participate with the Indemnitor in the in, but not to determine or conduct, any defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are claim or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee settlement negotiations with respect to the defense and third-party claim. In the event that the Securityholders’ Agent has consented to any such settlement thereofor resolution, and (z) consider in good faith neither the recommendations made Securityholders’ Agent nor any Company Securityholder shall have any power or authority to object under Section 8.4 or any other provision of this ARTICLE 8 to the amount of any claim by the Indemnitee or on behalf of any Indemnified Person for Indemnifiable Damages for indemnity with respect theretoto such settlement or resolution. In the event that the Securityholders’ Agent has not consented to any such settlement or resolution, no such settlement or resolution by Acquiror of any claim that gives rise to a claim for Indemnifiable Damages by or on behalf of an Indemnified Person shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter.

Third Party Claims. In order for a party (athe “indemnitee”) In to be entitled to any indemnification provided for under this Agreement with respect to, arising out of, or involving a claim or demand made by any Person against the event indemnitee (a “Third-Party Claim”), such indemnitee must notify the party from whom indemnification hereunder is sought (the “indemnitor”) in writing of the assertion Third-Party Claim no later than thirty (30) days after such claim or demand is first asserted. Such notice shall state in reasonable detail the amount or estimated amount of such claim, and shall identify the specific basis (or bases) for such claim, including the representations, warranties, covenants or obligations in this Agreement alleged to have been breached. Failure to give such notification shall not affect the indemnification provided hereunder, except and only to the extent the indemnitor shall have been materially prejudiced as a result of such failure. Thereafter, the indemnitee shall deliver to the indemnitor, without undue delay, copies of all notices and documents (including court papers received by the indemnitee) relating to the Third-Party Claim so long as any thirdsuch disclosure could not reasonably be expected to have an adverse effect on the attorney-party client or any other privilege that may be available to the indemnitee in connection therewith. The indemnitor has the right to elect to assume and control the defense of a Third-Party Claim with counsel selected by the indemnitor by providing written notice thereof to the indemnitee within thirty (30) days of the receipt of notice of such Third-Party Claim from the indemnitee; provided, however, that (i) defense of such Third-Party Claim by an Indemniteethe indemnitor does not, in the Indemnitor will reasonable judgment of the indemnitee, have a material adverse effect on the rightindemnitee, subject (ii) the indemnitor expressly agrees in writing to be fully responsible for all Losses relating to such Third-Party Claim and (iii) such Third-Party Claim solely seeks (and continues to seek) monetary damages and not include criminal charges (the provisions conditions set forth in this Section 11.05 clauses (i) through (iii) are, collectively, the “Litigation Conditions”). If the indemnitor assumes such defense, the indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnitor, it being understood that the indemnitor shall control such defense and that the indemnitor will not be liable for any legal expenses subsequently incurred by the indemnitee in connection with the defense of such Third-Party Claim; provided, however, that if (x) any of the Litigation Conditions ceases to be met, or (y) the indemnitor fails to take reasonable steps necessary to defend diligently such Third-Party Claim, the indemnitee may assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedingsThird-Party Claim, and the Indemnitor shall use commercially reasonable efforts indemnitor will be liable for all expenses paid or incurred in connection with such defense (subject to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitorlimitations in this Article 9). If the Indemnitor indemnitor does not assume the defense of any Third-Party Claim, the indemnitee may continue to defend such claim and the indemnitor may still participate in, but not control, the defense of such Third-Party Claim at the indemnitor’s sole cost and expense. If the indemnitor so assumes the defense of any such thirdThird-party Party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate indemnitee shall reasonably cooperate with the Indemnitor indemnitor in the defense or prosecution thereof. Such cooperation shall include, at the expense of the indemnitor, the retention and (upon the indemnitor’s request) the provision to the indemnitor of records and information which are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any such Claim and to engage separate counsel of its choice for such purpose; material provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if hereunder. The indemnitee (i) may settle, compromise or discharge in good faith any Third-Party Claim, the Indemnitor consents in writing to paying such costs defense of which has not been assumed or is no longer being conducted by the indemnitor, without the indemnitor’s prior written consent; and expenses, (ii) shall agree to any settlement, compromise or discharge of a Third-Party Claim that the use indemnitor may recommend and that satisfies the criteria set forth in the following sentence. The indemnitor shall not, without the written consent of counsel chosen by the Indemnitor indemnitee, enter into any settlement, compromise or discharge or consent to represent the Indemnitee would, based entry of any judgment that may be reasonably expected to have a material adverse effect on the good faith advice business of such Indemnitee’s outside counselindemnitee, present such counsel with that involves a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are customer or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised supplier of the status of such third-party Claim and indemnitee or that imposes any obligation or restriction upon the defense thereof on a reasonably current basis, indemnitee (y) reasonably consult with the Indemnitee including with respect to any injunctive or equitable relief) or does not include as an unconditional term thereof the defense and settlement thereof, and (z) consider in good faith the recommendations made giving by the Indemnitee each claimant or plaintiff to such indemnitee of a release from all liability with respect theretoto such Third-Party Claim.

Third Party Claims. If either party, including its distributors, affiliates or their respective officers, directors, employees, servants or agents (a) In in each case an “Indemnitee”), receives any written Claim which such Indemnitee believes is the subject of indemnity hereunder by the other party hereto (an “Indemnitor”), the Indemnitee shall promptly give notice thereof to the Indemnitor, provided that the failure to give timely notice to the Indemnitor as contemplated hereby shall not release the Indemnitor from [***] Indicates material that has been omitted and for which confidential treatment has been requested. All such omitted material has been filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. any liability to the Indemnitee unless the Indemnitor demonstrates that the defense of such Claim is prejudiced by such failure (and, in the event of the assertion of any third-party Claim by an Indemniteesuch late notice, the Indemnitor will is only responsible for costs incurred after the notice is provided and the Indemnitee is responsible for any increase in costs related to its late notice). The Indemnitor shall have the right, subject by prompt notice to the provisions set forth in this Section 11.05 Indemnitee, to assume the defense of same such Claim at such Indemnitor’s expenseits cost, including the appointment and selection of with counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable satisfactory to the Indemnitee. Subject to Section 11.05(d)If the Indemnitor does not so assume the defense of such Claim or, having done so, does not diligently pursue such defense, the Indemnitor will have Indemnitee may assume the right to settle or compromise or take any corrective or remediation action defense, with respect to any such Claim by all appropriate proceedingscounsel of its choice, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings but at the discretion cost of the Indemnitor. If the Indemnitor so assumes the defense defense, it shall have absolute control of any such third-party Claim, the litigation; the Indemnitee will be entitledmay, nevertheless, participate therein through counsel of its choice and at its own cost and expense, to participate with the Indemnitor in cost. The party not assuming the defense of any such Claim shall render all reasonable assistance to the party assuming such defense, with all reasonable pre-approved out-of-pocket costs of such assistance (which shall not include any costs of time spent) for the account of the Indemnitor. No such Claim shall be settled other than by the party defending the same, and to engage separate counsel then only with the consent of its choice for such purposethe other party, which consent shall not be unreasonably withheld; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) that the Indemnitee shall have reasonably concluded that there are no obligation to consent to any settlement of any such Claim which imposes on the Indemnitee any liability or may obligation which cannot be defenses available to such Indemnitee that are different from assumed or additional to those available to performed in full by the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect thereto.

Third Party Claims. (a) In the event that Thermage receives notice of the assertion of any a third-party Claim by an Indemniteeclaim (“Third Party Claim”) which would reasonably be expect to result in a demand against the Indemnification Escrow Fund, Thermage shall promptly notify the Indemnitor will have Securityholder Agent of such Third Party Claim; provided, however, that the right, subject failure to give prompt notice shall not affect the indemnification provided hereunder except to the provisions set forth in this Section 11.05 to assume extent the defense of same at such Indemnitor’s expenseSecurityholder Agent, including the appointment and selection of counsel on behalf of the Indemnitee so long Indemnifying Parties, has been actually prejudiced as a result of such counsel is reasonably acceptable failure. The notice of Third Party Claim shall include, based on the information then available to the Indemnitee. Subject to Section 11.05(d)Thermage, the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially a summary in reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion detail of the Indemnitorbasis for the Third Party Claim and a reasonable estimate of the Losses. If the Indemnitor assumes The Securityholder Agent may, at his election, undertake and conduct the defense of any such third-party Third Party Claim. In such case, the Indemnitee will be entitled, at its own cost and expense, Indemnified Party may continue to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel Third Party Claim, provided, however, that following the Securityholder Agent’s assumption of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses defense of such defense (including reasonable attorneys’ fees and expenses) of Third Party Claim, all legal or other expenses subsequently incurred by the Indemnitee if Indemnified Party shall be borne by the Indemnified Party. If (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees Securityholder Agent has failed to assume the defense of such ClaimThird Party Claim within thirty (30) days of the Thermage’s delivery of notice of such Third Party Claim to the Securityholder Agent, and any costs or expenses (ii) the amounts reasonably expected to be incurred by the Indemnitee in connection therewith with such Third Party Claim and all other outstanding claims on the Indemnification Escrow Fund exceeds the amount remaining in the Indemnification Escrow Fund, (iii) the Third Party Claim includes a claim for injunctive relief that is material to Thermage’s business, (iv) a conflict between the Indemnified Party and the Indemnifying Party arises or (v) if the litigation or outcome of such Third Party Claim would reasonably be expected to impact Thermage’s or the Surviving Company’s business in addition to the monetary damages paid in the claims (including, without limitation, any claim involving the Reliant Intellectual Property Rights), then Thermage shall have the right to assume the defense of such Third Party Claim on behalf of the Indemnified Party. The Indemnified Party and the Securityholder Agent will render to each other such assistance as may reasonably be Losses hereunder required of each other in order to insure proper and adequate defense of any Third Party Claim subject to indemnification this Section 8.4(h). To the extent that the Indemnified Party or the Securityholder Agent does not participate in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-particular Third Party Claim, the party so proceeding with such Third Party Claim pursuant shall keep the other party informed of all material developments and events relating to such Third Party Claim. No Third Party Claim subject to this Section 11.058.4(h) shall be settled, it will (x) keep adjusted or compromised without the Indemnitee advised written consent of both the Indemnified Party and the Securityholder Agent, which consent shall not be unreasonably withheld, conditioned or delayed. The Escrow Agent shall not disburse any portion of the status Escrow Fund to any third party except in accordance with joint written instructions received from Thermage and the Securityholder Agent. In the event that the Securityholder Agent has consented to any settlement, neither the Securityholder Agent nor any Indemnifying Person shall have any power or authority to object under Section 8.4(f) or any other provision of this Article VIII to any claim by any Indemnified Person against the Indemnification Escrow Fund for indemnity in the amount of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretosettlement.

Third Party Claims. (a) In the event that any Purchaser Indemnitee desires to make a claim against any Seller under Section 9.2 above in connection with any action, suit, proceeding or demand at any time instituted against or made upon such Purchaser Indemnitee by any third party for which such Purchaser Indemnitee may seek indemnification hereunder (a “Third Party Claim”), such Purchaser Indemnitee shall promptly deliver notice of such Third Party Claim and of such Purchaser Indemnitee’s claim for indemnification with respect thereto to the assertion Sellers Representative or, if such Third Party Claim is an Individual Seller Claim, to the individual Seller against whom such Individual Seller Claim is made, provided, that the failure by such Purchaser Indemnitee to notify the Sellers Representative of any third-party such Third Party Claim by an or any individual Seller of any Individual Seller Claim, as the case may be, shall not adversely affect such Purchaser Indemnitee’s rights to be indemnified hereunder except to the extent that the indemnifying Seller or Sellers are materially prejudiced thereby. Within thirty (30) days (or, where circumstances require, such shorter time as the Purchaser Indemnitee may reasonably specify as being required under the circumstances) after receipt of notice of a Third Party Claim from a Purchaser Indemnitee, the Indemnitor will have Sellers Representative or the rightindividual Seller, subject to as the provisions set forth in this Section 11.05 to assume the defense of same at case may be, may notify such Indemnitor’s expense, including the appointment and selection of counsel on behalf Purchaser Indemnitee of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle indemnifying Sellers’ or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such IndemniteeSeller’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees election to assume the defense of such Third Party Claim, in which case the indemnifying Sellers or Seller shall have the authority to negotiate, compromise and any costs or expenses incurred by settle such Third Party Claim, if the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect thereto.following conditions are satisfied:

Third Party Claims. If a Claim by a third party is made against an Indemnified Party for which the Indemnified Party intends to seek indemnity under this Article VIII, such Indemnified Party promptly shall (ai) In in the event case of indemnification sought by a Seller Indemnified Party, notify Buyer or (ii) in the case of indemnification sought by a Buyer Indemnified Party, notify Sellers, in writing of such Claims, setting forth a description of such Claims in reasonable detail; provided, however, that failure to give such written notice shall not relieve the Indemnitor of its obligations hereunder, except to the extent the Indemnitor has been prejudiced by such failure. The Indemnitor shall have thirty (30) days after receipt of such notice to undertake, conduct and assume control, through counsel of its own choosing reasonably satisfactory to the Indemnified Party, and at its own expense, of the assertion settlement or defense of any such Claim, so long as the Indemnitor notified the Indemnified Party of such defense in writing within thirty (30) days after the Indemnified Party has given notice of the third-party Claim by an Indemnitee, and the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume conducts the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee actively and diligently, and the Indemnitor Indemnified Party shall cooperate fully in connection therewith; provided, however, that the Indemnified Party may participate in such settlement or defense through counsel chosen by such Indemnified Party and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitorpaid at its own expense; and, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for that the avoidance Indemnified Party shall pay the fees and disbursements of doubt, such Claim and separate counsel unless (x) the prosecution and negotiation thereof shall be controlled employment of such separate counsel has been specifically authorized in writing by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoingIndemnitor, the Indemnitee will have the right to defend any such third-party Claim until such time as (y) the Indemnitor agrees has failed to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-third party Claim pursuant within thirty (30) days after receipt of notice thereof with counsel reasonably satisfactory to this Section 11.05such Indemnified Party, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and or (z) consider the named parties to the proceeding in good faith which such Claim has been asserted include both the recommendations made by Indemnitor and such Indemnified Party and, in the Indemnitee reasonable opinion of counsel to such Indemnified Party, there exists one or more defenses that may be available to the Indemnified Party that are in conflict with respect theretothose available to the Indemnitor. The Indemnified Party shall not pay or settle any such Claim without the written consent of the Indemnitor, which consent shall not be unreasonably withheld.

Third Party Claims. (a) In If the event Buyer Indemnified Parties' request for indemnification arises from the claim of a third party, the written notice shall permit Sellers to assume control of the assertion defense of any such claim, or any litigation resulting from such claim. Failure by Sellers to notify the Buyer Indemnified Parties of its election to defend a complaint by a third party within 5 days shall be a waiver by Sellers of its right to respond to such complaint and within 20 days after notice thereof shall be a waiver by Sellers of its right to assume control of the defense of such claim or action. If Sellers assume control of the defense of such claim or litigation resulting therefrom, Sellers shall take all reasonable steps necessary in the defense or settlement of such claim or litigation resulting therefrom and Sellers shall hold the Buyer Indemnified Parties, to the extent provided in this section 8, harmless from and against all Losses arising out of or resulting from any settlement approved by Sellers or any judgment in connection with such claim or litigation. Notwithstanding Sellers' assumption of the defense of such third-party Claim by an Indemniteeclaim or demand, the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will Buyer Indemnified Parties shall have the right to settle participate in the defense of such third-party claim or compromise demand at its own expense. Sellers shall not, in the defense of such claim or take litigation, consent to entry of any corrective judgment or remediation action enter into any settlement, except in either case with written consent of the Buyer Indemnified Parties, which consent shall not be unreasonably withheld. The Buyer Indemnified Parties shall furnish Sellers in reasonable detail all information such party may have with respect to any such Claim by third-party claim and shall make available to Sellers and their representatives all appropriate proceedings, records and other similar materials which are reasonably required in the Indemnitor defense of such third-party claim and shall use commercially reasonable efforts to diligently prosecute otherwise cooperate with and assist Sellers in the defense of such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitorthird-party claim. If the Indemnitor assumes Sellers do not assume control of the defense of any such third-party Claimclaim or litigation resulting therefrom, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor Buyer Indemnified Parties may defend against such claim or litigation in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have manner as it may reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claimdeem appropriate, and Sellers shall indemnify the Buyer Indemnified Parties from any costs or expenses Loss indemnifiable under section 8(a) incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretotherewith.

Third Party Claims. (a) In the event Purchaser becomes aware of the assertion of any a third-party Claim by claim which Purchaser in good faith believes may result in an Indemniteeindemnification claim pursuant to this ARTICLE 9, the Indemnitor will Purchaser shall have the rightright in its sole discretion, subject with counsel reasonably satisfactory to the provisions set forth in this Section 11.05 Shareholders’ Agent, to assume conduct the defense of same at and to settle or resolve any such Indemnitor’s expenseclaim (and the reasonable costs and expenses incurred by Purchaser in connection with such defense, settlement or resolution (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included in the appointment and selection of counsel on behalf Indemnifiable Damages for which Purchaser may seek indemnification pursuant to a claim made hereunder); provided, however, that if Purchaser settles or compromises any such claim without the consent of the Indemnitee so long as Shareholders’ Agent, such counsel is reasonably acceptable settlement or compromise shall not be conclusive evidence of the amount of Indemnifiable Damages incurred by Purchaser in connection with such claim (it being understood that if Purchaser requests that the Shareholders’ Agent consent to the Indemnitee. Subject to Section 11.05(d)a settlement or compromise, the Indemnitor will Shareholders’ Agent shall not unreasonably withhold or delay such consent). Purchaser shall timely notify the Shareholders’ Agent of a third-party claim, the Shareholders’ Agent shall have the right to settle or compromise or take any corrective or remediation action receive copies of all pleadings, notices and communications with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, claim to the Indemnitee will extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its own cost sole option and expense, to participate with the Indemnitor in the in, but not to determine or conduct, any defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are claim or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee settlement negotiations with respect to the defense and third-party claim. In the event that the Shareholders’ Agent has consented to any such settlement thereofor resolution, and (z) consider in good faith neither the recommendations made Shareholders’ Agent nor any Indemnifying Party shall have any power or authority to object to the amount of any claim by or on behalf of any Indemnified Person pursuant to this ARTICLE 9 with respect to such settlement or resolution but only to the extent that the amount of any such claim by or on behalf of any Indemnified Person exceeds the amount consented to by the Indemnitee with respect theretoShareholders' Agent.

Third Party Claims. Within ten (a10) In the event of the assertion business days after an Indemnitee receives notice of any third-third party Claim claim or the commencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an IndemniteeIndemnitor hereunder, such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under Section 7, notify such Indemnitor in writing in reasonable detail of such claim or action and include with such notice copies of all notices and documents (including court papers) served on or received by the Indemnitee from such third party. Upon receipt of such notice, the Indemnitor will have the rightshall be entitled to participate in such claim or action, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action thereof with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each caseand to settle or compromise such claim or action, in a timely manner; provided, further, that, for the avoidance of doubt, provided that such Claim and the prosecution and negotiation thereof settlement or compromise shall be controlled by effected only with the Indemnitor subject consent of the Indemnitee, which consent shall not be unreasonably withheld or delayed. After notice to the other terms Indemnitee of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees Indemnitor’s election to assume the defense of such Claimclaim or action, and the Indemnitor shall not be liable to the Indemnitee under Section 7 for any costs legal or other expenses subsequently incurred by the Indemnitee in connection therewith will with the defense thereof other than reasonable costs of investigation, provided that the Indemnitee shall have the right to employ counsel at the Indemnitee’s expense, to represent it if either (x) such claim or action involves remedies other than monetary damages and such remedies, in the Indemnitee’s reasonable judgment, could have a material adverse effect on such Indemnitee or (y) the Indemnitee may have available to it one or more defenses or counterclaims which are inconsistent with one or more defenses or counterclaims which may be Losses hereunder and subject to indemnification in accordance with and subject to alleged by the terms of this Article XIIndemnitor. If the Indemnitor has assumed does not elect to assume the defense of such claim or action within forty five (45) days of the Indemnitee’s delivery to notice of such a third-party Claim pursuant claim or action, the Indemnitee shall be entitled to assume the defense thereof. Unless it has been conclusively determined through a final judicial determination (or settlement tantamount thereto) that the Indemnitor is not liable to the Indemnitee under this Section 11.057.2(d), it will (x) keep the Indemnitee advised of the status of such third-party Claim shall act reasonably and the defense thereof on a reasonably current basis, (y) reasonably consult in accordance with the Indemnitee its good faith business judgment with respect to the defense and settlement thereofsuch defense, and (z) consider shall not settle or compromise any such claim or action without the consent of the Indemnitor, which consent shall not be unreasonably withheld or delayed. The parties hereto agree to render to each other such assistance as may reasonably be requested in good faith order to ensure the recommendations made by the Indemnitee with respect theretoproper and adequate defense of any such claim or action, including making employees available on a mutually convenient basis to provide additional information and explanation of any relevant materials or to testify at any proceedings relating to such claim or action.

Third Party Claims. (a) In the event If any Buyer Indemnified Party receives notice of the assertion or commencement of any third-claim or Legal Proceeding (whether against the Company, Buyer or any other Person) made or brought by any Person who is not a party Claim by to this Agreement or an IndemniteeAffiliate of a party to this Agreement or a Representative of any of the foregoing (a “Third Party Claim”) against such Buyer Indemnified Party with respect to which the Indemnifying Securityholders are obligated to provide indemnification under this Agreement, the Indemnitor will Buyer Indemnified Party shall give the Securityholders’ Representative reasonably prompt written notice thereof. The failure to promptly give such written notice shall not, however, relieve the Indemnifying Securityholders of their indemnification obligations, except and only to the extent that the Indemnifying Securityholders are actually and materially prejudiced thereby. Such notice by the Buyer Indemnified Parties shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Losses that have been or may be sustained by the Buyer Indemnified Parties. The Securityholders’ Representative shall have the rightright to participate in or, subject upon providing written notice to the provisions Buyer Indemnified Parties within fifteen (15) days of receipt of such notice of such Third Party Claim in which the Securityholders’ Representative acknowledges on behalf of the Indemnifying Securityholders without qualification the Indemnifying Securityholders’ indemnification obligation hereunder (subject only to the applicable limitations set forth in Section 8.3 and this Section 11.05 8.6), to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Third Party Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of Indemnifying Securityholders’ expense and by the IndemnitorSecurityholders’ Representative own counsel. If In the Indemnitor event that the Securityholders’ Representative assumes the defense of any such third-party Third Party Claim, subject to Section 8.7(b), the Indemnitee will be entitled, at its own cost and expense, Buyer Indemnified Parties shall cooperate reasonably in the defense thereof. The Buyer Indemnified Parties shall have the right to participate with the Indemnitor in the defense of any Third Party Claim with counsel selected by it, subject to the Securityholders’ Representative’s right to control the defense thereof. The fees and disbursements of such Claim and to engage separate counsel shall be at the expense of its choice for such purposethe Buyer Indemnified Parties; provided thatprovided, notwithstanding the foregoing, the Indemnitor shall pay that if in the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use opinion of counsel chosen by to the Indemnitor to represent the Indemnitee wouldBuyer Indemnified Parties, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be legal defenses available to such Indemnitee a Buyer Indemnified Party that are different from or additional to those available to the IndemnitorIndemnifying Securityholders, such fees and disbursements shall be at the expense of the Indemnifying Securityholders. If the Securityholders’ Representative elects not to compromise or defend such Third Party Claim, fails to give timely and sufficient notification to the Buyer Indemnified Parties in writing of its election to defend as provided in this Agreement, or loses its right to defend such Third Party Claim by failing to diligently defend such Third Party Claim, the Buyer Indemnified Parties may, subject to Section 8.6(b), without prejudice to its right to indemnification hereunder, pay, compromise and defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Notwithstanding anything to the contrary contained in this Section 8.6, the Securityholders’ Representative shall not be entitled to assume control of a Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, investigation or allegation, (ii) the Third Party Claim seeks injunctive or other equitable relief or relief other than for monetary Damages against the Buyer Indemnified Parties, (iii) the Buyer Indemnified Parties reasonably believe that the Third Party Claim, if adversely determined, would impair in any material respect the financial condition, business, operations, reputation or prospects of the Buyer Indemnified Parties or any of their respective Affiliates, (iv) an actual or readily apparent conflict of interest (as determined by the Buyer Indemnified Parties after obtaining advice of counsel) exists between the Indemnifying Securityholders and the Buyer Indemnified Parties with respect to the Third Party Claim that precludes effective joint representation, (v) the Third Party Claim is, in the discretion of the Buyer Indemnified Parties, subject to recovery under the R&W Insurance Policy, or (Bvi) the Indemnitee’s outside counsel shall have amounts reasonably concluded it would expected to be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and incurred in connection with such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Third Party Claim, and any costs or expenses incurred by together with all other outstanding claims on the Indemnitee Indemnity Escrow Fund, exceed the amount remaining in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XIIndemnity Escrow Fund. If the Indemnitor has assumed the defense of a third-party Claim If, pursuant to this Section 11.058.6(a), it will the Buyer Indemnified Parties so contest, defend, litigate or settle a Third Party Claim for which they are entitled to indemnification hereunder, the Buyer Indemnified Parties shall be reimbursed by the Indemnifying Securityholders for the reasonable attorneys’ fees and other expenses of defending the Third Party Claim which are incurred from time to time, promptly following the presentation to the Securityholders’ Representative of itemized bills for such attorneys’ fees and other expenses, subject, however, to any applicable limitations set forth in Section 8.3 this Section 8.6. Subject to any applicable limitations set forth in this Section 8.6, all expenses (xincluding attorneys’ fees) keep incurred by the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult Securityholders’ Representative in connection with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made foregoing shall be paid by the Indemnitee with respect theretoIndemnifying Securityholders.

Third Party Claims. (a) In the event an Indemnified Party becomes aware of a third-party claim which such Indemnified Party reasonably believes may result in a demand for indemnification pursuant to this Article 7, the Indemnified Party shall notify the Indemnifying Party of such claim, and the Indemnifying Party shall be entitled, at its expense, to assume the defense of such claim within five (5) days of receipt of such notice, if (i) (A) the amount at issue in the claim (as alleged by the third party claimant or, if no amount is so specified, as estimated in good faith by the board of directors of the assertion Indemnified Party) is less than (B) the difference between (x) the maximum potential dollar amount of the Indemnifying Party's indemnification obligations hereunder with respect to such claim and (y) the amount of all indemnity payments made by the Indemnifying Party pursuant hereto through such date, and (ii) (A) the Indemnifying Party has sufficient cash and cash equivalents (in the case of Seller excluding all amounts that may be required to satisfy the Liability Amounts, as well as all amounts that Seller is required to retain for the protection of the Buyer Indemnified Parties pursuant to Section 7.7) to fully defend such claim, and (B) the -62- Indemnifying Party has sufficient cash and cash equivalents (in the case of Seller excluding all amounts that may be required to satisfy the Liability Amounts) to satisfy the full amount at issue in such claim (as specified or estimated by the method set forth above). Before assuming the defense of any third-party Claim by an Indemniteeclaim hereunder, the Indemnitor will have Indemnifying Party shall be required substantiate that the right, subject above financial conditions are met through delivery of bank statements and other documentary evidence reasonably satisfactory to the provisions set forth Indemnified Party. An Indemnified Party's failure to comply with the notification requirement contained in this Section 11.05 the immediately preceding sentence shall not adversely affect such Indemnified Party's right to indemnification hereunder except to the extent such failure to provide notice materially prejudices the Indemnifying Party's ability to defend against a third-party claim. If the Indemnifying Party is entitled hereunder and so elects to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion claim or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense proceeding: (including reasonable attorneys’ fees and expenses) of the Indemnitee if (ia) the Indemnitor consents Indemnifying Party shall proceed to defend such claim or proceeding in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel a diligent manner with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the IndemniteeIndemnified Parties; (b) the Indemnified Parties shall make available to the Indemnifying Party copies of any non-privileged documents and materials in the possession of the Indemnified Parties that may be reasonably necessary to the defense of such claim or proceeding; (c) the Indemnifying Party shall keep the Indemnified Parties informed of all material developments and events relating to such claim or proceeding; (d) the Indemnified Parties shall have the right (at their own expense) to participate in the defense of such claim or proceeding with their own separate counsel, in each case, in a timely manner; provided, further, that, for provided that at all times the avoidance of doubt, such Claim and the prosecution and negotiation thereof Indemnifying Party shall be controlled by the Indemnitor have (subject to the other terms limitations contained elsewhere herein) control of this Section 11.05the defense and the authority and power to make all decisions concerning the defense; and (e) the Indemnifying Party shall not settle, adjust or compromise such claim or proceeding without the prior written consent of the Indemnified Parties, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to Indemnifying Party may not assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant claim against an Indemnified Party hereunder if (i) the claim seeks one or more equitable remedies against the Indemnified Party, including, without limitation, an injunction, or (ii) the claim, if adjudicated or decided in a manner adverse to this Section 11.05the Indemnified Party, it will would (x) keep in the Indemnitee advised good faith determination of the status board of such third-party Claim and directors of the defense thereof on a Indemnified Party) result in or be reasonably current basis, (y) reasonably consult with the Indemnitee with respect likely to result in material harm to the defense and settlement thereofIndemnified Party's business, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoreputation or prospects.

Third Party Claims. (a) In the event If any Claiming Party receives written notice of the assertion of any a third-party claim that the Claiming Party reasonably believes may result in a Liability Claim by an Indemnitee(a “Third Party Claim”), such Claiming Party will notify Purchaser, the Representative or, in the case of a Third Party Claim that may result in a Direct Securityholder Claim, the applicable Indemnitor will of such Third Party Claim (as the case may be, the “Indemnifier”), and the Indemnifier, at such Person’s own cost, shall have the rightright to direct and conduct, subject any defense of such claim if the Indemnifier shall provide written notice to the provisions set forth Claiming Party of its election to assume such defense prior to the expiration of the thirty (30) day response period specified in Section 7.5 (Objections to and Payment of Claims); provided, that (A) the Claiming Party may participate in any proceeding with counsel of its choice and at its expense; (B) Purchaser, at any time when it believes in good faith that any Third Party Claim is having or could reasonably be expected to have an adverse effect on Purchaser or any of its subsidiaries, may assume the defense and otherwise deal with such Third Party Claim in good faith, with counsel of its choice, and be fully indemnified therefor; (C) the Purchaser may assume the defense and otherwise deal with such Third Party Claim in good faith with counsel of its choice, and be fully indemnified therefor, if the reasonably anticipated Loss that may be incurred by Purchaser (without giving effect to the limitations of this Article 7, including Section 11.05 7.2(d) (Indemnification) and Section 7.3(f) (Limitations on Indemnification)) would exceed the amount for which Purchaser may be indemnified hereunder; (D) Purchaser, at any time when it believes that a claim for indemnification relates to or arises in connection with any criminal proceeding, indictment or investigation, may assume the defense and otherwise deal with such Third Party Claim in good faith with counsel of its choice, and be fully indemnified therefor; (E) the Indemnifier may not assume the defense of same at such Indemnitor’s expense, including any Third Party Claim if an actual conflict of interest exists between the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, Indemnifier and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at Claiming Party that precludes effective joint representation; and (F) the discretion of the Indemnitor. If the Indemnitor assumes Claiming Party may take over the defense and prosecution of any a Third Party Claim from the Indemnifier if the Indemnifier has failed or is failing to vigorously prosecute or defend such third-party Third Party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for that any such settlement or resolution shall not be concluded without the avoidance prior written approval of doubtthe Claiming Party, such Claim and approval not to be unreasonably withheld, delayed or conditioned. For purposes of the prosecution and negotiation thereof preceding sentence, withholding, delaying or conditioning approval shall not be controlled deemed unreasonable in the following circumstances relating to such settlement or resolution: (A) a finding or admission of any violation by the Indemnitor subject Purchaser of any Law or of any rights of any Person; (B) failure to receive a full release of claims that may be made against the Claiming Party and its Affiliates; and (C) granting of any relief other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred than monetary Losses that are paid in full by the Indemnitee in connection therewith will be Losses hereunder and subject to party from whom indemnification in accordance with and subject to is sought that would affect the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoClaiming Party.

Third Party Claims. (a) In the event that Parent becomes aware of the assertion a Third- Party Claim that Parent in good faith believes may result in a claim for Losses by or on behalf of any third-party Claim by an IndemniteeIndemnified Party, the Indemnitor will Parent shall have the rightright in its sole discretion to determine and conduct the defense of and, subject to the provisions set forth proviso hereto, to settle or otherwise resolve such Third-Party Claim, and the costs and expenses incurred by Parent or its Affiliates in this connection with defense, enforcement, settlement, or resolution (including reasonable out-of-pocket attorneys’ fees, other professionals’ and experts’ fees, and court or arbitration costs) shall be included in the Losses for which Parent shall be entitled to receive indemnification pursuant to an Indemnification Claim made hereunder, and such costs and expenses shall constitute Losses subject to indemnification under Section 11.05 7.02 regardless of whether it is ultimately determined that such Third-Party Claim arose out of, resulted from, or was in connection with a matter listed in Section 7.02; provided, however, that Indemnified Parties shall not agree to assume any settlement or resolution of any such Third- Party Claim without the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf prior written consent of the Indemnitee so long as such counsel is reasonably acceptable Shareholder Representative (which consent shall not be unreasonably withheld, conditioned, or delayed and which consent shall be deemed to have been given unless the IndemniteeShareholder Representative shall have objected within thirty (30) days after a written request therefor by Parent). Subject to Section 11.05(d), the Indemnitor will The Shareholder Representative shall have the right to settle or compromise or take any corrective or remediation action receive, and Parent shall reasonably promptly provide to the Shareholder Representative, copies of all pleadings, notices, and communications with respect to such Third-Party Claim to the extent that receipt of such documents does not affect any such Claim by all appropriate proceedingsprivilege relating to any Indemnified Party, and Parent shall keep the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion Shareholder Representative reasonably apprised of the Indemnitor. If the Indemnitor assumes status of such Third- Party Claim and the defense of thereof, and shall consider in good faith recommendations made by the Shareholder Representative with respect thereto. The Shareholder Representative and its Affiliates may participate in any Third-Party Claim or any action related to such thirdThird-party Claim, the Indemnitee will be entitled, Party Claim at its own cost and expense, . In the event that the Shareholder Representative has consented to participate with the Indemnitor in the defense amount of any settlement or resolution by Parent of any such Claim and to engage separate counsel of its choice for such purpose; provided thatThird-Party Claim, notwithstanding or if the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee Shareholder Representative shall have reasonably concluded that there are been determined by a court of competent jurisdiction to have unreasonably withheld, conditioned, or may be defenses available to such Indemnitee that are different from or additional to those available delayed its consent to the Indemnitoramount of any such settlement or resolution, or (B) neither the Indemnitee’s outside counsel Shareholder Representative nor any Shareholder shall have reasonably concluded it would be inappropriate any power or authority to object under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory this ARTICLE 7 to the Indemnitee, in each case, in a timely manner; provided, further, that, amount of any Indemnification Claim by or on behalf of any Indemnified Party for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee indemnity with respect to the defense and such settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoor resolution.

Third Party Claims. (a) In the event Buyer or the Surviving Corporation receives written notice of the assertion of any a third-party Claim by an Indemniteeclaim (a "Third Party Claim") which Buyer reasonably expects may result in a demand against the Escrow Fund, Buyer shall provide the Indemnitor will Shareholder Representatives with reasonably prompt written notice thereof. The Shareholder Representatives, as representative for the Shareholders, shall have the rightright to participate in or, subject by giving written notice to the provisions set forth in this Section 11.05 Buyer, to assume the defense of same any Third Party Claim at such Indemnitor’s expense, including the appointment and selection of counsel on behalf expense of the Indemnitee so long as such Escrow Fund and by counsel is selected by the Shareholder Representatives (which counsel must be reasonably acceptable satisfactory to the Indemnitee. Subject to Section 11.05(dBuyer), and Buyer will cooperate in good faith (and shall be permitted to participate at Buyer's expense) in such defense; provided, however, that the Indemnitor will have the right Shareholder Representatives shall not be entitled to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion assume control of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Third Party Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if that (i) could reasonably be expected to have any impact on the Indemnitor consents in writing to paying such costs and expenses, ongoing operations or goodwill of the Surviving Corporation or Buyer or their intellectual property or (ii) could reasonably be expected to result in Losses in excess of the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee Escrow Fund. Buyer shall have reasonably concluded the right in its sole discretion to settle any Third Party Claim contemplated by clause (i) or (ii) above; provided, however, that there are if Buyer settles any such Third Party Claim without the Shareholder Representatives' written consent (which consent shall not be unreasonably withheld or delayed), Buyer may be defenses available to such Indemnitee that are different from or additional to those available not make a claim against the Escrow Fund with respect to the Indemnitor, amount of Losses incurred by Buyer in such settlement unless the Shareholder Representatives unreasonably withheld or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and delayed such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely mannerconsent; provided, further, that, for that the avoidance of doubt, Shareholder Representatives may not settle any Third Party Claim without Buyer's written consent (which consent shall not be unreasonably withheld or delayed). In the event that the Shareholder Representatives have consented to any such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoingsettlement, the Indemnitee will Shareholder Representatives shall have the right no power or authority to defend object under any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms provision of this Article XI. If 7 to the Indemnitor has assumed amount of any claim by Buyer against the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee Escrow Fund with respect to the defense and amount of Losses incurred by Buyer in such settlement thereof, and (z) consider in good faith the recommendations made as consented to by the Indemnitee with respect theretoShareholder Representatives.

Third Party Claims. (a) In the event Parent, the Company (following the Closing) or the Principal Stockholders become aware of the assertion of any a third-party Claim by claim that Parent believes may result in a demand against the Escrow Fund or for other indemnification pursuant to this Article VIII (a “Third-Party Claim”), Parent shall notify the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an IndemniteeIndemnifying Party, such Indemnifying Party) of such claim, and the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel Stockholder Representative shall be entitled on behalf of the Indemnitee so long as Stockholders (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(dIndemnifying Party shall be entitled), at the Indemnitor will Stockholders’ expense (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party’s expense), to participate in, but not to determine or conduct, any defense of such claim. For purposes of this Agreement, Third Party Claims shall be deemed to include those claims disclosed in Item 1 of Section 2.18(o) of the Company Disclosure Schedule for informational purposes. Parent shall have the right in its sole discretion to conduct the defense of, and to settle or compromise or take any corrective or remediation action Third Party Claim. If with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion settlement of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Third Party Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents Parent acts reasonably and in writing good faith in response to paying such costs Third-Party Claim and expenses, (ii) Parent obtains the use prior written consent of counsel chosen by the Indemnitor Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party) (which consent shall not be unreasonably withheld or delayed) before entering into any settlement of a Third-Party Claim, Parent will be able to represent recover the Indemnitee would, based on the good faith advice amount of such Indemnitee’s outside counselsettlement as a Loss pursuant Article VIII to the extent such amount is (b) less than or equal to the amount set forth in the written consent and (b) otherwise an indemnifiable Loss pursuant to this Article VIII. Furthermore, present if Parent does not receive such counsel with written consent from the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party), in the full amount of the settlement, than any amounts that are paid in any such settlement shall not be determinative of the amount of Losses that are recoverable and the amount of settlement that is recoverable as a conflict of interest, Loss under this Agreement shall be limited to (iiiand shall in no event exceed) the named parties amount of the settlement to such third-party Claim include both the Indemnitee and the Indemnitor which (i) it would have been unreasonable to withhold consent and (Aii) the Indemnitee shall have reasonably concluded that there are or may be defenses available otherwise an indemnifiable Loss pursuant to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely mannerthis Article VIII; provided, furtherhowever, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof that no amount shall be controlled by the Indemnitor subject recoverable hereunder if Parent does not act reasonably and in good faith in response to the other terms of this Section 11.05such Third-Party Claim. Notwithstanding the foregoing, the Indemnitee will have parties hereto acknowledge and agree that the right Stockholder Representative (for and on behalf of the Stockholders) shall control all matters relating to defend the disclosure set forth as Item 3 in Section 2.12 of the Company Disclosure Schedule (including, without limitation, seeking to obtain any such third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred determination by the Indemnitee Internal Revenue Service in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to therewith); provided, however, that the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably Stockholder Representative shall consult with the Indemnitee with respect to the defense Parent regarding such matters and settlement thereof, and (z) consider in good faith the recommendations made promptly provide all information reasonably requested by the Indemnitee with respect theretoParent.

Third Party Claims. (a) In the event that Acquiror becomes aware of the assertion of any a third-party Claim claim which Acquiror believes may result in a claim against the Escrow Fund by or on behalf of an IndemniteeIndemnified Person, the Indemnitor will Acquiror shall have the right, subject right in its sole discretion to the provisions set forth in this Section 11.05 to assume conduct the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to resolve any such Claim by all appropriate proceedings, claim (and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of incurred by Acquiror in connection with such defense defense, settlement or resolution (including reasonable attorneys’ fees , other professionals’ and expensesexperts’ fees and court or arbitration costs) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by included in the Indemnitor subject Indemnifiable Damages for which Acquiror may seek indemnification pursuant to the other terms of this Section 11.05a claim made hereunder). Notwithstanding the foregoing, the Indemnitee will The Indemnifying Holders’ Agent shall have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense receive copies of such Claimall pleadings, notices and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee communications with respect to the third-party claim to the extent that receipt of such documents does not affect any privilege relating to any Indemnified Person and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense and of the third-party claim or settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee negotiations with respect theretoto the third-party claim. However, except with the consent of the Indemnifying Holders’ Agent, which shall not be unreasonably withheld and shall be deemed to have been given unless the Indemnifying Holders’ Agent shall have objected within 15 days after a written request for such consent by Acquiror, no settlement or resolution of any such claim with any third-party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter. In the event that the Indemnifying Holders’ Agent has consented to any such settlement or resolution, none of the Indemnifying Holders’ Agent, the Indemnifying Holders shall have any power or authority to object under Section 8.7 or any other provision of this Article VIII to the amount of any claim by or on behalf of any Indemnified Person with respect to such settlement or resolution.

Third Party Claims. (a) In the event Gusana becomes aware of the assertion of any a third-party Claim by an Indemniteeclaim that Gusana reasonably expects may result in a demand against the Indemnity Fund (a "Third Party Claim"), Gusana shall give written notice to the Stockholder within ten (10) days of Gusana becoming aware of any such Third Party Claim; the notice shall set forth such material information with respect thereto as is then reasonably available to Gusana; provided, however, that such written notice shall be effective only if delivered to the Stockholder before the expiration, pursuant to Section 8.1 hereof, of the representations, warranties, covenants and agreements upon which such Third Party Claim(s) are based. In case any such liability is asserted against Gusana, and Gusana notifies the Stockholder thereof, the Indemnitor Stockholder will have the rightbe entitled, subject if it so elects by written notice delivered to the provisions set forth in this Section 11.05 Gusana within ten (10) days after receiving Gusana's notice, to assume the defense of same at such Indemnitor’s expensethereof with counsel reasonably satisfactory to Gusana. Notwithstanding the foregoing, including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will (i) Gusana shall also have the right to settle or compromise or take any corrective or remediation action with respect to employ its own counsel in any such Claim by all appropriate proceedingscase, and but the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs fees and expenses of such defense (including reasonable attorneys’ fees and expenses) counsel shall be at the expense of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with Gusana unless Gusana shall reasonably determine that there is a conflict of interest, (iii) interest between Gusana and the named parties Stockholder with respect to such third-party Third Party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that or there are or may be legal defenses available to such Indemnitee that the Stockholder which are different from or additional to those available to Gusana or a difference of position or potential difference of position exists between the IndemnitorStockholder and Gusana that would make such separate representation advisable in the reasonable opinion of counsel to Gusana, or (B) in which case the Indemnitee’s outside reasonable fees and expenses of such counsel shall have reasonably concluded it would will be inappropriate under applicable standards of professional conduct to have common counsel for borne by the Indemnitee and the Indemnitor Stockholder unless such representation is advisable only due to actual or potential differing interests between activities of Gusana since the Indemnitor Closing Date, and (ii) Gusana shall not have any obligation to give any notice of any assertion of liability by a third party unless such Indemnitee, or (iv) the Indemnitor fails assertion is in writing. With respect to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, any assertion of liability by a third party that results in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoingThird Party Claim, the Indemnitee will have the right parties hereto shall make available to defend each other all relevant information in their possession material to any such third-party Claim until such time as assertion. In the Indemnitor agrees event that the Stockholder, within ten (10) days after receipt of the aforesaid notice of a Third Party Claim, fails to assume the defense of Gusana against such Third Party Claim, Gusana shall have the right to undertake the defense, compromise, or settlement of such action on behalf of and for the account, expenses and risk of the Stockholder. Notwithstanding anything in this Article 8 to the contrary, Gusana shall have the right to participate, at its own cost and expense, in such defence, compromise, or settlement and, if there is a reasonable probability that a settlement, compromise or consent to entry of judgment Third Party Claim may materially and adversely affect Gusana, the Stockholder shall not, without Gusana's written consent (which consent shall not be unreasonably withheld), settle or compromise any costs Third Party Claim or expenses incurred consent to entry of any judgment in respect thereof unless such settlement, compromise, or consent includes as an unconditional term thereof the giving by the Indemnitee claimant or the plaintiff to Gusana a release from all liability in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status respect of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoThird Party Claim.

Third Party Claims. (a) In the event that an Indemnified Party becomes aware of a third party claim (a “Third Party Claim”) that the Indemnified Party reasonably believes may result in a demand against the Escrow Amount or for other indemnification pursuant to this Article IX, the Indemnified Party shall promptly notify the Stockholder Representative of such claim; provided that failure to so notify shall not affect the right of the assertion of any third-party Claim by an IndemniteeIndemnified Parties to seek indemnification from the Escrow Amount hereunder, the Indemnitor will have the right, subject except to the provisions set forth in this Section 11.05 to assume the defense extent that any holder of same at such Indemnitor’s expense, including the appointment and selection of counsel Company Capital Stock is actually prejudiced thereby. The Stockholder Representative shall be entitled on behalf of the Indemnitee so long as Indemnifying Parties to participate in, but not determine or conduct, the defense of the Third Party Claim at the Indemnifying Parties’ sole cost and expense, and shall be entitled to receive regular updates on any material developments and copies of all pleadings, notices and material communications with respect to such Third Party Claim. For avoidance of doubt, the right to participate shall mean a right to provide input on overall strategy and to receive periodic updates on status, but not a right to prior approval of filings or to participate in actual proceedings. Parent shall have the right to select counsel is reasonably acceptable to the IndemniteeStockholder Representative and to conduct the defense of, and to settle, any such Third Party Claim. Subject to Section 11.05(dIf Parent settles a Third Party Claim without the prior written consent of the Stockholder Representative (which consent shall not be unreasonably conditioned, withheld or delayed), then the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) the settlement will not be deemed dispositive of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice validity or amount of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely mannerLoss; provided, further, thatthat if Parent settles a Third Party Claim without the prior written consent of the Stockholder Representative (which consent shall not be unreasonably conditioned, for the avoidance of doubt, such Claim withheld or delayed) and the prosecution Stockholder Representative shall not have objected within thirty (30) days after a written request for such consent by Parent, the entire costs and negotiation thereof expenses of the settlement shall be controlled by deemed dispositive of the Indemnitor subject validity or amount of such Loss. In the event that the Stockholder Representative has consented to any such settlement, adjustment or compromise, the other terms Indemnifying Parties or the consenting Indemnifying Parties, as applicable, shall have no power or authority to object under any provision of this Section 11.05. Notwithstanding 9.5 to the foregoing, existence of the Indemnitee will have Losses or the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense amount of such Claimsettlement, and any costs adjustment or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretocompromise.

Third Party Claims. (a) In the event If any Indemnified Person receives notice of the assertion or commencement of any thirdAction made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a representative of the foregoing (a “Third-party Claim by an IndemniteeParty Claim”) against such Indemnified Person with respect to which the Indemnifying Person is obligated to provide indemnification under this Agreement, the Indemnitor will Indemnified Person shall give the Indemnifying Person (or if the Company Securityholders are the Indemnifying Persons, the Securityholders’ Representative) reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Person of its indemnification obligations or otherwise affect the indemnification provided hereunder except to the extent, and only to the extent that, the Indemnifying Person shall have been materially prejudiced as a result of such failure. Such notice by the Indemnified Person shall describe the Third-Party Claim in reasonable detail (to the extent then known), and shall indicate the estimated amount, if reasonably practicable and to the extent then known, of the Loss that has been or may be sustained by the Indemnified Person. The Indemnifying Person (or if the Company Securityholders are the Indemnifying Persons, the Securityholders’ Representative) shall have the rightright to participate in, subject or by giving written notice to the provisions set forth in Indemnified Person, which notice shall include an admission of the Indemnifying Persons’ indemnification obligation under this Section 11.05 Articles VII with respect to such Third-Party Claim, to assume the defense of same any Third-Party Claim at such Indemnitorthe Indemnifying Person’s expense(or if the Company Securityholders are the Indemnifying Persons, including the appointment Securityholders’ Representative’s) expense and selection of by the counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to Indemnifying Person (or if the Indemnitee. Subject to Section 11.05(dCompany Securityholders are the Indemnifying Persons, the Securityholders’ Representative), and the Indemnitor will Indemnified Person shall cooperate in good faith in such defense; provided that if the Indemnifying Person is the Company Securityholders, the Securityholders’ Representative shall not have the right to settle defend or compromise or take any corrective or remediation action with respect to direct the defense of any such Third-Party Claim if: (i) such Third-Party Claim related to or arises in connection with any criminal proceeding; (ii) the Third-Party Claim is asserted directly by or on behalf of a Person that is a supplier or customer of the Company; (iii) the Third-Party Claim seeks an injunction, equitable relief, or other non-monetary relief against the Indemnified Persons; (iv) the amount of Losses alleged in such Third-Party Claim is in excess of the amount then remaining under the Cap at the time Parent Indemnified Person gives the Securityholders’ Representative notice of such Third-Party Claim, after taking into account the sum of all appropriate proceedingsLosses and expenses previously recovered by Parent Indemnified Persons hereunder plus all Losses and expenses specified in any then unresolved claims made by Parent Indemnified Persons pursuant to this Article VIII, or the Indemnifying Person failed or is failing to use diligent, reasonable and the Indemnitor shall use commercially reasonable good faith efforts to diligently prosecute defend such proceedings Third-Party Claim; or (v) a Parent Indemnified Person seeks recourse under the R&W Policy and therefore such Parent Indemnified Person and/or the R&W Insurance Company under the R&W Policy has the right to a final conclusion control (whether directly or settle such proceedings at indirectly) the discretion of defense thereof. In the Indemnitor. If event that the Indemnitor Indemnifying Person assumes the defense of any such thirdThird-party Party Claim, subject to Section 8.5(c), it shall have the Indemnitee will be entitledright to take such action as it deems necessary to avoid, at its own cost dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and expense, on behalf of the Indemnified Person. The Indemnified Person shall have the right to participate with the Indemnitor in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Person’s right to control the defense thereof. The fees and disbursements of such Claim and to engage separate counsel shall be at the expense of its choice for such purpose; the Indemnified Person, provided that, notwithstanding the foregoing, the Indemnitor shall pay that if in the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use opinion of counsel chosen by to the Indemnitor to represent the Indemnitee wouldIndemnified Person, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be legal defenses available to such Indemnitee an Indemnified Person that are different from or additional to those available to the IndemnitorIndemnifying Person, the Indemnifying Person shall be liable for the reasonable fees and expenses of counsel to the Indemnified Person in each jurisdiction for which the Indemnified Person determines counsel is required, paid monthly within fifteen (15) days of invoice date. If the Indemnifying Person elects not to compromise or defend such Third-Party Claim, fails to promptly notify the Indemnified Person in writing of its election to defend as provided in this Agreement, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume diligently prosecute the defense of such Third-Party Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and Indemnified Person may, subject to Section 8.5(c), pay, compromise, defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim, to the extent that such Losses are available to be so indemnified in accordance with and subject to the terms of this Article XIhereof. If the Indemnitor has assumed The Securityholders’ Representative and Parent shall cooperate with each other in all reasonable respects in connection with the defense of a thirdany Third-party Party Claim, including making available records relating to such Third-Party Claim pursuant and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to this Section 11.05the defending party, it will (x) keep the Indemnitee advised management employees of the status non-defending party as may be reasonably necessary for the preparation of the defense of such thirdThird-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoParty Claim.

Third Party Claims. (a) In the event that an Indemnified Party becomes aware of a third party claim (a “Third Party Claim”) which such Indemnified Party reasonably believes may result in an indemnification claim pursuant to this Article VIII, such Indemnified Party shall notify the Shareholder Representative (or, in the event indemnification is being sought hereunder directly from a Seller, such Seller) of such Third Party Claim; provided, however, that the failure to give prompt notice shall not affect the indemnification provided hereunder except to the extent the Shareholder Representative, on behalf of the assertion Indemnifying Persons, has been actually and materially prejudiced as a result of any third-party such failure. The Shareholder Representative shall, within ten (10) Business Days of receipt of such notice, notify such Indemnified Party whether the Shareholder Representative desires to undertake and conduct the defense of such Third Party Claim by an Indemnitee, (provided that the Indemnitor will have the right, subject to the provisions set forth in this Section 11.05 to Shareholder Representative may not assume the defense of same at such Indemnitor’s expense, including a Third Party Claim (i) unless the appointment and selection of counsel on behalf then remaining amount of the Indemnitee so long as Escrow Fund (together with the remaining amounts in the Shareholder Representative Expense Fund) would be sufficient to satisfy all indemnification obligations that could reasonably be expected to become payable in respect of the Third Party Claim if adversely determined and all other pending or unsatisfied claims made on the Escrow Fund, plus all of the legal fees and expenses reasonably expected to be incurred by the Shareholder Representative, (ii) if such counsel is Third Party Claim -71- seeks any injunction, declaratory judgment or other non-monetary order or equitable relief against any Indemnified Party, (iii) if the litigation or outcome of such Third Party Claim would reasonably acceptable be expected to impact Parent’s or Purchaser’s business in addition to the Indemnitee. Subject to Section 11.05(d)monetary damages paid in the claims (including, without limitation, any claim involving the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion Intellectual Property of the IndemnitorCompany) or (iv) if counsel to the Shareholder Representative is not reasonably satisfactory to Parent). If the Indemnitor Shareholder Representative assumes the defense of any such third-party a Third Party Claim, notwithstanding any other provision of this Agreement, the Indemnitee will Sellers shall be entitledliable for the full amount of all Losses incurred by the Indemnified Parties arising out of or relating to such Third Party Claim (and, for the avoidance of doubt, without regard to any of the limitations provided for in this Article VIII) and the Shareholder Representative shall take all actions necessary or appropriate to defend against the Third Party Claim. Parent or Purchaser may, at its own cost and expense, to participate with the Indemnitor in the defense of any such Third Party Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen assumed by the Indemnitor to represent Shareholder Representative. In the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee event any Indemnified Party shall have reasonably concluded conclude that there are or may be legal defenses or rights available to such Indemnitee that it which are different from from, in actual or potential conflict with, or additional to those available to the IndemnitorShareholder Representative, such Indemnified Party or (B) Parties shall be entitled to select separate counsel to act on its behalf and the Indemnitee’s outside fees and expenses of such separate counsel shall have reasonably concluded it would be inappropriate additional indemnifiable Losses under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to this Article VIII; provided, however, that if such actual or potential differing interests conflict arises between the Indemnitor positions of Parent and such Indemniteethe Shareholder Representative, or any of the conditions in clauses (i) through (iv) the Indemnitor fails to assume such defense above is satisfied, then Parent or engage counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof Purchaser shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such third-party Claim until such time as assume the Indemnitor agrees to assume control of the defense of the Third Party Claim. The Shareholder Representative may not settle any matter (in whole or in part) without the consent of Parent or Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed (provided that Parent or Purchaser may withhold consent to any settlement in its discretion unless such Claimsettlement (A) includes a complete and unconditional release of Parent, Purchaser and/or the Indemnified Parties, (B) excludes any injunctive or non-monetary relief applicable to the Indemnified Parties, and (C) excludes any costs finding or expenses incurred admission of fault, liability or any violation of law), and which consent shall be deemed to have been given unless Parent or Purchaser shall have objected within twenty (20) days after a written request for such consent by the Indemnitee in connection therewith will be Losses hereunder and subject Shareholder Representative. If the Shareholder Representative does not elect to indemnification defend against such Third Party Claim in accordance with this Section 8.6, then the Shareholder Representative, on behalf of the Sellers, shall be entitled to participate in any defense of such Third Party Claim, at its expense and subject without recourse to the terms Escrow Fund; provided, however, that Parent and/or Purchaser shall have full control over the litigation, including settlement and compromise thereof; provided, further that any such settlement shall not be determinative of the existence of or amount of Losses relating to such Third Party Claim, except with the consent of the Shareholder Representative, which consent shall not be unreasonably, withheld, conditioned or delayed and which consent shall be deemed to have been given unless the Shareholder Representative shall have objected within twenty (20) days after a written request for such consent by Parent or Purchaser. 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 paid, sustained, suffered, incurred or accrued by the Indemnified Parties in defense of such Third Party Claim, regardless of the outcome of such claim, shall be deemed Losses hereunder, provided however, that the foregoing shall not impact the ability of the Shareholder Representative to object to the amount of any such Losses pursuant to Section 8.5 hereof. The Escrow Agent shall not disburse any portion of the Escrow Fund to any third party except in accordance with joint written instructions received from Parent or Purchaser, on the one hand, and the Shareholder Representative, on the other hand. In the event that the Shareholder Representative has consented to any such settlement, the Indemnifying Parties shall have no power or authority to object under any provision of this Article XI. If VIII to the Indemnitor has assumed amount of any Third Party Claim by Purchaser against the defense of a third-party Claim pursuant to this Section 11.05Escrow Fund, it will (x) keep or against the Indemnitee advised of Sellers directly, as the status of such third-party Claim and the defense thereof on a reasonably current basiscase may be, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretosuch settlement.

Third Party Claims. (a) In Should any Third-Party Claim be made against the event of Stockholders with respect to any matter to which the assertion of any third-party Claim by an Indemnitee, the Indemnitor will have the right, subject to the provisions indemnity set forth in this Section 11.05 to assume 10(a) relates, then the defense Stockholders shall promptly give Buyer written notice of same at any such Indemnitor’s expense, including the appointment Third-Party Claim and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.05(d), the Indemnitor will Buyer shall have the right to defend or settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any such thirdThird-party Party Claim, the Indemnitee will be entitled, at its own cost and sole expense, to participate on its own behalf and with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided thatown choosing, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside which counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the IndemniteeStockholders. The Stockholders agree that Pxxxxxxxx Xxxxxxxxxx & Lxxx LLP is satisfactory. In such defense or settlement of any claim, the Stockholders shall cooperate with and assist Buyer to the maximum extent reasonably possible and may participate therein with his or her own counsel at his or her own expense, and the Stockholders’ written consent shall be a requirement to any settlement and disposition thereof, which consent shall not be unreasonably withheld or delayed. Failure by the Stockholders to give notice within a reasonable period of time shall not constitute a defense, in each casewhole or in part, to any claim for indemnification by the Stockholders, except only to the extent that such failure by the Stockholders shall result in a timely manner; providedmaterial prejudice to Buyer. If Buyer does not notify the Stockholders within 10 days after receipt of the Stockholders’ written notice of a Third-Party Claim that Buyer intends to undertake the defense thereof, further, that, for the avoidance of doubt, and that such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor claim is subject to the other terms indemnity set forth in Section 10(a), or if after undertaking such defense Buyer fails to pursue such defense in a prudent manner, then the Stockholders shall have the right to contest, settle or compromise the claim and Buyer shall indemnify the Stockholders for the full amount of this Section 11.05all Losses paid or suffered by the Stockholders in respect thereof. Notwithstanding the foregoing, so long as Buyer is contesting any such Third Party Claim in good faith, the Indemnitee will Stockholders shall not have the right to defend pay or settle any such third-party Claim until such time as claim without the Indemnitor agrees to assume the defense prior written consent of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to indemnification in accordance with and subject to the terms of this Article XI. If the Indemnitor has assumed the defense of a third-party Claim pursuant to this Section 11.05, it will (x) keep the Indemnitee advised of the status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect theretoBuyer.