Common use of Third Person Claims Clause in Contracts

Third Person Claims. Promptly after a party has received notice of or has actual knowledge of any Claim against it covered by a third party or the commencement of any action or proceeding by a third person with respect to any such Claim, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder with respect to such Claim, action or proceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtained.

Third Person Claims. Promptly after a party has received notice of (a) If any third Person shall notify Seller, the Company or has actual knowledge of any Claim against it covered by a third party or Buyer (the commencement of any action or proceeding by a third person “Indemnified Party”) with respect to any such matter (a “Third Person Claim, such party ”) that may give rise to a claim for indemnification against Seller or Buyer (sometimes referred to as the “IndemniteeIndemnifying Party”) under this Article 8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing. Failure to give such reasonable notice shall not affect the other party indemnification provided hereunder except to the extent that such failure shall have actually and materially prejudiced the Indemnifying Party as a result thereof. (sometimes referred b) Any Indemnifying Party will have the right to as assume and thereafter conduct at his or its own expense the “Indemnitor”) written notice defense of such claim the Third Person Claim with counsel of his or commencement of such action or proceedingits Indemnified Party; provided, however, that the failure to give such notice Indemnifying Party will not affect consent to the right to indemnification hereunder entry of any judgment or award or enter into any settlement with respect to such Claim, action or proceeding, except to the extent that Third Person Claim without the other party has been actually prejudiced as a result prior written consent of such failureeach Indemnified Party. If the Indemnitor has notified Indemnifying Party assumes the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, defense then the Indemnitor shall have Indemnified Party may participate in, but not control, any such defense or settlement, at the right to assume Indemnified Party’s sole cost and control expenses. (c) Unless and until an Indemnifying Party assumes the defense of the Third Person Claim by appropriate proceedings with counsel as provided in Section 8.6(b), the Indemnified Party may defend against the Third Person Claim in any manner he or it reasonably acceptable deems appropriate. The costs of such defense shall be included in determining Losses relating to the Indemnitee. The Indemnitee may participate in Third Person Claim. (d) In no event will the defense, at its sole expense, Indemnified Party consent to the entry of any such Claim for which the Indemnitor shall have assumed the defense pursuant judgment or award or enter into any settlement with respect to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Third Person Claim without obtaining a release for the benefit prior written consent of each of the IndemniteeIndemnifying Parties, unless the which consent of the Indemnitee is obtainedshall not be unreasonably withheld.

Third Person Claims. Promptly after a party has received notice of or has actual knowledge of any Claim against it covered by a third party or the commencement of any action or proceeding by a third person with respect to any such Claim, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder with respect to such Claim, action or proceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the The Indemnitor shall have the right to assume and control the defense of any Third Person Claim at the Claim by appropriate proceedings sole expense of the Indemnitor with counsel reasonably acceptable selected by the Indemnitor. If the Indemnitor so assumes the defense of such Third Person Claim, the Indemnified Party shall have the right to the Indemnitee. The Indemnitee may employ separate counsel and to participate in the defensedefense thereof, at its sole expenseincluding all conferences, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentencediscovery proceedings, hearings, trials and appeals, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its such separate counsel for any period during which shall be at the sole expense of the Indemnified Party. If the Indemnitor has not assumed so assumes the defense of any claimThird Person Claim, (a) the Indemnitor shall promptly deliver to the Indemnified Party copies of all material written notices and documents (including court papers) received by the Indemnitor relating to the Third Person Claim and shall keep the Indemnified Party reasonably apprised of the status of such defense and (b) the Indemnified Party shall cooperate with the Indemnitor in such defense and make available, on a timely basis, to the Indemnitor all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably requested by the Indemnitor, all at the sole expense of the Indemnitor. The With respect to any Third Person Claim, neither of the Indemnitor may not settle nor the Indemnified Party shall admit any liability with respect to or pay, settle, compromise or discharge, or offer to pay, settle, compromise or discharge, such Third Person Claim without obtaining the other Indemnitor’s or Indemnified Party’s (as applicable) prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, unless such admission, payment, settlement, compromise or discharge includes the giving by each claimant or plaintiff to each of the Indemnitor and the Indemnified Party and their respective Affiliates of a release for the benefit from all liability in respect of the Indemnitee, unless the consent of the Indemnitee is obtained.such claim

Third Person Claims. Promptly after a any party hereto (the "Indemnified Party") has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect Third Person that may give rise to any such Claima right of indemnification hereunder, such party (sometimes referred to as the “Indemnitee”) Indemnified Party shall give to the other party obligated to provide indemnification hereunder (sometimes referred to as the “Indemnitor”an "Indemnifying Party") written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder relieve such Indemnifying Party from liability under this Section with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnifying Party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty The Indemnifying Party (30at its own expense) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right and shall be given the opportunity to assume and control associate with the Indemnified Party in the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defensesuch claim, at its sole expensesuit or proceedings, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Indemnified Party shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings. The Indemnified Party shall not, except at its own cost, make any settlement with respect to any such claim, suit or proceeding other than Claims that in without the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee is obtainedIndemnifying Party, which consent shall not be unreasonably withheld or delayed.

Third Person Claims. Promptly after a any party hereto (the "Indemnified Party") has received written notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect Third Person that may give rise to any such Claima right of indemnification hereunder, such party (sometimes referred to as the “Indemnitee”) Indemnified Party shall give to the other party obligated to provide indemnification hereunder (sometimes referred to as the “Indemnitor”an "Indemnifying Party") written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder relieve such Indemnifying Party from liability under this Section with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnifying Party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty The Indemnifying Party (30at its own expense) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right and shall be given the opportunity to assume and control associate with the Indemnified Party in the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee such claim, suit or proceedings, and may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that select counsel for the Indemnitor shall act as lead Indemnified Party, such counsel in all matters pertaining to be reasonably satisfactory to the defense or Indemnified Party. The Indemnified Party shall not, except at its own cost, make any settlement of with respect to any such Claimsclaim, suit or proceeding other than Claims that in without the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit prior consent of the IndemniteeIndemnifying Party, which consent shall not be unreasonably withheld or delayed. All settlements hereunder shall effect a complete release of the Indemnified Party, unless the consent Indemnified Party otherwise agrees in writing. The parties hereto will make appropriate adjustments for insurance proceeds and tax benefits in determining the amount of the Indemnitee is obtainedany Damages.

Third Person Claims. 8.5.1 Promptly after either a party has DoveBid Indemnitee or the Representatives (as the case may be) have received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person"), or the commencement of any action or proceeding by a third person with respect to any such Claim, such party Third Person (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceedingproceeding being a "Third Person Claim") that could give rise to a right of indemnification under this Article VIII, such party shall, as a condition precedent to a claim with respect thereto, give to the Principal Shareholders or DoveBid (as the case may be) written notice of such Third Person Claim describing in reasonable detail the nature of such Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount of Damages attributable to the Third Person Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the DoveBid Indemnitee's or the Representatives' request for indemnification under this Article VIII; provided, however, that the failure of a party to give timely notice hereunder shall relieve the Principal Shareholders or DoveBid (as the case may be) of their indemnification obligations under this Article VIII to the extent, but only to the extent that, such notice failure materially prejudices such party's ability to defend such claim. 8.5.2 DoveBid shall defend any Third Person Claim, and the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder; provided that the Representatives (on behalf of the Shareholders) will not affect have the right to indemnification hereunder participate in such defense at their sole cost and expense. The Representatives shall have the right to receive copies of all pleadings, notices and communications with respect to the Third Person Claim to the extent that receipt of such documents by the Representatives does not affect any privilege relating to the DoveBid Indemnitee, and may participate in settlement negotiations with respect to the Third Person Claim. No DoveBid Indemnitee shall enter into any settlement of a Third Person Claim without the prior written consent of the Representatives (which consent shall not be unreasonably withheld or delayed), action provided, that if the Representatives shall have consented in writing to any such settlement, then the Representatives shall have no power or proceedingauthority to object to any Claim by any DoveBid Indemnitee for indemnity under Article VIII for the amount of such settlement and the Principal Shareholders will remain responsible to indemnify the DoveBid Indemnitee for all Damages they may incur arising out of, resulting from or caused by the Third- Party Claim to the fullest extent provided in Article VIII (except if and only to the extent that the other party has been actually prejudiced Representatives shall have expressly reserved the Principal Shareholders' right to object to such Third Person Claim as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Contested Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtained).

Third Person Claims. 8.5.1 Promptly after either a party has DoveBid Indemnitee or the Shareholders (as the case may be) have received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person"), or the commencement of any action or proceeding by a third person with respect to any such Claim, such party Third Person (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceedingproceeding being a "Third Person Claim") that could give rise to a right of indemnification under this Article VIII, such party shall, as a condition precedent to a claim with respect thereto, give to the Shareholders or DoveBid (as the case may be) written notice of such Third Person Claim describing in reasonable detail the nature of such Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount of Damages attributable to the Third Person Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the DoveBid Indemnitee's or the Shareholders' request for indemnification under this Article VIII; provided, however, that the failure of a party to give timely notice hereunder shall relieve the Shareholders or DoveBid (as the case may be) of their indemnification obligations under this Article VIII to the extent, but only to the extent that, such notice failure materially prejudices such party's ability to defend such claim. 8.5.2 DoveBid shall defend any Third Person Claim, and the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder; provided that the Shareholders will not affect have the right to indemnification hereunder participate in such defense at their sole cost and expense. The Shareholders shall have the right to receive copies of all pleadings, notices and communications with respect to the Third Person Claim to the extent that receipt of such documents by the Shareholders does not affect any privilege relating to the DoveBid Indemnitee, and may participate in settlement negotiations with respect to the Third Person Claim. No DoveBid Indemnitee shall enter into any settlement of a Third Person Claim without the prior written consent of the Shareholders (which consent shall not be unreasonably withheld or delayed), action provided, that if the Shareholders shall have consented in writing to any such settlement, then the Shareholders shall have no power or proceedingauthority to object to any Claim by any DoveBid Indemnitee for indemnity under this Article VIII for the amount of such settlement and the Shareholders will remain responsible to indemnify the DoveBid Indemnitee for all Damages they may incur arising out of, resulting from or caused by the Third-Party Claim to the fullest extent provided in Article VIII (except if and only to the extent that the other party has been actually prejudiced Shareholders shall have expressly reserved the Shareholders' right to object to such Third Person Claim as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Contested Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtained).

Third Person Claims. Promptly after a party has received notice of or has actual knowledge of any Claim claim against it covered by Section 11 by a third party Third Party or the commencement of any action or proceeding by a third person Third Person with respect to any such Claimclaim, such party (sometimes referred to as the “"Indemnitee”") shall give the other party (sometimes referred to as the “"Indemnitor”") written notice of such claim or commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between claim by the partiesThird Person, then the Indemnitor shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, provided that the Indemniteeassumption of such defense by the Indemnitor shall constitute an acknowledgment of the obligation to indemnify the Indemnitee hereunder. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceeding other than Claims claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtained.

Third Person Claims. 8.2.1 Promptly after a party DoveBid Indemnitee has received notice of of, or has actual knowledge of Knowledge of, any Claim against it covered claim by a third person not a party to this Agreement ("Third Person"), or the commencement of any action or proceeding by a third person with respect to any such Claim, such party Third Person (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceedingproceeding being a "Third Person Claim") that could give rise to a right of indemnification under this Agreement, the DoveBid Indemnitee shall, as a condition precedent to a claim with respect thereto being made against a Shareholder, give such Shareholder written notice of such Third Person Claim describing in reasonable detail the nature of such Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount of Damages attributable to the Third Person Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the DoveBid Indemnitee's request for indemnification under this Agreement; provided, however, that the failure of the DoveBid Indemnitee to give such timely notice will not affect hereunder shall relieve the right to Shareholder of its indemnification hereunder with respect to such Claim, action or proceeding, except obligations under this Agreement only to the extent that such failure materially prejudices such Shareholder's ability to defend such claim. 8.2.2 DoveBid shall defend any Third Person Claim, and the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other party has been actually prejudiced as professionals' and experts' fees and court or arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a result of such failureClaim made by any DoveBid Indemnitee hereunder. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes DoveBid fails to defend against the such Third Person Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor such Shareholder shall have the right to assume and control the defense thereof. Such Shareholder shall have the right to receive copies of the Claim by appropriate proceedings all pleadings, notices and communications with counsel reasonably acceptable respect to the Third Person Claim to the extent that receipt of such documents by such Shareholder does not affect any privilege relating to the DoveBid Indemnitee. The Indemnitee , and may participate in settlement negotiations with respect to the defenseThird Person Claim. No DoveBid Indemnitee shall enter into any settlement of a Third Person Claim without the prior written consent of such Shareholder (which consent shall not be unreasonably withheld), at its sole expenseprovided that, of if such Shareholder shall have consented in writing to any such Claim for which the Indemnitor settlement, then such Shareholder shall have assumed no right to object to any Claim by any DoveBid Indemnitee for indemnity under Article VIII for the defense pursuant amount of such settlement; and such Shareholder will remain responsible to indemnify the DoveBid Indemnitee for all Damages that may be incurred arising out of, resulting from or caused by the Third-Party Claim to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel fullest extent provided in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedArticle VIII.

Third Person Claims. 8.3.1 Promptly after a party DoveBid Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person"), or the commencement of any action or proceeding by a third person with respect to any such Claim, such party Third Person (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceedingproceeding being a "Third Person Claim") that could give rise to a right of indemnification under this Agreement, and before the DoveBid Indemnitee pays or settles any such claim, the DoveBid Indemnitee shall give Xxxxxxx X. Trees and Xxxxxxx Xxxxxx, as representatives of the Shareholders and Beneficiaries (the "Representatives"), written notice of such Third Person Claim describing in reasonable detail the nature of such Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount of damages attributable to the Third Person Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim), the basis for the DoveBid Indemnitee's request for indemnification under this Agreement, and whether DoveBid elects to defend such claim or tender such claim to the Representatives; provided, however, that the failure of the DoveBid Indemnitee to give such timely notice will not affect hereunder shall relieve the right Shareholders and Beneficiaries of their indemnification obligations under this Agreement to indemnification hereunder with respect to such Claimthe extent, action or proceeding, except but only to the extent that that, such failure materially prejudices the other party has been actually prejudiced as a result defense of such failure. If claim. 8.3.2 In the Indemnitor has notified event that DoveBid elects to defend such claim, DoveBid shall defend, and the Indemnitee Representatives may, if they so elect by written notice delivered to DoveBid within thirty (30) five business days from the receipt of receiving notice of the foregoing notice that it wishes to defend against the Third Person Claim, unless there exists join in the defense of, any Third Person Claim, and if the Representatives elect to join in such defense, and such defense is ultimately unsuccessful, the Damages incurred by DoveBid in connection with such Third Person Claim shall be treated as an Uncontested Claim hereunder. The costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a potential conflict of interest between the parties, then the Indemnitor Claim (as defined in Section 8.5) made by any DoveBid Indemnitee hereunder. The Representatives shall have the right to assume receive copies of all pleadings, notices and control the defense of the Claim by appropriate proceedings communications with counsel reasonably acceptable respect to the Third Person Claim to the extent that receipt of such documents by the Representatives do not affect any privilege relating to the DoveBid Indemnitee. The Indemnitee , and may participate in settlement negotiations with respect to the defenseThird Person Claim. No DoveBid Indemnitee shall enter into any settlement of a Third Person Claim without the prior written consent of the Representatives (which consent shall not be unreasonably withheld); provided, at its sole expensethat if the Representatives shall have consented in writing to any such settlement, then the Representatives shall have no power or authority to object to any Claim by any DoveBid Indemnitee for indemnity under Article VIII for the amount of such settlement; such Claim shall be treated as an Uncontested Claim hereunder, and the Shareholders and Beneficiaries will remain responsible to indemnify the DoveBid Indemnitee for all Damages that may be incurred arising out of, resulting from or caused by the Third Person Claim to the fullest extent provided in Article VIII. 8.3.3 In the event that DoveBid elects to tender a Third Person Claim to the Representatives, the Representatives shall defend such claim, and shall have no power or authority to object to any Claim by any DoveBid Indemnitee for indemnity under Article VIII for the amount of any Damages arising out of or in connection with such Third Person Claim; such Claim shall be treated as an Uncontested Claim hereunder, and the Shareholders and Beneficiaries will remain responsible to indemnify the DoveBid Indemnitee for which all Damages arising out of, resulting from or caused by the Indemnitor shall have assumed the defense pursuant Third Person Claim to the preceding sentence, fullest extent provided in Article VIII. The Representatives may not enter into any settlement of a Third Person Claim tendered to the Representatives without the prior written consent of DoveBid; provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or Representatives may settle such claim without DoveBid's prior written consent if such settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from involves only the payment of money damagesdamages by the Shareholders and Beneficiaries, and such settlement provides for a complete release of all DoveBid Indemnitees from all liabilities in connection with such Third Person Claim. The Indemnitee DoveBid shall have the right to receive copies of all pleadings, notices and communications with respect to the tendered Third Person Claim, and the costs and expenses incurred by DoveBid in connection with monitoring the Representatives' defense of such claim shall be entitled included in the Damages for which DoveBid shall receive uncontested indemnity pursuant to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedthis Section 8.3.3.

Third Person Claims. Promptly after (a) In order for a party has received 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 third party against the Indemnified Party, such Indemnified Party must promptly notify the Indemnitor in writing, and in reasonable detail, of the third party claim after receipt by such Indemnified Party of written notice of or has actual knowledge the third party claim, but the failure to so notify the Indemnitor shall not relieve it of any Claim liability it may have to the Indemnified Party except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor. Thereafter, the Indemnified Party shall deliver to the Indemnitor copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third party claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third party claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint after receipt thereof and shall deliver to the Indemnitor after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third party claim. (b) In the event of the initiation of any legal proceeding against it covered the Indemnified Party by a third party party, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or the commencement of otherwise deal with any action proceeding, claim, or proceeding by a third person with respect demand which relates to any such Claimloss, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such claim liability or commencement of such action or proceedingdamage indemnified against hereunder; provided, however, that the failure Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to give cooperate fully with each other in connection with the defense, negotiation or settlement of any such notice will not affect the right to indemnification hereunder with respect to such Claim, action or legal proceeding, except to claim or demand. To the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified elects not to defend such proceeding, claim or demand, and the Indemnitee within thirty (30) days from Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the receipt Indemnified Party may retain counsel, at the expense of the foregoing notice that it wishes to defend against the ClaimIndemnitor, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemniteesuch proceeding. The Indemnitee may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless Without the consent of the Indemnitee is obtainedother party, such consent not to be unreasonably withheld if the settlement only requires the payment of money, neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier's check within 30 days after the date of such notice.

Third Person Claims. Promptly after a any party hereto (the "Indemnified Party") has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect Third Person that may give rise to any such Claima right of indemnification hereunder, such party (sometimes referred to as the “Indemnitee”) Indemnified Party shall give to the other party obligated to provide indemnification hereunder (sometimes referred to as the “Indemnitor”an "Indemnifying Party") written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder relieve such Indemnifying Party from liability under this Section with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnifying Party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty The Indemnifying Party (30at its own expense) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right and shall be given the opportunity to assume and control associate with the Indemnified Party in the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee such claim, suit or proceedings, and may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that select counsel for the Indemnitor shall act as lead Indemnified Party, such counsel in all matters pertaining to be reasonably satisfactory to the defense or Indemnified Party. The Indemnified Party shall not, except at its own cost, make any settlement of with respect to any such Claimsclaim, suit or proceeding other than Claims that in without the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee is obtainedIndemnifying Party, which consent shall not be unreasonably withheld or delayed.

Third Person Claims. Promptly after a (a) Any party has received notice seeking indemnification provided under this Agreement in respect of, arising out of or has actual knowledge involving a claim or demand made by any third Person against the Indemnified Party, other than an Indemnifiable Proceeding (a “Third Person Claim”), shall notify the Indemnitor in writing, and in reasonable detail, of any the Third Person Claim against it covered within ten (10) Business Days (or reasonably more promptly dependent upon the circumstances) after receipt by a third party or the commencement such Indemnified Party of any action or proceeding by a third person with respect to any such Claim, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of the Third Person Claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within ten (10) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim or commencement is based and describe in reasonable detail (to the extent known) the facts giving rise to an alleged basis for the claim and the amount of such action or proceedingthe liability asserted against the Indemnitor by reason of the Third Person Claim; provided, however, that the failure or delay of the Indemnified Party to give such notice will to the Indemnitor as provided in this Section 11.4 shall not affect relieve the right to indemnification Indemnitor of its obligations hereunder with respect to such Claim, action or proceeding, except to the extent that the other party has Indemnitor shall have been actually materially prejudiced as a result of by such failure. If . (b) In the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt event of the foregoing notice that it wishes to defend against the initiation of a Third Person Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right sole and absolute right, subject to this Section 11.4(b), after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any Proceeding which relates to any Losses and Expenses alleged to be indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such Proceeding with counsel of its choice and at its expense; provided further, however, that the Indemnitor shall not be entitled to assume or continue control of the defense of any Third Person Claim if (i) the Third Person Claim relates to or arises in connection with any criminal Proceeding, (ii) the Third Person Claim seeks, as its primary purpose, an injunction or equitable relief against any Indemnified Party, (iii) the potential Losses and Expenses that the Indemnified Party may suffer as a result of the Third Person Claim is subject to, and (in combination with all other such Losses and Expenses with respect to which indemnification is sought or has otherwise been previously paid) is likely to result in more monetary liability for the Indemnified Party than the Indemnitor (taking into account the amounts available for indemnification pursuant to this Article XI), or (iv) the Third Person Claim is asserted by a customer of the Acquired Company or the Business (other than the Persons set forth on Schedule 11.4(b), in each case so long as none of the foregoing clauses (i), (ii) or (iii) apply with respect to such Third Person Claim) or any Governmental Body. By assuming control over the defense, negotiation and settlement of the Third Person Claim, Indemnitor shall be deemed to have confirmed its obligation to indemnify the Indemnified Party with respect to any Losses and Expenses arising therefrom as relating thereto. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any Third Person Claim at the Indemnitor’s expense. To the extent the Indemnitor elects not to defend such Third Person Claim, or is not entitled to defend such Third Person Claim pursuant to this Section 11.4(b), and the Indemnified Party defends against or otherwise deals therewith, the Indemnified Party may retain counsel at the expense of the Indemnitor, which counsel shall be reasonably acceptable to the Indemnitor, and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, Proceeding; provided, however, that counsel for the Indemnitor shall act as lead counsel in be obligated pursuant to this Section 11.4 to pay for only one firm of counsel, per applicable jurisdiction, for all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damagesIndemnified Parties. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which Neither the Indemnitor has not assumed nor the defense of any claim. The Indemnitor Indemnified Party may not settle any Claim such Proceeding which settlement obligates the other party to pay money (including pursuant to this Article XI), to perform obligations (including to refrain from taking any actions) or to admit liability without obtaining a release for the benefit of the Indemnitee, unless the prior written consent of the Indemnitee other party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnified Party shall refuse to consent to the settlement of any Third Person Claim, so long as only money damages are involved and there is obtainedno admission of liability or wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such Third Person Claim shall not exceed the amount for which the Third Person Claim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with the proposed settlement to which it is entitled to indemnification. (c) To the extent of any conflict or overlap between this Article XI and Section 8.1(c) (relating to Tax Contests), the provisions of Section 8.1(c) shall control with respect to Tax Contests.

Third Person Claims. Promptly after (a) In order for a party has received notice Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or has actual knowledge of involving a claim or demand made by any Claim third Person against it covered by a third party or the commencement of any action or proceeding by a third person with respect to any such ClaimIndemnified Party, such party (sometimes referred to as Indemnified Party must notify the “Indemnitee”) shall give Indemnitor in writing, and in reasonable detail, of the other party (sometimes referred to as the “Indemnitor”) third Person claim with reasonable promptness after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, with reasonable promptness after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in the case of court papers, within such claim or commencement of such action or proceedingtime as may be necessary to enable the Indemnitor to respond to court proceedings on a timely basis); provided, however, that the failure of any Indemnified Party to give such prompt notice will of a claim or to promptly deliver copies of all notices and documents as required by this Section 10.5(a) shall not affect the right to indemnification hereunder with respect to such ClaimIndemnified Party’s rights under this Article 10 except if, action or proceeding, except and only to the extent that that, the other party Indemnitor’s ability to defend has been actually materially prejudiced as a result of by such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt failure of the foregoing notice that it wishes to defend Indemnified Party. (b) In the event of the initiation of any legal proceeding against the ClaimIndemnified Party by a third Person, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice (which shall be a firm experienced in the type of matter giving rise to the legal proceeding and which counsel shall be reasonably satisfactory to the Indemnitor) and to control, defend against, negotiate and otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, (i) the Indemnitor will be deemed to have waived its right to dispute its liability to the Indemnified Party with respect to any third party claim as to which it elects to control the defense, (ii) that all such proceedings, claims or demands to which the Indemnitor elects to control the defense of shall be vigorously and diligently prosecuted by the Indemnitor and (iii) that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. If the Indemnitor does not assume control of the defense of a third Person claim, or abandons or fails to diligently pursue the defense of a third Person claim, the Indemnified Party shall have the right to control such defense. The party controlling the defense of such third Person claim (the “Controlling Party”) shall keep the non-Controlling Party advised of the status of such third Person claim and the defense thereof and shall consider in good faith the recommendations made by the non-Controlling Party with respect thereto. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding. If the Claim Indemnitor elects to assume control of the defense of a third Person claim, any fees and expenses of legal counsel employed by appropriate proceedings the Indemnified Party with counsel reasonably acceptable respect to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim third Person claim shall be considered Losses for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall Indemnified Party may be entitled to indemnification for under this Article 10 only if the reasonable fees and expenses of its counsel for any period during which named parties in such third Person claim include both the Indemnitor and the Indemnified Party and the Indemnified Party has not assumed been advised by legal counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the defense of Indemnitor or the Indemnified Party has been advised in writing by legal counsel that they should be represented by separate counsel because a conflict exists between the Indemnitor and the Indemnified Party. Neither the Indemnitor nor the Indemnified Party may settle or compromise any claim. The Indemnitor may not settle any Claim such proceeding, which settlement or compromise obligates the other party to pay money, to perform obligations or to admit liability without obtaining a release for the benefit of the Indemnitee, unless the written consent of the Indemnitee other party, such consent not to be unreasonably withheld or delayed. (c) The parties agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. Such cooperation shall include the retention and the provision of records and information which is obtainedreasonably relevant to such third Person claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (d) After any final Court Order shall have been rendered and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnifiable by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer within five (5) days after the date of such notice.

Third Person Claims. Promptly after a party has received notice of or has actual knowledge of any Claim claim against it covered by Section 10 by a third party Third Party or the commencement of any action or proceeding by a third person Third Person with respect to any such Claimclaim, such party (sometimes referred to as the “"Indemnitee”") shall give the other party (sometimes referred to as the “"Indemnitor”") written notice of such claim or commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between claim by the partiesThird Person, then the Indemnitor shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, provided that the Indemniteeassumption of such defense by the Indemnitor shall constitute an acknowledgment of the obligation to indemnify the Indemnitee hereunder. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceeding other than Claims claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtained.

Third Person Claims. Promptly after a party has received notice (a) Any Indemnified Party seeking indemnification in respect of, arising out of or has actual knowledge of any Claim against it covered involving a claim or demand made by a third party Person against the Indemnified Party (a "Third Person Claim") shall notify the Indemnitor in writing, and in reasonable detail, of such Third Person Claim within 10 days after the Indemnified Party's receipt of written notice thereof. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five Business Days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. Any Claim Notice involving a Third Person Claim shall refer to the provision of this Agreement upon which the claim described in such Claim Notice is based and describe in reasonable detail the facts giving rise to an alleged basis for such claim and the amount, if known, of the Liability asserted against the Indemnitor by reason of such claim. The failure to give notice in accordance with this Section 10.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. (b) The Indemnitor shall, subject to the limitations set forth in this Section 10.5(b), have the sole and absolute right, after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control and defend against, negotiate or otherwise deal with any Proceeding which relates to any Third Person Claim; provided, however, that if the commencement Indemnitor elects to control the Proceeding, such counsel shall be reasonably acceptable to the Indemnified Party and the Indemnified Party may participate in any such Proceeding with counsel of its choice and at its own expense (other than in the case of fees and expenses that are incurred prior to the date the Indemnitor effectively assumes control of such defense), and provided further, that if in the reasonable opinion of the Indemnified Party's counsel, a conflict of interest exists or may arise in the event the Indemnitor elects to control or defend any action Third Person Claim, the Indemnified Party may, at its sole election, solely control and defend against, negotiate or proceeding otherwise deal with any such claim and such fees and expenses will be born by a third person the Indemnitor to the extent such fees and expenses were incurred in connection with defending against those elements of the Proceeding with respect to any which such conflict exists. Additionally, to the extent that (i) the Indemnitor elects not to defend such Third Person Claim, or (ii) the claim for indemnification relates to or arises in connection with any criminal Proceeding, the Indemnified Party may defend against, deal with and otherwise control such party (sometimes referred to as Third Person Claim using counsel of its choosing, at the “Indemnitee”) shall give expense of the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceeding; provided, however, that the failure Indemnitor shall be obligated pursuant to give such notice will not affect the right this Section 10.5(b) to indemnification hereunder with respect to such Claim, action pay for only one firm of counsel (and one local or proceeding, except special counsel in each applicable jurisdiction or to the extent that reasonably engaged by the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30Indemnified Party) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemniteefor all Indemnified Parties. The Indemnitee may participate parties hereto agree to cooperate fully with each other in connection with the defense, at its sole expense, negotiation or settlement of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, Third Person Claim; provided, however, that counsel for neither the Indemnitor nor the Indemnified Party may settle or compromise any such Third Person Claim without the written consent of the Indemnified Party or the Indemnitor, as applicable, which consent shall act as lead counsel in all matters pertaining to the defense not be unreasonably withheld, or settlement of such Claimsdelayed; provided, suit or proceeding other than Claims further, that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of may settle or compromise any claim. The Indemnitor may not settle any Third Party Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedIndemnified Party if (A) the Indemnitor pays or agrees to pay or cause to be paid all amounts arising out of such settlement or compromise, (B) such settlement or compromise would not encumber any of the material assets of any Indemnified Party or impose any restriction or condition that would apply to or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party's business, (C) the Indemnitor obtains, as a condition of such settlement or compromise, a complete release of any Indemnified Party that could reasonably be affected by such Third-Party Claim, and (D) such settlement or compromise does not involve any admission of liability or wrongdoing by any Indemnified Party or any of its Affiliates. (c) To the extent of any inconsistency between this Section 10.5 and Section 7.1(b) (relating to Tax contests), the provisions of Section 7.1(b) shall control with respect to Tax contests.

Third Person Claims. Promptly after In the event that any claim for which a party has received notice Party providing indemnification (the "Indemnifying Party") would be liable to a Party or any of its officers, directors, employees, agents or has actual knowledge of any Claim representatives entitled to indemnification hereunder (the "Indemnified Party") is asserted against it covered or sought to be collected by a third party Third Person, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the commencement estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of any action the final amount of such claim) (the "Claim Notice"). The Indemnifying Party shall have 30 days from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party (a) whether or proceeding by a third person not it disputes its liability to the Indemnified Party hereunder with respect to any such Claimclaim, and (b) if it does not dispute such party (sometimes referred liability, whether or not it desires, at its sole cost and expense, to as defend the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of Indemnified Party against such claim or commencement of such action or proceedingclaim; provided, however, that the failure Indemnified Party is hereby authorized prior to give such notice will not affect and during the right Notice Period to indemnification hereunder with respect file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to such Claim, action or proceeding, except to protect its interests. In the extent event that the other party has been actually prejudiced as a result of such failure. If Indemnifying Party notifies the Indemnitor has notified Indemnified Party within the Indemnitee within thirty (30) days from the receipt of the foregoing notice Notice Period that it wishes does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor Indemnifying Party shall have the right to assume and control the defense defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Claim by appropriate proceedings with counsel reasonably acceptable Indemnified Party becoming subject to liability. If the Indemnitee. The Indemnitee Indemnified Party desires to participate in, but not control, any such defense or settlement, it may participate in the defense, do so at its sole own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount of any such Claim for claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which the Indemnitor shall have assumed the such defense pursuant to the preceding sentenceis unsuccessful, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled conclusively deemed to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining be a release for the benefit liability of the IndemniteeIndemnifying Party hereunder (subject, unless if it has timely disputed liability, to a determination in accordance with Article 7.03.03 that the consent of the Indemnitee disputed liability is obtainedcovered by this Article 7.)

Third Person Claims. Promptly after (a) If a claim or demand is made against an Indemnified Party, or an Indemnified Party shall otherwise learn of an assertion, by any Person who is not a party has received notice of to this Agreement (or has actual knowledge of any Claim against it covered by an Affiliate thereof) as to which an Indemnitor is reasonably likely to be obligated to provide indemnification pursuant to this Agreement (a third party or the commencement of any action or proceeding by a third person with respect to any such “Third Party Claim”), such party (sometimes referred to as Indemnified Party will notify the “Indemnitee”) shall give Indemnitor in writing, and in reasonable detail, of the other party (sometimes referred to as the “Indemnitor”) written notice Third Party Claim reasonably promptly after becoming aware of such claim or commencement of such action or proceedingThird Party Claim; provided, however, that the failure to give such notice notification will not affect the right to indemnification provided hereunder with respect to such Claim, action or proceeding, except to the extent that the other party has Indemnitor shall have been actually prejudiced as a result of such failure. If Thereafter, the Indemnitor has notified Indemnified Party will deliver to the Indemnitee within thirty Indemnitor, promptly after the Indemnified Party’s receipt thereof, copies of all material notices and documents (30including court papers) days from the receipt received or transmitted by or on behalf of the foregoing notice Indemnified Party relating to the Third Party Claim; provided, however, that it wishes failure to defend against give such notification will not affect the Claim, unless there exists a potential conflict of interest between indemnification provided hereunder except to the parties, then extent the Indemnitor shall have been actually prejudiced as a result of such failure. (b) If a Third Party Claim is made against an Indemnified Party, the Indemnitor will be entitled to participate in or to assume the defense thereof (in either case, at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnified Party. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, that if in the Indemnified Party’s reasonable judgment a conflict of interest exists in respect of such claim, such Indemnified Party will have the right to assume employ separate counsel reasonably satisfactory to the Indemnitor to represent such Indemnified Party and control in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnified Parties similarly situated) shall be paid by such Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Claim by appropriate proceedings with counsel reasonably acceptable Indemnified Party will have the right to the Indemnitee. The Indemnitee may participate in the defensedefense thereof and to employ counsel, at its sole own expense, separate from the counsel employed by the Indemnitor, it being understood that the Indemnitor will control such defense. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnified Party copies of all material correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnified Party informed of all material developments relating to or in connection with such Third Party Claim. If the Indemnitor chooses to assume the defense of a Third Party Claim, the parties hereto will cooperate in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor), which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnitor’s request) the provision to the Indemnitor of records and information that are reasonably relevant to such Third Party Claim, and making employees, officers, directors, and, to the extent practicable, agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (c) No Indemnitor will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnified Party’s prior written consent (which consent will not be unreasonably withheld, delayed or conditioned); provided, that if the Indemnitor assumes the defense of any Third Party Claim, the Indemnified Party will agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnitor may recommend and that by its terms obligates the Indemnitor to pay the full amount of Indemnifiable Losses in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnified Party and its Affiliates completely from all Liability in connection with such Third Party Claim; provided, however, that the Indemnified Party may refuse to agree to any such settlement, compromise or discharge that (i) provides for which injunctive or other nonmonetary relief affecting the Indemnified Party or any of its Affiliates, (ii) includes the admission of guilt or responsibility of the Indemnified Party or any of its Affiliates or (iii) in the reasonable opinion of the Indemnified Party, would otherwise materially adversely affect the Indemnified Party or any of its Affiliates. Whether or not the Indemnitor shall have assumed the defense pursuant of a Third Party Claim, the Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnitor’s prior written consent. (d) In the event of payment in full by an Indemnitor to any Indemnified Party in connection with any Third Party Claim, such Indemnitor will be subrogated to and shall stand in the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement place of such ClaimsIndemnified Party as to any events or circumstances in respect of which such Indemnified Party may have any right or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim or against any other Person. Such Indemnified Party will cooperate with such Indemnitor in a reasonable manner, suit and at the cost and expense of such Indemnitor, in prosecuting any subrogated right or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtained.

Third Person Claims. Promptly after a party any Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect Third Person that may give rise to any such Claima right of indemnification hereunder, such party (sometimes referred to as the “Indemnitee”) Indemnitee shall give to the other party (sometimes referred Indemnifying Party obligated to as the “Indemnitor”) provide indemnification hereunder written notice of such claim or the commencement of such action or proceeding; providedPROVIDED, howeverHOWEVER, that the failure to give such notice will not affect the right to indemnification hereunder relieve such Indemnifying Party from liability under this Section 9 with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnifying Party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty The Indemnifying Party (30at its own expense) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right and shall be given the opportunity to assume and control associate with the Indemnitee in the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentenceclaim, providedaction or proceeding; PROVIDED, howeverHOWEVER, that counsel for the Indemnitor Indemnitee shall act as lead counsel in all matters pertaining to the defense or settlement of any such Claimsclaim, suit action or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damagesproceeding. The Indemnitee shall not, except at its own cost, make any settlement with respect to any such claim, action or proceeding without the prior consent of the Indemnifying Party, which consent shall not be entitled unreasonably withheld or delayed. It is understood and agreed that in situations where failure of the Indemnitee to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of claim expeditiously could have an adverse effect on the Indemnitee, unless the consent failure of the Indemnifying Party to act upon the Indemnitee's request for consent to such settlement within 10 business days of the Indemnifying Party's receipt of notice thereof from the Indemnitee is obtainedshall be deemed to constitute consent by the Indemnifying Party to such settlement for purposes of this Section 9.

Third Person Claims. Promptly after a party an Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement (Third Person") or the commencement of any action or proceeding by a third person with respect to any such ClaimThird Person, such party (sometimes referred to as the “Indemnitee”) Indemnitee shall give the other party Joel L. Owens and Jolene L. Xxxxx (sometimes referred to as the “Indemnitor”xxx "Stockxxxxxx Xxxxxxxntatives") written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect effect the Indemnitees' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has Stockholders' Representatives have, or the stockholders have, been actually prejudiced as a result of such failure. If the Indemnitor has notified The Stockholder Representatives shall notify the Indemnitee within thirty seven (307) days from the receipt of the foregoing notice that it wishes they wish to defend against the Claim, unless there exists a potential conflict of interest between claim by the parties, then the Indemnitor shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the IndemniteeThird Person. The Indemnitee may participate in the defense, at its sole expense, defense of any such Claim claim for which the Indemnitor Stockholder Representatives shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Stockholder Representatives shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, that Indemnitee shall control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has Stockholder Representatives have not assumed the defense of any claim. The Indemnitor may Whether or not settle the Stockholder Representatives shall have assumed the defense of any Claim claim, neither the Indemnitee nor the Stockholder Representatives shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of the party controlling the defense to act upon a request for consent to such settlement within five business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Section 5.1.

Third Person Claims. Promptly after a party Buyer Indemnitee or a Stockholder entitled to indemnification hereunder has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect to any such ClaimThird Person, such party (sometimes referred to Buyer Indemnitee or Stockholder, as the “Indemnitee”) shall case may be, shall, as a condition precedent to a claim pursuant to this Article 7, give the other party (sometimes referred to Buyer, Parent or Stockholders, as the “Indemnitor”) written case may be, required to indemnify such Buyer Indemnitee or Stockholder pursuant to this Article 7 notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the such Buyer Indemnitee or Stockholder's right to indemnification hereunder with respect to such Claimclaim, action or proceeding, proceeding except to the extent that the other party has been actually prejudiced as a result of by such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes failure to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemniteegive notice. The Buyer Indemnitee or Stockholder, as the case may participate in the defensebe, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification under this Article 7 for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has indemnifying parties have not assumed the defense of any claim. The Indemnitor may not It is understood and agreed that in situations where failure to settle any Claim without obtaining a release for claim expeditiously could have an adverse effect on the benefit indemnified party, the failure of the Indemnitee, unless the indemnifying parties to object thereto within five (5) business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of the Indemnitee is obtainedthis Article 7.

Third Person Claims. Promptly after a party an Indemnitee has received notice ------------------- of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person Third Person, the Indemnitee shall, as a condition precedent to a claim with respect to any such Claimthereto being made against the Escrow Agreement, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Stockholder Representative written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect -------- ------- effect the Indemnities' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has Stockholder Representative has, or the Stockholders have, been actually prejudiced as a result of such failure. If the Indemnitor has notified Stockholder Representative notifies the Indemnitee within thirty (30) 30 days from the receipt of the foregoing notice that it he wishes to defend against the Claimclaim by the Third Person and if the estimated amount of the claim, unless there exists a potential conflict together with all other claims made against the Escrow Funds that have not been settled, is less than the remaining balance of interest between the partiesEscrow Funds, then the Indemnitor Stockholder Representative shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the IndemniteeStockholder Representative shall be entitled to reimbursement out of the Escrow Funds for such defense. The Indemnitee may participate in the defense, at its sole expense, expense of any such Claim claim for which the Indemnitor Stockholder Representative shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Stockholder Representative shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, that Indemnitee shall -------- ------- control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor Stockholder Representative has not assumed the defense of any claim. The Indemnitor may Whether or not settle the Stockholder Representative shall have assumed the defense of any Claim claim, neither the Indemnitee nor the Stockholder Representative shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of a party controlling the defense to act upon a request for consent to such settlement within five business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Section 8.1.

Third Person Claims. Promptly after a party an Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("THIRD PERSON") or the commencement of any action or proceeding by a third person Third Person, the Indemnitee shall, as a condition precedent to a claim with respect to any such Claimthereto being made under this Agreement, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Stockholders written notice of such claim or the commencement of such action or proceeding; provided, however, however that the failure to give such notice will not affect the Indemnitee's right to indemnification hereunder with respect to such Claim, action or proceedinghereunder, except to the extent that the other party has Stockholders have been actually prejudiced as a result of such failure. If the Indemnitor has notified Stockholders notify the Indemnitee within thirty (30) 30 days from the receipt of the foregoing notice that it wishes the Stockholders wish to defend against the Claim, unless there exists a potential conflict of interest between claim by the partiesThird Person, then the Indemnitor Stockholders shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor Stockholders shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Stockholders shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, that Indemnitee shall control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could reasonably be expected to have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has Stockholders have not assumed the defense of any claim. The Indemnitor may Whether or not settle the Stockholders shall have assumed the defense of any Claim claim, neither the Indemnitee nor the Stockholders shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtained.understood and agreed that in situations where failure to settle a claim expeditiously would reasonably be expected to have an adverse effect on the party wishing to settle, the failure of the other party to act upon a request for consent to such settlement within ten (10) business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Article X.

Third Person Claims. Promptly after In the event any legal proceeding shall be instituted or any claim or demand shall be asserted in writing by any third Person in respect of which payment may be sought by one party hereto from the other party under the provisions of this Article XI (each, a party has received notice of or has actual knowledge of any “Third Person Claim”), the Indemnified Party shall deliver a Claim against it covered by a third party or the commencement of any action or proceeding by a third person Notice with respect to such Third Person Claim as promptly as reasonably practicable (and in any event no later than fifteen (15) days) after receipt by such Claim, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Indemnified Party of written notice of such claim or commencement of such action or proceedingthe Third Person Claim; provided, however, that the failure to give such notice will as provided in this Section 11.5 shall not affect relieve the right to indemnification Indemnitor of its liabilities or obligations hereunder with respect to such Claim, action or proceeding, except to the extent that the other party has it shall have been actually materially prejudiced as a result of by such failure. If Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Person Claim, the Indemnified Party shall notify the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt with a copy of the foregoing complaint within five (5) business days after receipt thereof; provided, that the failure to give notice that it wishes to defend against the Claim, unless there exists and a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, copy of any such Claim for which documents as provided in this Section 11.5 shall not relieve the Indemnitor of its liabilities or obligations hereunder except to the extent it shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of been materially prejudiced by such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedfailure.

Third Person Claims. Promptly after a party an Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement (“Third Person”) or the commencement of any action or proceeding by a third person Third Person, the Indemnitee shall, as a condition precedent to a claim with respect to any such Claimthereto being made against an Indemnifying Party, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Indemnifying Party written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder with respect to such Claim, action or proceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty The Indemnifying Party (30at its own expense) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right and shall be given the opportunity to assume and control associate with the Indemnitee in the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defensesuch claim, at its sole expensesuit or proceedings, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Indemnitee shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings. The Indemnitee shall not, except at its own cost, make any settlement with respect to any such claim, suit or proceeding other than Claims without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. It is understood and agreed that in situations where failure of the Indemnitee to settle a claim expeditiously could have an adverse effect on the Indemnitee, the failure of the Indemnifying Party to act upon the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemniteerequest for consent to such settlement within five business days of the Indemnifying Party’s business apart receipt of notice thereof from the payment of money damages. The Indemnitee shall be entitled deemed to indemnification constitute consent by the Indemnifying Party of such settlement for the reasonable fees and expenses purposes of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedthis Section 8.5.

Third Person Claims. Promptly after a party an Indemnitee has received notice ------------------- of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect to any such ClaimThird -------------- Person, such party (sometimes referred to as the “Indemnitee”) Indemnitee shall give the other party (sometimes referred to as the “Indemnitor”) Equityholders written notice of such claim or the commencement of such action or proceeding; provided, however, that the -------- ------- failure to give such notice will not affect effect the Indemnitees' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has Equityholders have been actually and materially prejudiced as a result of such failure. If the Indemnitor has notified Equityholders notify the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes they wish to defend against the Claim, unless there exists a potential conflict of interest between claim by the partiesThird Person, then the Indemnitor Equityholders shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor Equityholders shall have assumed the defense pursuant to the preceding sentence, provided, however, however that counsel for the Indemnitor -------- ------- Equityholders shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, further, however, -------- ------- ------- that Indemnitee shall control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has Equityholders have not assumed the defense of any claim. The Indemnitor may Whether or not settle the Equityholders shall have assumed the defense of any Claim claim, neither the Indemnitee nor the Equityholders shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior written consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of a party controlling the defense to act upon a request for consent to such settlement within five business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Section 8.1.

Third Person Claims. Promptly after a party the Buyer (or, from and after the Closing Date, Xxxxxx) has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person Third Person for which Xxxxxx or the Buyer is entitled to indemnification under this Article VIII, the Buyer and Xxxxxx shall, as a condition precedent to a claim with respect to any such Claimthereto being made against the Escrow Funds, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Sellers written notice of such claim or the commencement of such action or proceedingproceeding specifying in reasonable detail the nature of such claim or action; provided, however, that the failure to give such notice will notification shall not affect the right to indemnification provided hereunder with respect to such Claim, action or proceeding, except to the extent that the other party has Sellers shall have been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee Sellers notify Xxxxxx within thirty (30) 30 days from the receipt of the foregoing notice that it wishes they wish to defend against the Claimclaim by the Third Person and if the reasonable estimated amount payable with respect to the claim, unless there exists a potential conflict together with amounts reasonably estimated to be payable with respect to all other claims made against the Escrow Funds that have not been settled, is less than the remaining balance of interest between the partiesEscrow Funds, then the Indemnitor Sellers shall have the right right, at their sole expense, to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Xxxxxx and the IndemniteeBuyer. The Indemnitee If the reasonably estimated amount payable with respect to the claim, together with amounts reasonably estimated to be payable with respect to all other claims made against the Escrow Funds that have not been settled, is greater than the remaining balance of the Escrow Funds, then Xxxxxx and the Buyer (on the one hand) and the Sellers (on the other hand) shall cooperate in a joint defense of the claim, with the party whose risk of loss with respect to such claim is greater (taking into account the amount of the remaining Escrow Funds and the amount by which the amounts reasonably estimated to be payable with respect to the claim exceed such remaining Escrow Funds) being the lead counsel in the defense. If the Sellers do assume the defense of such claim, Xxxxxx and the Buyer may participate in the defense, at its their sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Sellers shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, that Xxxxxx and the Buyer shall control the defense of, but the Sellers may participate in the defense of (i) any Tax audit or proceeding other than Claims that would reasonably be expected to have a Material Adverse Effect for any taxable period ending on or after the Closing Date and (ii) any claim or proceeding that in the Indemnitee’s Xxxxxx' reasonable judgment could would have a material and adverse effect on Indemnitee’s business Material Adverse Effect apart from the payment of money damagesfinancial impact. The Indemnitee Xxxxxx shall be entitled to indemnification payment from the Escrow Funds for the reasonable fees and expenses of its counsel in defending a claim for any period during which the Indemnitor has Sellers have not assumed the defense of any claim. The Indemnitor may not settle claim and for any Claim without obtaining a release for the benefit matter described in clause (i) or (ii) of the Indemniteeimmediately preceding sentence, unless provided it is otherwise entitled to indemnification hereunder. Whether or not the Sellers shall have assumed the defense of any claim, neither Xxxxxx, the Buyer nor the Sellers shall make any settlement with respect to any such claim, suit or proceeding without the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of the party not controlling the defense to act upon a request for consent to such settlement within ten (10) days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Section 8.4. Such notice shall prominently specify (i) the material terms and conditions of such settlement, (ii) that immediate attention thereto is requested and (iii) that consent to such settlement will be deemed granted upon a failure to respond timely.

Third Person Claims. Promptly after (a) If any third Person shall notify a party has received notice of Buyer Indemnified Party or has actual knowledge of any Claim against it covered by a third party or Shareholder Indemnified Party (the commencement of any action or proceeding by a third person "Indemnified Party") with respect to any such matter (a "Third Person Claim") that may give rise to a claim for indemnification pursuant to Sections 8.1 or 8.2, such party (sometimes referred to then the Indemnified Party shall promptly notify the Shareholders or Buyer, as the “Indemnitee”) shall give case may be (the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceeding; provided"Indemnifying Party"), however, that the failure thereof in writing. Failure to give such notice will shall not affect the right to indemnification hereunder with respect to such Claim, action or proceeding, provided under this Article 8 except to the extent that such failure shall have actually and materially prejudiced the other party has been actually prejudiced Indemnifying Party as a result thereof. (b) The Indemnifying Party shall notify the Indemnified Party in writing, as promptly as possible (but in any case before the due date for the answer or response to a claim) after the date of the notice of claim given by the Indemnified Party to the Indemnifying Party under Section 8.4(a), of its election to defend any such Third Person Claim. Subject to (c) Unless and until an Indemnifying Party assumes the defense of the Third Person Claim as provided in Section 8.4(b), the Indemnified Party shall defend against or settle the Third Person Claim. The reasonable costs of such failuredefense or settlement shall be included in determining Losses relating to the Third Person Claim. If the Indemnitor has notified Indemnifying Party is not defending any such Third Person Claim, the Indemnitee within thirty (30) days from Indemnified Party may settle or compromise such claim on reasonable terms, provided that it shall not enter into any settlement or compromise with respect to a Third Person Claim without the receipt prior written consent of each of the foregoing notice that it wishes to defend against Indemnifying Parties, which consent shall not be unreasonably withheld. (d) The Indemnified Party and the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor Indemnifying Party shall each have the right to assume and control participate in the defense of the any Third Person Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in for which it is not controlling the defense, at its sole own expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtained.

Third Person Claims. Promptly after a party an Indemnitee has received notice ------------------- of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person Third ------------ Person, the Indemnitee shall, as a condition precedent to a claim with respect to any such Claimthereto being made against the Escrow Agreement, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Stockholders' Representative written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect effect the Indemnities' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has Stockholders' Representative has, or the stockholders have, been actually prejudiced as a result of such failure. If the Indemnitor has notified Stockholder Representative -42- notifies the Indemnitee within thirty (30) 30 days from the receipt of the foregoing notice that it he wishes to defend against the Claimclaim by the Third Person and if the estimated amount of the claim, unless there exists a potential conflict together with all other claims made against the Escrow Funds that have not been settled, is less than the remaining balance of interest between the partiesEscrow Funds, then the Indemnitor Stockholder Representative shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the IndemniteeStockholder Representative shall be entitled to reimbursement out of the Escrow Funds for such defense. The Indemnitee may participate in the defense, at its sole expense, expense of any such Claim claim for which the Indemnitor Stockholder Representative shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Stockholder Representative shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, that Indemnitee shall control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not Stockholder Representative shall have assumed the defense of any claim. The Indemnitor may not settle , neither the Indemnitee nor the Stockholder Representative shall make any Claim settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtained.understood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of the party controlling the defense to act upon a request for consent to such settlement within five business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Section 8.1

Third Person Claims. Promptly after a party an Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement (“Third Person”) or the commencement of any action or proceeding by a third person Third Person, the Indemnitee shall, as a condition precedent to a claim with respect to any such Claimthereto being made against an Indemnifying Party, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Indemnifying Party written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect relieve such Indemnifying Party from the right to indemnification hereunder liability under this Section with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnifying Party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty The Indemnifying Party (30at its own expense) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right and shall be given the opportunity to assume and control associate with the Indemnitee in the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defensesuch claim, at its sole expensesuit or proceedings, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Indemnitee shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings. The Indemnitee shall not, except at its own cost, make any settlement with respect to any such claim, suit or proceeding other than Claims without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. It is understood and agreed that in situations where failure of the Indemnitee to settle a claim expeditiously could have an adverse effect on the Indemnitee, the failure of the Indemnifying Party to act upon the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemniteerequest for consent to such settlement within five business days of the Indemnifying Party’s business apart receipt of notice thereof from the payment of money damages. The Indemnitee shall be entitled deemed to indemnification constitute consent by the Indemnifying Party of such settlement for the reasonable fees and expenses purposes of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedthis Section 5.3.

Third Person Claims. Promptly after a party has received notice (a) Any Indemnified Party seeking indemnification in respect of, arising out of or has actual knowledge of any Claim against it covered involving a claim or demand made by a third party Person against the Indemnified Party (a “Third Person Claim”) shall notify the Indemnitor in writing, and in reasonable detail, of such Third Person Claim within 10 days after the Indemnified Party’s receipt of written notice thereof. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. Any Claim Notice involving a Third Person Claim shall refer to the provision of this Agreement upon which the claim described in such Claim Notice is based and describe in reasonable detail the facts giving rise to an alleged basis for such claim and the amount, if known, of the Liability asserted against the Indemnitor by reason of such claim. The failure to give notice in accordance with this Section 10.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. (b) The Indemnitor shall, subject to the limitations set forth in this Section 10.5(b), have the sole and absolute right, after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control and defend against, negotiate or otherwise deal with any Proceeding which relates to any Third Person Claim; provided, however, that if the commencement Indemnitor elects to control the Proceeding, such counsel shall be reasonably acceptable to the Indemnified Party and the Indemnified Party may participate in any such Proceeding with counsel of its choice and at its own expense (other than in the case of fees and expenses that are incurred prior to the date the Indemnitor effectively assumes control of such defense), and provided further, that if in the reasonable opinion of the Indemnified Party’s counsel, a conflict of interest exists or may arise in the event the Indemnitor elects to control or defend any action Third Person Claim, the Indemnified Party may, at its sole election, solely control and defend against, negotiate or proceeding otherwise deal with any such claim and such fees and expenses will be born by a third person the Indemnitor to the extent such fees and expenses were incurred in connection with defending against those elements of the Proceeding with respect to any which such conflict exists. Additionally, to the extent that (i) the Indemnitor elects not to defend such Third Person Claim, or (ii) the claim for indemnification relates to or arises in connection with any criminal Proceeding, the Indemnified Party may defend against, deal with and otherwise control such party (sometimes referred to as Third Person Claim using counsel of its choosing, at the “Indemnitee”) shall give expense of the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceeding; provided, however, that the failure Indemnitor shall be obligated pursuant to give such notice will not affect the right this Section 10.5(b) to indemnification hereunder with respect to such Claim, action pay for only one firm of counsel (and one local or proceeding, except special counsel in each applicable jurisdiction or to the extent that reasonably engaged by the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30Indemnified Party) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemniteefor all Indemnified Parties. The Indemnitee may participate parties hereto agree to cooperate fully with each other in connection with the defense, at its sole expense, negotiation or settlement of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, Third Person Claim; provided, however, that counsel for neither the Indemnitor nor the Indemnified Party may settle or compromise any such Third Person Claim without the written consent of the Indemnified Party or the Indemnitor, as applicable, which consent shall act as lead counsel in all matters pertaining to the defense not be unreasonably withheld, or settlement of such Claimsdelayed; provided, suit or proceeding other than Claims further, that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of may settle or compromise any claim. The Indemnitor may not settle any Third Party Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedIndemnified Party if (A) the Indemnitor pays or agrees to pay or cause to be paid all amounts arising out of such settlement or compromise, (B) such settlement or compromise would not encumber any of the material assets of any Indemnified Party or impose any restriction or condition that would apply to or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business, (C) the Indemnitor obtains, as a condition of such settlement or compromise, a complete release of any Indemnified Party that could reasonably be affected by such Third-Party Claim, and (D) such settlement or compromise does not involve any admission of liability or wrongdoing by any Indemnified Party or any of its Affiliates. (c) To the extent of any inconsistency between this Section 10.5 and Section 7.1(b) (relating to Tax contests), the provisions of Section 7.1(b) shall control with respect to Tax contests.

Third Person Claims. Promptly (a) An Indemnified Party must notify the Indemnitor in writing, of the third Person claim promptly after a party has received notice receipt by such Indemnified Party of or has actual knowledge of any Claim against it covered by a third party or the commencement of any action or proceeding by a third person with respect to any such Claim, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such the third Person claim, which notice shall contain reasonable detail describing the facts giving rise to the claim or commencement and (if then known) the amount of such action or proceeding; provided, however, that the claim. The failure of any Indemnified Party to give such notice will notices promptly shall not affect the right to indemnification hereunder with respect to such Claim, action or proceedingrelieve Indemnitor of its obligations under this ARTICLE 9, except to the extent that the other party has been actually prejudiced as a result defense of such failure. If Action is materially and irrevocably prejudiced by the Indemnitor has notified Indemnified Party’s failure to give such notice. (b) In the Indemnitee within thirty (30) days from the receipt event of the foregoing notice that it wishes to defend initiation of any legal proceeding against the ClaimIndemnified Party by a third Person, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume defend the third Person claim, with counsel of its choice so long as (i) the Indemnitor notifies the Indemnified Party in writing within 15 days following the receipt of the claim notice that the Indemnitor will indemnify the Indemnified Party from and control against the entirety of any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the third Person claim, (ii) the third Person claim involves only money damages and does not seek an injunction or other equitable relief and (iii) the Indemnitor conducts the defense of the Claim by appropriate proceedings with third Person claim actively and diligently. (c) In the event that the Indemnitor is conducting the defense of the third Person claim, (i) the Indemnified Party may retain separate co-counsel reasonably acceptable to the Indemnitee. The Indemnitee may at its sole cost and expense and participate in the defensedefense of the third Person claim if there exists a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party for the same counsel to represent both the Indemnitor and the Indemnified Party, at its sole expense, (ii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the third Person claim without the prior written consent of the Indemnitor and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the third Person claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably) unless such claim provides for the payment by the Indemnitor of money as sole relief for the third Person and results in the full and general release of the Indemnified Party. (d) To the extent the Indemnitor elects not to defend such proceeding, claim or demand, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the third Person claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnitor in connection therewith), (ii) the Indemnitor will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses), and (iii) the Indemnitor will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the third Person claim to the fullest extent provided in this ARTICLE 9. (e) The party controlling the defense of such third Person claim the “Controlling Party”) shall keep the non-Controlling Party advised of the status of such third Person claim and the defense thereof and shall consider in good faith the recommendations made by the non-Controlling Party with respect thereto. If the Indemnitor elects to assume control of the defense of a third Person claim, any fees and expenses of legal counsel employed by the Indemnified Party with respect to such third Person claim shall be considered Losses for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall Indemnified Party may be entitled to indemnification for under this ARTICLE 9 only if the reasonable fees and expenses of its counsel for any period during which named parties in such third Person claim include both the Indemnitor and the Indemnified Party and the Indemnified Party has been advised by legal counsel that there may be one or more material legal defenses available to it which are different from or additional to those available to the Indemnitor (provided, that in such situation, the Indemnified Party shall not assumed be entitled to employ more than one law firm). (f) The Parties agree to cooperate fully with each other in connection with the defense defense, negotiation or settlement of any such legal proceeding, claim or demand. Such cooperation shall include the retention and the provision of records and information which is reasonably relevant to such third Person claim. The , and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as witnesses. (g) After any final Court Order shall have been rendered and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor may not settle shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnifiable by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of any Claim without obtaining sums clue and owing by it with respect to such matter and the Indemnitor shall pay all amounts due to the Indemnified Party within thirty (30) days after such final determination by Indemnitor on a release Pro Rata Share basis by: (i) at the election of such Seller, the Right of Set Off of requisite amounts from the Buyer Notes or by wire transfer of immediately available funds to an account or accounts specified by the Indemnified Party or (ii) solely in the event that no Buyer Notes are available for set off, the benefit payment of such Seller’s Pro Rata Share by wire transfer of immediately available funds to an account or accounts specified by the IndemniteeIndemnified Party, unless but in each case subject to the consent of the Indemnitee is obtainedlimitations herein set forth.

Third Person Claims. Promptly after a party an Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect to any such ClaimThird Person, such party (sometimes referred to as the “Indemnitee”) shall Indemnitee shall, give the other party (sometimes referred to as the “Indemnitor”) Indemnifying Party written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect effect the Indemnities' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has Indemnifying Parties have been actually prejudiced as a result of such failure. If the Indemnitor has notified an Indemnifying Party notifies the Indemnitee within thirty (30) 30 days from the receipt of the foregoing notice that he or it wishes to defend against the Claim, unless there exists claim by the Third 1. If the Indemnifying Party desires to accept a potential conflict final and complete settlement of interest between any such Third Person claim and the partiesIndemnitee refuses to consent to such settlement, then the Indemnitor Indemnifying Party's liability under this Article IX with respect to such Third Person claim shall have be limited to the right amount so offered in settlement by said Third Person and the Indemnitee shall reimburse the Indemnifying Party for any additional costs of defense which it subsequently incurs with respect to assume such claim. For purposes of this Article IX, notice by a Parent Indemnitee to the Stockholders Representative shall be deemed to be notice to the Principal Stockholders in their capacity as Indemnifying Parties hereunder and control decisions by the defense Stockholders Representative shall be binding upon each of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedPrincipal Stockholders.

Third Person Claims. Promptly after a (a) Any party has received notice seeking indemnification pursuant to this Article IX in respect of, arising out of or has actual knowledge of involving any Claim claim or demand made by any third Person against it covered by a third party the Indemnified Party either at law or the commencement of any action or proceeding by a third person with respect to any such Claim, such party in equity (sometimes referred to as the an “IndemniteeAction”) shall give notify the other party (sometimes referred to Indemnitor in writing and in reasonable detail of such Action, including any pending or threatened Action, as the “Indemnitor”) promptly as practicable after receipt by such Indemnified Party of written notice of such claim third Person’s Action in the case of an Action, or commencement as promptly as practicable after the Indemnified Party has reasonably determined that the pending or threatened Action has given or would reasonably be expected to give rise to a right of indemnification hereunder in the case of any pending or threatened Action. Thereafter, the Indemnified Party shall deliver to the Indemnitor, as promptly as practicable, copies of all notices and Documents (including court papers) received by the Indemnified Party relating to the third Person Action. The failure to give notice as provided in this Section 9.6(a) shall not relieve the Indemnitor of its obligations hereunder (or limit such action obligations) except to the extent it shall have been actually and materially prejudiced by such failure. (b) In the event any Action shall be commenced by any Person against any party in respect of which indemnification may be sought by such party from the other party under the provisions of this Article IX, the Indemnified Party shall promptly cause written notice of the institution of any such Action of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor in accordance with Section 9.6(a). In the event of the initiation of any Action against the Indemnified Party by a third Person with respect to which the Indemnified Party shall seek indemnification from the Indemnitor hereunder, the Indemnitor shall have ten (10) days from its receipt of the Claim Notice to notify the Indemnified Party whether or proceedingnot the Indemnitor desires (or sooner, if the nature of the Action so requires), at the Indemnitor’s sole cost and expense and by counsel of its own choosing, which must be reasonably satisfactory to the Indemnified Party, to control or defend against such Action, and the Indemnitor must conducts its defense of the Action actively and diligently thereafter in order to preserve its rights in this regard; provided, however, that the failure Indemnified Party may participate in any such Action with counsel of its choice and at its expense; provided, further, however, that such Indemnified Party shall be entitled to give participate in any such notice will defense with separate counsel at the expense of the Indemnitor if so requested by the Indemnitor to participate or in the reasonable opinion of counsel to the Indemnified Party a conflict or potential conflict exists between the Indemnified Party and the Indemnitor that would make such separate representation advisable; and provided, further, that the Indemnifying Party shall not affect be required to pay for more than one (1) such counsel (plus any appropriate local counsel) for all Indemnified Parties in connection with any Action. (c) The Indemnitor shall not be entitled to assume control of such defense and shall pay the right fees and expenses of counsel retained by the Indemnified Party if (i) such Action is reasonably foreseeable to result in Losses which are more than two-hundred percent (200%) of the amount indemnifiable by such Indemnitor pursuant to this Article IX; (ii) such Action for indemnification hereunder relates to or arises in connection with respect to such Claim, action or any criminal proceeding, except to action, indictment, allegation or investigation; (iii) such Action seeks an injunction or equitable relief against the extent that Indemnified Party; (iv) the other party Indemnified Party has been actually prejudiced as advised in writing by counsel that a result reasonable likelihood exists of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the partiesIndemnitor and the Indemnified Party; or (v) upon petition by the Indemnified Party, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such Action. The parties agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Action. If the Indemnitor undertakes to defend against such Action, the Indemnitor shall not settle such Action without the written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless such settlement involves solely the payment of money for which the Indemnified Party will be fully indemnified pursuant to this Article IX (subject to the De Minimis Amount and the Deductible) and includes an unqualified release of the applicable Indemnified Parties from all liability in respect of any Action. If the Indemnitor does not timely undertake to defend against such Action, or otherwise abandons the defense of such Action, then the Indemnitor Indemnified Party may, without prejudice to any of its rights to indemnification hereunder, defend such Action and the Losses incurred by the Indemnified Party in connection therewith shall be borne by the Indemnitor. Notwithstanding the foregoing, the Indemnified Party shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of pay or settle any such Claim Action; provided, that in such event it shall waive any right to indemnity therefor by the Indemnitor for which such Action unless the Indemnitor shall have assumed consented to such payment or settlement. (d) After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the defense pursuant time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the preceding sentence, provided, however, that counsel for Indemnified Party and the Indemnitor shall act as lead counsel in all matters pertaining arrive at a mutually binding agreement with respect to any matter alleged to be indemnified by the Indemnitor hereunder, the Indemnitor shall promptly pay the amount owed to the defense or settlement of such Claims, suit or proceeding other than Claims that Indemnified Party in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedrespect thereof.

Third Person Claims. Promptly after a party an Indemnitee has received ------------------- notice of or has actual knowledge of any Claim against it covered actual or threatened claim or potential claim by a third person not a party to this Agreement ("Third Person") or the commencement ------------ of any action or proceeding by a third person Third Person, the Indemnitee shall, as a condition precedent to an indemnification claim with respect to any such Claimthereto being made against the stockholders of Lightscape, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Stockholders' Representative written notice of such any actual or threatened claim or potential claim or the commencement of such action or proceeding; provided, however, however that the failure to -------- ------- give such notice will not affect the Indemnitees' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has Stockholders' Representative has, or the stockholders have, been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor The Stockholder Representative shall have the right right, to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the IndemniteeStockholder Representative shall be entitled to reimbursement out of the Merger Consideration for such defense. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor Stockholder Representatives shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Stockholder Representatives shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, that Indemnitee shall have the -------- ------- exclusive right to control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and an adverse effect on Indemnitee’s 's business apart from the payment of money damages, except that Indemnitee shall not make any settlement with respect to any Third Person claim, suit or proceeding without the prior consent of the Stockholder Representative, which such consent shall not be unreasonably withheld. The Indemnitee shall be entitled to indemnification under Section 9.2 for the reasonable legal fees and other associated expenses of its counsel for any period during which the Indemnitor Stockholder Representative has not assumed the defense of any claim. The Indemnitor may Stockholder Representative shall not settle make any Claim settlement with respect to any claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee is obtainedDiscreet, which can be withheld for any or no reason.

Third Person Claims. Promptly after a party has received notice of or has actual knowledge of any Claim claim against it covered by Section 11 by a third party Third Party or the commencement of any action or proceeding by a third person Third Person with respect to any such Claimclaim, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between claim by the partiesThird Person, then the Indemnitor shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, provided that the Indemniteeassumption of such defense by the Indemnitor shall constitute an acknowledgment of the obligation to indemnify the Indemnitee hereunder. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceeding other than Claims claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. 12 TRADEMARKS Distributor understands and agrees that it has received no right or license, express or implied, to use in any manner the name “Ben & Jerry’s” or any other trade name or trademark used or owned by Manufacturer now or in the future with the express written consent of Manufacturer except as set forth herein. Subject to the terms and conditions of this Agreement and to the continuing performance by Distributor of its obligations hereunder, Manufacturer hereby grants Distributor a non-exclusive, non-transferable and personal license to use Manufacturer’s trademarks and logos (“Marks”) solely in connection with the distribution, display and sale of the Products pursuant to this Agreement. Distributor agrees that such Marks shall be used only in the forms and manners specified and approved in writing in advance by Manufacturer. All rights granted to Distributor under this Agreement with respect to the Marks shall immediately cease and terminate upon the termination of this Agreement. The Indemnitor provisions of this Section shall survive termination. 13 CONFIDENTIAL INFORMATION Confidential Information about a party learned under this Agreement shall not be used during or after the term of this Agreement except for the purpose of this Agreement and, without limiting the foregoing, such information as to the Manufacturer may not settle be used by the Distributor in connection with the production, marketing, distribution or sale of Distributor’s products. Confidential Information shall, for purposes of this Agreement, include all information relating to a party, its business and prospect, disclosed by such party from time to time to the other party in any Claim manner, whether orally, visually or in tangible form (including, without obtaining limitation, documents, devices and computer readable media) and all copies thereof, created by either party. The term “Confidential Information” shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by a release for party which contain, reflect or are based upon the benefit information furnished to such party by the other party pursuant hereto. Confidential Information shall not include any information that: (a) was in a party’s possession prior to disclosure by the other party hereunder, provided such information is not known by such party to be subject to another confidentiality agreement with or secrecy obligation to the other party; (b) was generally known in the ice cream industry at the time of disclosure to a party hereunder, or becomes so generally known after such disclosure, through no act of such party; (c) has come into the possession of a party from a third party who is not known by such party to be under any obligation to the other party to maintain the confidentiality of such information; or (d) was independently developed by a party without the use of any Confidential Information of the Indemniteeother party, unless to the consent of extent that such independent development is reasonably established by such first party to the Indemnitee is obtainedother party.

Third Person Claims. Promptly after a party an Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person Third Person, the Indemnitee shall, as a condition precedent to a claim with respect to any such Claimthereto being made against an Indemnifying Party, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Indemnifying Party written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect relieve such Indemnifying Party from the right to indemnification hereunder liability under this Section with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnifying Party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty The Indemnifying Party (30at its own expense) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right and shall be given the opportunity to assume and control associate with the Indemnitee in the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defensesuch claim, at its sole expensesuit or proceedings, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Indemnitee shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings. The Indemnitee shall not, except at its own cost, make any settlement with respect to any such claim, suit or proceeding other than Claims without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. It is understood and agreed that in situations where failure of the Indemnitee’s reasonable judgment Indemnitee to settle a claim expeditiously could have a material and an adverse effect on the Indemnitee’s , the failure of the Indemnifying Party to act upon the Indemnitee's request for consent to such settlement within five business apart days of the Indemnifying Party's receipt of notice thereof from the payment of money damages. The Indemnitee shall be entitled deemed to indemnification constitute consent by the Indemnifying Party of such settlement for the reasonable fees and expenses purposes of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedthis Section 5.3.

Third Person Claims. Promptly after a party has received notice (a) Any Indemnitee seeking indemnification provided for under this Agreement in respect of, arising out of or has actual knowledge involving a claim or demand made by any third Person against the Indemnitee shall notify the Indemnifying Party in writing, and in reasonable detail, of any Claim against it covered the third Person claim promptly after receipt by a third party or the commencement such Indemnitee of any action or proceeding by a third person with respect to any such Claim, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such the third Person claim or commencement (including personal service of such action or proceeding; providedprocess). Thereafter, howeverthe Indemnitee shall deliver to the Indemnifying Party, that promptly after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the third Person claim. The failure to give such notice will as provided in this Section 8.06 shall not affect relieve the right to indemnification Indemnifying Party of its obligations hereunder with respect to such Claim, action or proceeding, except to the extent that the other party has it shall have been actually materially prejudiced as a result of by such failure. If . (b) In the Indemnitor has notified event of the initiation of any Action against the Indemnitee within thirty (30) days from by a third Person for which the receipt of Indemnitee is seeking indemnification provided for under this Agreement, the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, Indemnitee shall then the Indemnitor shall have the right right, using counsel reasonably satisfactory to assume and control the Indemnifying Party, to investigate, contest, or settle such third Person claim. The Indemnifying Party may thereafter participate in (but not control) the defense of the Claim by appropriate proceedings any such third Person claim with its own counsel reasonably acceptable to the Indemniteeat its own expense. The Indemnitee may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim such claim which settlement obligates either party to pay money, to perform obligations or admit liability without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedother party, such consent not to be unreasonably withheld, conditioned or delayed.

Third Person Claims. Promptly after a (a) Any party has received notice seeking indemnification provided for under this Agreement in respect of, arising out of or has actual knowledge of involving a claim or demand made by any Claim third Person against it covered by the Indemnified Party (a third party or the commencement of any action or proceeding by a third person with respect to any such “Third Person Claim, such party (sometimes referred to as the “Indemnitee”) shall give notify the other party Indemnitor in writing, and in reasonable detail, of the Third Person Claim within fifteen (sometimes referred to as 15) Business Days (or reasonably more promptly dependent upon the “Indemnitor”circumstances) after receipt by such Indemnified Party of written notice of such Third Person Claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within ten (10) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to such Third Person Claim. Any notice of a claim by reason of any of the representations, warranties or commencement covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim is based and describe in reasonable detail (to the extent known) the facts giving rise to an alleged basis for the claim and (to the extent known) the amount of the liability asserted against the Indemnitor by reason of such action or proceedingThird Person Claim; provided, however, that the failure or delay of the Indemnified Party to give such notice will to the Indemnitor as provided in this Section 8.4(a) shall not affect relieve the right to indemnification Indemnitor of its obligations hereunder with respect to such Claim, action or proceeding, except to the extent that the other party has Indemnitor shall have been actually prejudiced as a result of by such failure. If . (b) In the Indemnitor has notified event of the Indemnitee initiation of a Third Person Claim, within thirty (30) days from after the receipt Indemnified Party’s delivery of written notice under this Section 8.4, the Indemnitor may be represented by counsel of its choice and assume control of the foregoing defense of such Third Person Claim by giving to the Indemnified Party written notice of the intention to assume such defense; provided, however, that it wishes to defend against the ClaimIndemnified Party may participate in any such Proceeding with counsel of its choice and at its expense; provided further, unless there exists a potential conflict of interest between the parties, then that the Indemnitor shall have the right not be entitled to assume or continue control of the defense of any Third Person Claim if (i) the Third Person Claim relates to or arises in connection with any criminal Proceeding or (ii) the Third Person Claim primarily seeks an injunction or equitable relief against any Indemnified Party. The parties agree to cooperate fully and in good faith with each other in connection with the defense, negotiation or settlement of any Third Person Claim. To the extent the Indemnitor does not, or is not able to, assume the defense of such Third Person Claim, the Indemnified Party may retain counsel at the expense of the Indemnitor, which counsel shall be reasonably acceptable to the Indemnitor, and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, Proceeding; provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining be obligated pursuant to the defense or settlement this Section 8.4(b) to pay for only one firm of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which all Indemnified Parties. Neither the Indemnitor has not assumed nor the defense of any claim. The Indemnitor Indemnified Party may not settle any Claim such Proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability, or which fails to fully and unconditionally release the other party from liability, without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedother party, such consent not to be unreasonably withheld, conditioned or delayed.

Third Person Claims. Promptly after a party an Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("THIRD PERSON") or the commencement of any action or proceeding by a third person with respect to any such ClaimThird -------------- Person, such party (sometimes referred to as the “Indemnitee”) Indemnitee shall give the other party (sometimes referred to as the “Indemnitor”) Indemnitor written notice of such claim or the commencement of such action or proceeding; provided, however, that the -------- ------- failure to give such notice will not affect effect the Indemnitees' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnitor has been actually prejudiced as a result of such failure. If the Indemnitor has notified notifies the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it he wishes to defend against the Claimclaim by the Third Person, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, -------- however that counsel for the Indemnitor shall act as lead counsel in all matters ------- pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, that Indemnitee shall control the defense of any claim or -------- ------- proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Whether or not the Indemnitor may not settle shall have assumed the defense of any Claim claim, neither the Indemnitee nor the Indemnitor shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior written consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of a party controlling the defense to act upon a request for consent to such settlement within five business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Section 8.1.

Third Person Claims. Promptly after a party an Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("THIRD PERSON") or the commencement of any action or proceeding by a third person Third Person, the Indemnitee shall, as a condition precedent to a claim with respect thereto being made against the Escrow Agreement with respect to any such Claimthe General Escrow Shares, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Stockholder Representative written notice of such claim or the commencement of such action or proceeding; providedPROVIDED, however, HOWEVER that the failure to give such notice will not affect the Indemnitees' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has Stockholder Representative has, or the stockholders have, been actually prejudiced as a result of such failure. If the Indemnitor has notified Stockholder Representative notifies the Indemnitee within thirty (30) 30 days from the receipt of the foregoing notice that it he wishes to defend against the Claimclaim by the Third Person and if the amount of the claim, unless there exists a potential conflict if known, together with all other claims made against the General Escrow Shares that have not been settled, is less than the remaining balance of interest between the partiesGeneral Escrow Shares, then the Indemnitor Stockholder Representative shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the IndemniteeStockholder Representative shall be entitled to reimbursement out of the General Escrow Shares for such defense. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor Stockholder Representative shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Stockholder Representative shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; PROVIDED, HOWEVER, that Indemnitee shall control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. Under no circumstances shall the Stockholder Representative be entitled to assume the defense of any claim against the Specific Escrow Shares; PROVIDED, HOWEVER, that the Stockholder Representative may participate in the defense, at its sole expense, of any such claim provided that counsel to Cascade shall act as lead counsel in all matters pertaining to the defense or settlement of such claims, suit or proceedings. The Indemnitee shall be entitled to indemnification under Section 9.2 for the reasonable fees and expenses of its counsel for any period during which the Indemnitor Stockholder Representative has not assumed the defense of any claim. The Indemnitor may Whether or not settle the Stockholder Representative shall have assumed the defense of any Claim claim, nether the Indemnitee nor the Stockholder Representative shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of the party controlling the defense to act upon a request for consent to such settlement within five business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Article IX.

Third Person Claims. Promptly after a party an Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect to any such ClaimThird Person, such party (sometimes referred to as the “Indemnitee”) Indemnitee shall give the other party (sometimes referred to as the “Indemnitor”) Indemnifying Party written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect effect the Indemnitees' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnifying Party has been actually prejudiced as a result of such failure. If the Indemnitor has notified Indemnifying Party notifies the Indemnitee within thirty (30) 45 days from the receipt of the foregoing notice that it he wishes to defend against the Claim, unless there exists a potential conflict of interest between claim by the partiesThird Person, then the Indemnitor Indemnifying Party shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, expense of any such Claim claim for which the Indemnitor Indemnifying Party shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Indemnifying Party shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, that Indemnitee shall control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damagesdamages and will not materially impact the Indemnifying Party's 'obligations hereunder. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor Indemnifying Party has not assumed the defense of any claim. The Indemnitor may Whether or not settle the Indemnifying Party shall have assumed the defense of any Claim claim, neither the Indemnitee nor the Indemnifying Party shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of a party controlling the defense to act upon a request for consent to such settlement within five business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Article 9.

Third Person Claims. Promptly after a party an Indemnitee has received ------------------- notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person ------------ Third Person, the Indemnitee shall, as a condition precedent to a claim with respect to any such Claimthereto being made against the Escrow Agreement, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Stockholders' Representative written notice of such claim or the commencement of such action or proceeding; provided, however, however that the failure to give such notice will not affect -------- ------- effect the Indemnitees' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has Stockholders' Representative has, or the stockholders have, been actually prejudiced as a result of such failure. If the Indemnitor has notified Stockholder Representative notifies the Indemnitee within thirty (30) 30 days from the receipt of the foregoing notice that it he wishes to defend against the Claimclaim by the Third Person and if the estimated amount of the claim, unless there exists a potential conflict together with all other claims made against the Escrow Shares that have not been settled, is less than the remaining balance of interest between the partiesEscrow Shares, then the Indemnitor Stockholder Representative shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the IndemniteeStockholder Representative shall be entitled to reimbursement out of the Escrow Shares for such defense. The Indemnitee may participate in the defense, at its sole expense, expense of any such Claim claim for which the Indemnitor Stockholder Representative shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Stockholder Representative shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, -------- ------- that Indemnitee shall control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor Stockholder Representative has not assumed the defense of any claim. The Indemnitor may Whether or not settle the Stockholder Representative shall have assumed the defense of any Claim claim, nether the Indemnitee nor the Stockholder Representative shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of the party controlling the defense to act upon a request for consent to such settlement within five business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Article IX.

Third Person Claims. Promptly after a party an Indemnitee has received notice ------------------- of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person Third Person, the Indemnitee shall, as a condition precedent to a claim with respect to any such Claimthereto being made against the Escrow Agreement, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Stockholder Representative written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect -------- ------- effect the Indemnities' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has Stockholder Representative has, or the Stockholders have, been actually prejudiced as a result of such failure. If the Indemnitor has notified Stockholder Representative notifies the Indemnitee within thirty (30) 30 days from the receipt of the foregoing notice that it he wishes to defend against the Claimclaim by the Third Person and if the estimated amount of the claim, unless there exists a potential conflict together with all other claims made against the Escrow Funds that have not been settled, is less than the remaining balance of interest between the partiesEscrow Funds, then the Indemnitor Stockholder Representative shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the IndemniteeStockholder Representative shall be entitled to reimbursement out of the Escrow Funds for such defense. The Indemnitee may participate in the defense, at its sole expense, expense of any such Claim claim for which the Indemnitor Stockholder Representative shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Stockholder Representative shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, -------- ------- that Indemnitee shall control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor Stockholder Representative has not assumed the defense of any claim. The Indemnitor may Whether or not settle the Stockholder Representative shall have assumed the defense of any Claim claim, neither the Indemnitee nor the Stockholder Representative shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of a party controlling the defense to act upon a request for consent to such settlement within ten business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Section 8.1.

Third Person Claims. Promptly after a party has received notice of or has actual knowledge of any Claim claim against it covered by Section 10 by a third party Third Party or the commencement of any action or proceeding by a third person Third Person with respect to any such Claimclaim, such party (sometimes referred to as the “"Indemnitee”") shall give the other party (sometimes referred to as the “"Indemnitor”") written notice of such claim or commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between claim by the partiesThird Person, then the Indemnitor shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, provided that the Indemniteeassumption of such defense by the Indemnitor shall constitute an acknowledgment of the obligation to indemnify the Indemnitee hereunder. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceeding other than Claims claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtained.

Third Person Claims. Promptly after a party an Indemnitee has received ------------------- notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect to any such ClaimThird Person, such party (sometimes referred to as the “Indemnitee”) shall Indemnitee shall, give the other party (sometimes referred to as the “Indemnitor”) Indemnitor written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect effect the Indemnitees' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnitor has been actually prejudiced as a result of such failure. If the Indemnitor has notified notifies the Indemnitee within thirty (30) 30 days from the receipt of the foregoing notice that it he wishes to defend against the Claim, unless there exists a potential conflict of interest between claim by the parties, then Third Person the Indemnitor shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, expense of any such Claim claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, that Indemnitee shall control the defense of any claim or proceeding other than Claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Whether or not the Indemnitor may not settle shall have assumed the defense of any Claim claim, neither the Indemnitee nor the Indemnitor shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of a party controlling the defense to act upon a request for consent to such settlement within ten business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Section 8.2.

Third Person Claims. Promptly after a party has received notice of or has actual knowledge of any Claim claim against it covered by Section 11 by a third party Third Party or the commencement of any action or proceeding by a third person Third Person with respect to any such Claimclaim, such party (sometimes referred to as the “"Indemnitee”") shall give the other party (sometimes referred to as the “"Indemnitor”") written notice of such claim or commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between claim by the partiesThird Person, then the Indemnitor shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, provided that the Indemniteeassumption of such defense by the Indemnitor shall constitute an acknowledgment of the obligation to indemnify the Indemnitee hereunder. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceeding other than Claims claims that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtained.

Third Person Claims. Promptly after a party has received notice (a) An Indemnified Party seeking indemnification under this Agreement in respect of, arising out of or has actual knowledge involving a claim or demand made by any third Person against such Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of any Claim against it covered the third Person claim promptly after receipt by a third party or the commencement such Indemnified Party of any action or proceeding by a third person with respect to any such Claim, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) written notice of such claim or commencement of such action or proceedingthe third Person claim; provided, however, that the failure of any Indemnified Party to give provide such notice will promptly as required by this Section 9.5(a) shall not affect the right to indemnification hereunder with respect to such Claim, action or proceeding, Indemnified Party’s rights under this Section 9 except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within fifteen (15) calendar days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within fifteen (15) calendar days after receipt thereof and shall deliver to the Indemnitor within fifteen (15) calendar days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in each case such earlier time as may be necessary to enable the Indemnitor to respond to the court proceedings on a timely basis). (b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other party has been actually prejudiced as in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. Such cooperation shall include the retention and the provision of records and information which is reasonably relevant to such third Person claim, and making employees available in a result mutually convenient basis to provide additional information and explanation of such failureany material provided hereunder. If To the extent the Indemnitor has notified the Indemnitee elects not to defend such proceeding, claim or demand, or fails to respond within thirty (30) days from the receipt of the foregoing notice of such proceeding, claim or demand confirming in writing that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right has elected to assume the defense of such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel and control the defense of such proceeding, and if it is determined that the Claim by appropriate proceedings with Indemnified Party is entitled to be indemnified for such proceeding, claim or demand, the fees of such counsel reasonably acceptable to shall be at the Indemniteeexpense of the Indemnitor. The Indemnitee Neither the Indemnitor nor the Indemnified Party may participate in the defense, at its sole expense, of settle any such Claim for proceeding, which settlement obligates the Indemnitor shall have assumed other party to pay money, to perform obligations or to admit liability without the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit written consent of the Indemniteeother party, unless such consent not to be unreasonably withheld or delayed; provided that the consent of the Indemnitee is obtainedIndemnified Party shall not be required if the Indemnitor agrees in writing to pay any amounts payable pursuant to such settlement and such settlement includes a full release of the Indemnified Party. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnifiable by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer within ten (10) calendar days after the date of such notice.

Third Person Claims. Promptly after a party an Indemnitee has received notice ------------------- of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("THIRD PERSON") or the commencement of any action or proceeding by a third person Third -------------- Person, the Indemnitee shall, as a condition precedent to a claim with respect to any such Claimthereto being made against the Escrow Agreement, such party (sometimes referred to as the “Indemnitee”) shall give the other party (sometimes referred to as the “Indemnitor”) Shareholder Representative written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect -------- ------- effect the Indemnitees' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party has Shareholder Representative has, or the Shareholders have, been actually prejudiced as a result of such failure. If the Indemnitor has notified Shareholder Representative notifies the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it he wishes to defend against the Claimclaim by the Third Person and if the estimated amount of the claim, unless there exists a potential conflict together with all other claims made against the Escrow Fund that have not been settled, is less than the remaining balance of interest between the partiesEscrow Funds, then the Indemnitor Shareholder Representative shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to Indemnitee, and the IndemniteeShareholder Representative shall be entitled to reimbursement out of the Escrow Funds for such defense. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor Shareholder Representative shall have assumed the defense pursuant to the preceding sentence, provided, however, however that counsel for the Indemnitor -------- ------- Shareholder Representative shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, -------- however, that Indemnitee shall control the defense of any claim or proceeding other than Claims ------- that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor Shareholder Representative has not assumed the defense of any claim. The Indemnitor may Whether or not settle the Shareholder Representative shall have assumed the defense of any Claim claim, neither the Indemnitee nor the Shareholder Representative shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior written consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of a party controlling the defense to act upon a request for consent to such settlement within five business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Section 8.1.

Third Person Claims. Promptly after a party an Indemnitee has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect Third Person as to any which such ClaimIndemnitee desires to seek indemnification hereunder, such party (sometimes referred to as the “Indemnitee”) Indemnitee shall give the other party (sometimes referred to as the “Indemnitor”) Indemnifying Party written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the Indemnitees' right to indemnification hereunder with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnifying Party has been actually prejudiced as a result of such failure. If the Indemnitor has notified Indemnifying Party notifies the Indemnitee within thirty (30) 30 days from the receipt of the foregoing notice that it he wishes to defend against the Claim, unless there exists a potential conflict of interest between claim by the partiesThird Person, then the Indemnitor Indemnifying Party shall have the right to assume and control the defense of the Claim claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defense, at its sole expense, of any such Claim claim for which the Indemnitor Indemnifying Party shall have assumed the defense pursuant to the preceding sentence, provided, however, provided that counsel for the Indemnitor Indemnifying Party shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaims, suit or proceedings; provided, however, that Indemnitee shall control the portion of defense of any claim or proceeding other than Claims seeking equitable relief against Indemnitee that in the Indemnitee’s 's reasonable judgment could have a material and adverse effect on Indemnitee’s 's business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees and expenses of its counsel for any period during which the Indemnitor Indemnifying Party has not assumed the defense of any claim. The Indemnitor may Whether or not settle the Indemnifying Party shall have assumed the defense of any Claim claim, neither the Indemnitee nor the Indemnifying Party shall make any settlement with respect to any such claim, suit or proceeding without obtaining a release for the benefit of the Indemnitee, unless the prior consent of the Indemnitee other, which consent shall not be unreasonably withheld or delayed. It is obtainedunderstood and agreed that in situations where failure to settle a claim expeditiously could have an adverse effect on the party wishing to settle, the failure of a party controlling the defense to act upon a request for consent to such settlement within ten business days of receipt of notice thereof shall be deemed to constitute consent to such settlement for purposes of this Article 9.

Third Person Claims. Promptly after If a party has received notice of or has actual knowledge of any Claim against it covered claim by a third Person is made against an Indemnified Party, and if such party or the commencement of any action or proceeding by a third person intends to seek indemnity with respect thereto under this Article XII, such Indemnified Party shall promptly notify Seller. Seller shall have 20 days after receipt of such notice to acknowledge and agree to fully and completely indemnify Purchaser, undertake, conduct and control, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith at the cost of Seller; provided, that the Indemnified Party may participate in such settlement or defense through counsel chosen by such Indemnified Party and paid at its own expense. So long as Seller is reasonably contesting any such Claimclaim in good faith, the Indemnified Party shall not pay or settle any such party (sometimes referred to as claim without the “Indemnitee”) consent of the Seller, which consent shall give not be unreasonably withheld. If Seller does not notify the other party (sometimes referred to as Indemnified Party in writing within 10 days after receipt of the “Indemnitor”) Indemnified Party’s written notice of such a claim or commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification indemnity hereunder with respect to such Claim, action or proceeding, except to the extent that the other party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty (30) days from the receipt of the foregoing notice that it wishes elects to defend against undertake the Claimdefense thereof, unless there exists a potential conflict of interest between the parties, then the Indemnitor Indemnified Party shall have the right to assume and control the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in undertake the defense, at its sole expense, of any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense compromise or settlement of such Claims, suit or proceeding other than Claims that in the Indemnitee’s reasonable judgment could have a material claim and adverse effect on Indemnitee’s business apart from the payment of money damages. The Indemnitee shall be entitled to indemnification for the reasonable fees fully and expenses of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedcompletely indemnified by Seller.

Third Person Claims. Promptly after a any party hereto (the "Indemnified Party") has received notice of or has actual knowledge of any Claim against it covered claim by a third person not a party to this Agreement ("Third Person") or the commencement of any action or proceeding by a third person with respect Third Person that may give rise to any such Claima right of indemnification hereunder, such party (sometimes referred to as the “Indemnitee”) Indemnified Party shall give to the other party obligated to provide indemnification hereunder (sometimes referred to as the “Indemnitor”an "Indemnifying Party") written notice of such claim or the commencement of such action or proceeding; provided, however, that the failure to give such notice will not affect the right to indemnification hereunder relieve such Indemnifying Party from liability under this Section with respect to such Claimclaim, action or proceeding, except to the extent that the other party Indemnifying Party has been actually prejudiced as a result of such failure. If the Indemnitor has notified the Indemnitee within thirty The Indemnifying Party (30at its own expense) days from the receipt of the foregoing notice that it wishes to defend against the Claim, unless there exists a potential conflict of interest between the parties, then the Indemnitor shall have the right to assume and control defend any such claim, suit or proceeding, provided that the defense of the Claim by appropriate proceedings with counsel reasonably acceptable to the Indemnitee. The Indemnitee may participate in the defenseIndemnified Party, at its sole own expense, of shall have the right to associate with the Indemnifying Party in such defense. Neither the Indemnifying Party nor the Indemnified Party shall, except at its own cost, make any settlement with respect to any such Claim for which the Indemnitor shall have assumed the defense pursuant to the preceding sentence, provided, however, that counsel for the Indemnitor shall act as lead counsel in all matters pertaining to the defense or settlement of such Claimsclaim, suit or proceeding without the prior consent of the other than Claims party, which consent shall not be unreasonably withheld or delayed. It is understood and agreed that in the Indemnitee’s reasonable judgment situations where failure of a party to settle a claim expeditiously could have a material and an adverse effect on Indemnitee’s the other party, the failure of the refusing party to act upon the other party's request for consent to such settlement within five business apart days of such party's receipt of notice thereof from the payment of money damages. The Indemnitee other party shall be entitled deemed to indemnification constitute consent by such party of such settlement for the reasonable fees and expenses purposes of its counsel for any period during which the Indemnitor has not assumed the defense of any claim. The Indemnitor may not settle any Claim without obtaining a release for the benefit of the Indemnitee, unless the consent of the Indemnitee is obtainedthis Section.