Section # Court-Ordered Indemnification. Notwithstanding any other provision of this Agreement, a court of appropriate jurisdiction, upon application of Indemnitee and such notice as the court shall require, may order indemnification of Indemnitee by the Company in the following circumstances:

if such court determines that Indemnitee is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not Indemnitee # has met the standards of conduct set forth in [[Section 2-418(b)])]] of the MGCL or # has been adjudged liable for receipt of an improper personal benefit under [[Section 2-418(c)])]] of the MGCL, the court may order such indemnification as the court shall deem proper without regard to any limitation on such court-ordered indemnification contemplated by [[Section 2-418(d)(2)(ii)])]] of the MGCL.

Determination of Right to Indemnification. Anything contained elsewhere herein to the contrary notwithstanding, any indemnification under [Sections 2 through 4] hereinabove, inclusive, shall (unless ordered by a court) not be paid by Company unless a determination is made, as hereinafter provided, that indemnification is proper in the circumstances and not excluded because of the provisions of [Section 8 or 9]9].

Court Order. Notwithstanding any contrary provision in this Agreement, the Escrow Agent shall disburse the Escrow Funds (or any portion thereof) in accordance with a notice from either ​ or Seller confirming to the Escrow Agent that accompanying the notice is a court order, along with a copy of the order and a written certification by the prevailing party attesting that such court order is final and non-appealable along with written instructions for payment to the relevant parties from an authorized Representative of the instructing party, pursuant to which the court has determined whether and to what extent ​ or Seller are entitled to the Escrow Funds (or any portion thereof), upon which certification and instructions the Escrow Agent may conclusively rely and shall have no responsibility to review the order to which such confirmation and instruction refers.

Court Review. In order for the Committee to operate and administer the claims procedures in a timely and efficient manner, any claimant whose appeal with respect to a claim for benefits has been denied and who desires to begin a legal action with respect to such claim, must begin such action in a court of competent jurisdiction within 90 days after receipt of notification of such denial, and shall not be permitted to introduce any new facts or legal theories that were not presented during the claim review process. Failure to file such action by the prescribed time shall result in the permanent denial of such claim.

Court Actions. Nothing contained in this Agreement shall deny either party the right to seek injunctive or other equitable relief from a court of competent jurisdiction in the context of a bona fide emergency or prospective irreparable harm, and such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding. In addition, either party may bring an action in any court of competent jurisdiction to resolve disputes pertaining to the validity, construction, scope, enforceability, infringement or other violations of patent rights or other intellectual property rights, and no such claim shall be subject to arbitration pursuant to [Section 10.2].

Statutes; Court Orders. No statute, rule or regulation shall have been enacted or promulgated by any Governmental Entity which prohibits the consummation of the Closing; there shall be no Order of a court of competent jurisdiction in effect precluding consummation of the Closing; provided, that the Parties shall use their commercially reasonable efforts to have any such Order vacated or lifted; and there shall not be pending any Action by any Governmental Entity seeking to restrain or prohibit the consummation of the Closing or the performance of any of the other Transactions; and

Section # Determination of Right of Indemnification. Any indemnification under [Sections 7.1 or 7.2]2] of this [Article VII] (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Agent is proper in the circumstances because the Agent has met the applicable standard of conduct set forth in [Sections 7.1 and 7.2]2] hereof, which determination is made # by the Board of Directors, by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or # if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or # by the stockholders.

Governing Law/Court Proceedings. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to principles of conflicts of law of such state. Any suit, action or proceeding arising out of, or with respect to this Agreement, its enforcement, breach, or interpretation, shall be brought in any court of competent jurisdiction in the State of Delaware, County of New Castle, and the Company and Grantee hereby submit to the exclusive jurisdiction of such court (and its appellate court, whether or not located in the State of Delaware) for the purpose of any such suit, action, or proceeding. The Company and Grantee hereby irrevocably waive # any objections which each may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware, County of New Castle, # any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum and # any right to a jury trial.

RIGHT TO PETITION COURT. In the event that the Director makes a request for payment of Indemnifiable Amounts under Clauses 6 and 8-10 above, and the Company fails to make such payment or advancement in a timely manner pursuant to the terms of this Agreement, the Director may petition the appropriate judicial authority to enforce the Company’s obligations under this Agreement.

That a court of final instance has ordered payment of an amount of money by Ergo to EMM, in terms of an order as referred to above, a copy of the order shall be attached to the written demand,

The arbitrator’s authority shall include the ability to render equitable types of relief and, in such event, any aforesaid court may enter an order enjoining and/or compelling such actions or relief ordered or as found by the arbitrator.

Section # Indemnification by a Court 34

Indemnification. If, in connection with any agreement related to a transaction that will result in a Change in Control, an undertaking is made to provide the Board with rights to indemnification from the Company (or from any other party to such agreement), the Executive will, by virtue of this Agreement, be entitled to the same rights to indemnification as are provided to the members of the Board pursuant to such agreement. Otherwise, the Executive will be entitled to indemnification rights on terms no less favorable to Executive than those available under the Certificate of Incorporation, bylaws or resolutions of the Company at any time after the Change in Control to his peer executives of the Company. Such indemnification rights will be with respect to all claims, actions, suits, or proceedings to which the Executive is or is threatened to be made a party that arise out of or are connected to his services at any time prior to the termination of his employment, without regard to whether such claims, actions, suits, or proceedings are made, asserted, or arise during or after the Protected Period.

Indemnification. Subject to the survival terms set forth in [Section 8], the Seller, on the one hand, and the Purchaser, on the other hand, (as applicable, the “Indemnifying Party”) shall indemnify, defend, and hold the other party hereto and its officers, directors, agents, partners (with respect to the Purchaser, including ​), members, controlling entities and employees (collectively, “Indemnitees”) harmless from and against any liability, claim, cost, loss, judgment, damage or expense (including reasonable attorneys’ fees and expenses) that any Indemnitee incurs or suffers as a result of, or arising out of, # a material breach by the Indemnifying Party of any of its representations, warranties, covenants or agreements in this Agreement (other than [Section 8]) or # a breach by the Indemnifying Party of any of its representations, warranties, covenants or agreements in [Section 7] of this Agreement.

#​ agrees to indemnify and hold harmless each Notice Holder, each person, if any, who controls any Notice Holder within the meaning of either Section 15 of the U.S. Securities Act or Section 20 of the U.S. Exchange Act, any underwriter (as defined in the U.S. Securities Act) for such Notice Holder, and each affiliate (as defined in Rule 144) of any Notice Holder within the meaning of Rule 405 under the U.S. Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim), as incurred, caused by or that are based upon or arise as of any untrue statement or alleged untrue statement of a material fact contained in any Resale Document or any Issuer Free Writing Prospectus prepared by it or authorized by it in writing for use by such Notice Holder (as amended or supplemented if ​ shall have furnished any amendments or supplements thereto), caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made, except to the extent such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Notice Holder furnished to ​ in writing by or on behalf of such Notice Holder expressly for use therein; provided that the foregoing indemnity shall not inure to the benefit of any Notice Holder (or to the benefit of any person controlling such Notice Holder) from whom the person asserting such losses, claims, damages or liabilities purchased the Registrable Securities, if a copy of the Prospectus or the Issuer Free Writing Prospectus (both as then amended or supplemented if ​ shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Notice Holder to such person, if required by law so to have been delivered at or prior to the written confirmation of the sale of the Registrable Securities to such person, and if the Prospectus or the Issuer Free Writing Prospectus (both as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such failure is the result of noncompliance by ​ under this Agreement.