Common use of Resolution of Conflicts; Arbitration Clause in Contracts

Resolution of Conflicts; Arbitration. (a) In case Seller shall so object in writing to any claim or claims made in any Officer's Certificate, Seller and Buyer shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller and Buyer should so agree, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer and Seller. (b) If no such agreement can be reached after good faith negotiation, either Buyer or Seller may demand arbitration of the matter unless the amount of the Loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, in either such event, the matter shall be settled by arbitration conducted by three arbitrators. Buyer and Seller shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of a majority of the arbitrators so selected as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Agreement. (c) Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in Alameda County, California under the rules then in effect of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer shall be deemed to be the "Non-Prevailing Party" in the event that the arbitrators award Buyer less than fifty percent (50%) of the disputed amount (in addition to any amount not in dispute); otherwise, Seller shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitration.

Resolution of Conflicts; Arbitration. (a) In case Seller the Shareholders' Agent shall so object in writing to any claim or claims by Parent made in any Officer's Certificate, Seller Parent shall have ten (10) days after receipt by the Escrow Agent of an objection by the Shareholders' Agent to respond in a written statement to the objection of the Shareholders' Agent. If after such ten (10) day period there remains a dispute as to any claims, the Shareholders' Agent and Buyer Parent shall attempt in good faith for ten (10) days to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller the Shareholders' Agent and Buyer Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer both parties and Sellershall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and shall distribute the Parent Common Stock or other property from the Escrow Fund in accordance with the terms thereof. (b) If no such agreement can be reached after good faith negotiation, either Buyer Parent or Seller may the Shareholders' Agent may, by written notice to the other, demand arbitration of the matter unless the amount of the Loss damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitrators. Buyer and Seller shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of a majority of the arbitrators so selected arbitrator as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Agreement, and notwithstanding anything in Section 8.5 hereof, the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith. (c) Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in Alameda Santa ▇▇▇▇▇, San Mateo or San Francisco County, California under the commercial rules then in effect of the American Arbitration Association. For purposes of this Section 8.58.6(c), in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer Parent shall be deemed to be the "Non-Prevailing Party" in the event that Party unless the arbitrators award Buyer less Parent more than fifty percent one-half (50%1/2) of the disputed amount (in addition to dispute, plus any amount amounts not in dispute); otherwise, Seller Company shareholders for whom shares of Company Common Stock otherwise issuable to them have been deposited in the Escrow Fund shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, including without limitation, reasonable attorneys' fees and costs, reasonably incurred by the other party to the arbitration.

Resolution of Conflicts; Arbitration. (a) In case Seller shall so object in writing to any claim or claims by Buyer made in any Officer's Certificate, Seller and Buyer shall attempt in good faith for sixty (60) days to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller and Buyer should so agree, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer both parties and Sellershall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and shall distribute the Escrow Funds in accordance with the terms thereof. (b) If no such agreement can be reached after good faith negotiation, either Buyer or Seller may may, by written notice to the other, demand arbitration of the matter unless the amount of the Loss Losses is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitrators. Within fifteen (15) days after such written notice is sent, Buyer and Seller shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of a majority of the arbitrators so selected as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Agreement, and notwithstanding anything in Section 8.06 hereof, the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith. (c) Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in Alameda San Mateo County, California under the commercial rules then in effect of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer and Seller shall be deemed to be the "Non-Prevailing Party" in the event that the arbitrators award Buyer less than fifty percent (50%) share equally all fees and expenses of the disputed amount (in addition to any amount not in dispute); otherwise, Seller shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitrationarbitrators.

Resolution of Conflicts; Arbitration. (ai) In case Seller shall so object Stockholder delivers an Objection Notice in writing to any claim or claims made in any Officer's Certificateaccordance with Section 8.4(e) hereof, Seller Stockholder and Buyer Parent shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller Stockholder and Buyer Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by each both parties and, in the case of Buyer a claim against the Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and Sellermake distributions from the Escrow Fund in accordance with the terms thereof. (bii) If no such agreement can be reached after good faith negotiationnegotiation and prior to thirty (30) days after delivery of an Objection Notice, either Buyer Parent or Seller Stockholder may demand arbitration of the matter unless the amount of the Loss that is at issue in is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitratorsone arbitrator mutually agreeable to Parent and Stockholder. Buyer In the event that, within thirty (30) days after submission of any dispute to arbitration, Parent and Seller Stockholder cannot mutually agree on one arbitrator, then, within fifteen (15) days after the end of such thirty (30) day period, Parent and Stockholder shall each select one arbitrator, and the . The two arbitrators so selected shall select a third arbitrator. If Stockholder fails to select an arbitrator during this fifteen (15) day period, then the parties agree that the arbitration will be conducted by one arbitrator selected by Parent. (iii) Any such arbitration shall be held in San Francisco County, California, under the Arbitration Rules and Procedures of JAMS/Endispute (“JAMS”). The decision arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each party, the fees of each arbitrator and the administrative fee of JAMS. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover relevant information from the opposing parties about the subject matter of the dispute. The arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrators so selected or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Officer's ’s Certificate shall be binding final, binding, and conclusive upon the parties to this Agreement. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator(s), and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within 30 days of a decision of the arbitrator(s) requiring payment by one party to another, such party shall make the payment to such other party, including any distributions out of the Escrow Fund, as applicable. (civ) Judgment upon any award rendered by the arbitrators arbitrator(s) may be entered in any court having jurisdiction. Any Except as set forth in Section 8.4(g) hereof, the forgoing arbitration provision shall apply to any dispute among Stockholder or any Indemnifying Party and the Indemnified Parties under this ARTICLE VIII hereof, whether relating to claims upon the Escrow Fund or to the other indemnification obligations set forth in this ARTICLE VIII. (v) Nothing contained in this Section 8.4 shall prevent any party hereto from resorting to judicial process if injunctive or other equitable relief from a court is necessary to prevent injury to such party or its Affiliates. The use of arbitration shall procedures will not be held in Alameda County, California construed under the rules then in effect doctrine of laches, waiver or estoppel to affect adversely the American Arbitration Association. For purposes rights of this Section 8.5, in any arbitration hereunder in which party hereto to assert any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer shall be deemed to be the "Non-Prevailing Party" in the event that the arbitrators award Buyer less than fifty percent (50%) of the disputed amount (in addition to any amount not in dispute); otherwise, Seller shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitrationdefense.

Resolution of Conflicts; Arbitration. (ai) In case Seller shall so object the Shareholder Representative delivers an Objection Notice in writing accordance with Section 7.4(e) hereof (other than in connection with Agreed-Upon Losses as defined in Section 7.4(f)(v) hereof, for which the Shareholder Representative has waived the right to any claim or claims made in any Officer's Certificateobject), Seller the Shareholder Representative and Buyer Parent shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller the Shareholder Representative and Buyer Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by each both parties and, in the case of Buyer a claim against the Total Holdback Amount, shall be furnished to Parent and Sellerthe Shareholder Representative. The Parent shall be entitled to rely on any such memorandum and make deductions from the Total Holdback Amount in accordance with the terms thereof. (bii) If no such agreement can be reached after good faith negotiationnegotiation and prior to thirty (30) days after delivery of an Objection Notice, either Buyer Parent or Seller the Shareholder Representative may demand arbitration of the matter unless the amount of the Loss that is at issue in is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitratorsone arbitrator mutually agreeable to Parent and the Shareholder Representative. Buyer In the event that, within thirty (30) days after submission of any dispute to arbitration, Parent and Seller the Shareholder Representative cannot mutually agree on one arbitrator, then, within fifteen (15) days after the end of such thirty (30) day period, Parent and the Shareholder Representative shall each select one arbitrator, and the . The two arbitrators so selected shall select a third arbitrator. If the Shareholder Representative fails to select an arbitrator during this fifteen (15) day period, then the parties agree that the arbitration will be conducted by one arbitrator selected by Parent. (iii) Any such arbitration shall be held in Santa C▇▇▇▇ County, California, under the rules then in effect of the American Arbitration Association. The decision arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover relevant information from the opposing parties about the subject matter of the dispute. The arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrators so selected or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Officer's ’s Certificate shall be binding final, binding, and conclusive upon the parties to this AgreementAgreement and the Shareholders. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator(s), and the Parent shall be entitled to rely on, and make deductions from the Total Holdback Amount in accordance with, the terms of such award, judgment, decree or order as applicable. Within 30 days of a decision of the arbitrator(s) requiring payment by one party to another, such party shall make the payment to such other party, including any deduction from the Total Holdback Amount, as applicable. (civ) Judgment upon any award rendered by the arbitrators arbitrator(s) may be entered in any court having jurisdiction. Any Except as set forth in Section 7.4(f)(v) hereof, the forgoing arbitration provision shall apply to any dispute among the Shareholders or any Indemnifying Party and the Indemnified Parties under this Article VII hereof, whether relating to claims upon the Total Holdback Amount or to the other indemnification obligations set forth in this Article VII (other than with respect to claims for indemnification outside of the Total Holdback Amount pursued directly against any Shareholder or any other Person as permitted by this Article VII). (v) This Section 7.4(f) shall not apply to claims against the Total Holdback Amount made in respect of (A) any Dissenting Share Payments to the extent that such arbitration Dissenting Share Payments exceed the consideration that such dissenting Shareholders would have received in the Merger has no Dissenting Share Payment been made, and (B) any Final Assumed Liability Adjustment (each of (A) and (B), an “Agreed-Upon Loss”). Claims against the Total Holdback Amount made in respect of any Agreed-Upon Loss shall be held in Alameda County, California under the rules then in effect of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated resolved in the Officer's Certificate is at issue, Buyer shall be deemed to be the "Non-Prevailing Party" manner described in the event that the arbitrators award Buyer less than fifty percent (50%Section 7.4(d) of the disputed amount (in addition to any amount not in dispute); otherwise, Seller shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitrationhereof.

Resolution of Conflicts; Arbitration. (a) In case Seller If the Spokesperson shall so object in writing to the indemnity of the eGain Indemnitees in respect of any claim or claims made in any Officer's Certificate, Seller the Spokesperson and Buyer eGain shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller the Spokesperson and Buyer eGain should so agree, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer both parties and Sellershall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and distribute the eGain Units or other property from the Escrow Fund in accordance with the terms thereof. (b) If no such agreement can be reached after good faith negotiationnegotiation within sixty (60) days after objection by either the Spokesperson or eGain, either Buyer eGain or Seller the Spokesperson may demand arbitration of the matter unless the amount of the Loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, in either such event, and the matter shall be settled by arbitration conducted by three arbitrators. Buyer eGain and Seller the Spokesperson shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of a majority of the arbitrators so selected as to the validity and amount of any claim in such Officer's Certificate or by Sitebridge and the Selling Stockholders shall be final and binding and conclusive upon the parties to this Agreement, and, notwithstanding anything in Section 8.6 hereof, the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith, if applicable. (c) Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in Alameda Countythe City of San Jose, California under the rules then in effect of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer A claimant shall be deemed to be the "Nonnon-Prevailing Party" prevailing party in the event that the arbitrators award Buyer such claimant less than fifty percent one-half (50%1/2) of the disputed amount (in addition to any amount not in dispute)claimed by it; otherwise, Seller the other party shall be deemed to be the Non-Prevailing Partynon- prevailing party. The Nonnon-Prevailing Party prevailing party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, costs incurred by the other party to the arbitrationarbitration as well as the amount of any Indemnifiable Damages awarded and in addition interest thereon from the date of actual loss or expenditure until the date paid at ten percent (10%) per annum, or at the maximum rate permitted by applicable law if less than ten percent (10%) per annum .

Resolution of Conflicts; Arbitration. (ai) In case Seller shall so object the Shareholder Representative or any Company Securityholder (as applicable, the "Objecting Party”) delivers an Objection Notice in writing accordance with Section 7.4(h) hereof (other than in connection with Agreed-Upon Losses as defined in Section 7.4(i)(v) hereof, for which the Shareholder Representative has waived the right to any claim or claims made in any Officer's Certificateobject), Seller the Objecting Party and Buyer Parent shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller the Objecting Party and Buyer Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by each both parties and, in the case of Buyer a claim against the Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and Sellermake distributions from the Escrow Fund in accordance with the terms thereof. (bii) If no such agreement can be reached after good faith negotiationnegotiation and prior to thirty (30) days after delivery of an Objection Notice, either Buyer Parent or Seller the Objecting Party may demand arbitration of the matter unless the amount of the Loss that is at issue in is the subject of a pending litigation with a third partyThird Party Claim, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitratorsone arbitrator mutually agreeable to Parent and the Objecting Party. Buyer In the event that, within thirty (30) days after submission of any dispute to arbitration, Parent and Seller the Objecting Party cannot mutually agree on one arbitrator, then, within fifteen (15) days after the end of such thirty (30) day period, Parent and the Objecting Party shall each select one arbitrator, and the . The two arbitrators so selected shall select a third arbitrator. If the Objecting Party fails to select an arbitrator during this fifteen (15) day period, then the parties agree that the arbitration will be conducted by one arbitrator selected by Parent. (iii) Any such arbitration shall be held in Santa C▇▇▇▇ County, California, under the Arbitration Rules and Procedures of JAMS/Endispute (“JAMS”). The decision arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each party, the fees of each arbitrator and the administrative fee of JAMS. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover relevant information from the opposing parties about the subject matter of the dispute. The arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrators so selected or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Officer's ’s Certificate shall be binding final, binding, and conclusive upon the parties to this AgreementAgreement and the Securityholders. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator(s), and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within 30 days of a decision of the arbitrator(s) requiring payment by one party to another, such party shall make the payment to such other party, including any distributions out of the Escrow Fund, as applicable. (civ) Judgment upon any award rendered by the arbitrators arbitrator(s) may be entered in any court having jurisdiction. Any such Except as set forth in Section 7.4(i)(v) hereof, the forgoing arbitration provision shall apply to any dispute among the Securityholders or any Indemnifying Party and the Indemnified Parties under this Article VII hereof, whether relating to claims upon the Escrow Fund or to the other indemnification obligations set forth in this Article VII. (v) This Section 7.4(i) shall not apply to claims against the Escrow Fund made in respect of (A) any Dissenting Share Payments, (B) the Excess Third Party Expenses Indemnification Amount, if any, and (C) any Agent Interpleader Expenses or Agent Indemnification Expenses pursuant to clauses (vi) and (vii) of Section 7.4(k) hereof (each of (A), (B), (C) and (D), an “Agreed-Upon Loss”). Claims against the Escrow Fund made in respect of any Agreed-Upon Loss shall be held in Alameda County, California under the rules then in effect of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated resolved in the Officer's Certificate is at issue, Buyer shall be deemed to be the "Non-Prevailing Party" manner described in the event that the arbitrators award Buyer less than fifty percent (50%Section 7.4(h) of the disputed amount (in addition to any amount not in dispute); otherwise, Seller shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitrationhereof.

Resolution of Conflicts; Arbitration. (ai) In case Seller the Shareholders’ Representative shall so object in writing to any claim or claims made in any Officer's ’s Certificate, Seller the Shareholders’ Representative and Buyer Purchaser shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller the Shareholders’ Representative and Buyer Purchaser should so agree, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer both parties and Sellershall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and distribute cash from the Indemnification Escrow Fund in accordance with the terms thereof. (bii) If no such agreement can be reached after good faith negotiation, either Buyer Purchaser or Seller the Shareholders’ Representative may demand arbitration of the matter unless the amount of the Loss damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, arbitration in either such event, the matter shall be settled by arbitration conducted by three arbitrators. Buyer and Seller shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitratoraccordance with Section 10.11 below. The decision of a majority of the arbitrators so selected as to the validity and amount of any claim in such Officer's ’s Certificate shall be binding and conclusive upon the parties to this Agreement. (c, and notwithstanding anything in Section 8.2(g) Judgment upon any award rendered hereof, the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Indemnification Escrow Fund in accordance therewith. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrators. The fees, expenses, and the costs of the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in Alameda County, California under borne by the rules then in effect of non-prevailing party to the American Arbitration Associationarbitration. For purposes of this Section 8.5the foregoing, in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's ’s Certificate is at issue, Buyer Purchaser shall be deemed to be the "Nonnon-Prevailing Party" prevailing party in the event that the arbitrators award Buyer Purchaser less than fifty percent the sum of one-half (50%1/2) of the disputed amount (in addition to plus any amount amounts not in dispute); otherwise, Seller the Shareholders as represented by the Shareholders’ Representative shall be deemed to be the Nonnon-Prevailing Partyprevailing party. The Non-Prevailing Party to an arbitration shall pay its own expensesIn all other instances, the fees of each arbitrator, the administrative fee arbitrators shall make a ruling as to which of the American Arbitration Association, and parties shall be deemed the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitrationnon-prevailing party.

Resolution of Conflicts; Arbitration. (a) In case Seller shall so object in writing If after such thirty (30) day period there remains a dispute as to any claim or claims made in any Officer's Certificateclaims, Seller the Stockholders Representative and Buyer Acquiror shall attempt in good faith for thirty (30) days thereafter to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller the Stockholders Representative and Buyer Acquiror should so agree, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer both parties and Sellershall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and shall distribute or withhold funds from the Escrow Fund in accordance with the terms thereof. (b) If no such agreement can be reached after good faith negotiationnegotiation after expiration of the second 30-day period provided above, either Buyer Acquiror or Seller may the Stockholders Representative may, by written notice to the other, demand arbitration of the matter unless the amount of the Loss damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitrators. Buyer and Seller shall each select one arbitrator, and (1) arbitrator selected by the two arbitrators so selected shall select a third arbitratorAmerican Arbitration Association. The decision of a majority of the arbitrators so selected as to the validity and amount of any claim in such Officer's ’s Certificate shall be binding and conclusive upon the parties to this Agreement, and notwithstanding anything in this Section 9.8, the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith. (c) Judgment upon any award rendered by the arbitrators arbitrator may be entered in any court having jurisdiction. Any such arbitration shall be held in Alameda CountySan Diego, California California, under the complex commercial rules then in effect of the American Arbitration Association. For purposes of the last sentence of this Section 8.59.8(c), in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's ’s Certificate is at issue, Buyer Acquiror shall be deemed to be the "Non-Prevailing Party" in the event that ” unless the arbitrators award Buyer less Acquiror more than fifty percent three-fifths (50%3/5) of the disputed amount (in addition to dispute, plus any amount amounts not in dispute); otherwise, Seller the Stockholders Representative shall be deemed to be the “Non-Prevailing Party” (with the following payments to be made from the Escrow). The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, including without limitation, reasonable attorneys' ’ fees and costs, reasonably incurred by the other party to the arbitration.

Resolution of Conflicts; Arbitration. (a) In case Seller the Shareholders' Agent shall so object in writing to any claim or claims by Parent made in any Officer's Certificate, Seller Parent shall have ten (10) days after receipt by the Escrow Agent of an objection by the Shareholders' Agent to respond in a written statement to the objection of the Shareholders' Agent. If after such ten (10) day period there remains a dispute as to any claims, the Shareholders' Agent and Buyer Parent shall attempt in good faith for ten (10) days to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller the Shareholders' Agent and Buyer Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer both parties and Sellershall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and shall distribute the Parent Common Stock or other property from the Escrow Funds in accordance with the terms thereof. (b) If no such agreement can be reached after good faith negotiation, either Buyer Parent or Seller may the Shareholders' Agent may, by written notice to the other, demand arbitration of the matter unless the amount of the Loss damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitrators. Buyer and Seller shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of a majority of the arbitrators so selected arbitrator as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Agreement, and notwithstanding anything in Section 8.5 hereof, the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Funds in accordance therewith. (c) Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in Alameda Santa ▇▇▇▇▇, San Mateo or San Francisco County, California under the commercial rules then in effect of the American Arbitration Association. For purposes of this Section 8.58.6(c), in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer Parent shall be deemed to be the "Non-Prevailing Party" in the event that Party unless the arbitrators award Buyer less Parent more than fifty percent one-half (50%1/2) of the disputed amount (in addition to dispute, plus any amount amounts not in dispute); otherwise, Seller the Company shareholders for whom shares of Parent Common Stock otherwise issuable to them have been deposited in the Escrow Funds shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, including without limitation, reasonable attorneys' fees and costs, reasonably incurred by the other party to the arbitration.

Resolution of Conflicts; Arbitration. (a) In case Seller the Parent shall so properly object in writing to any claim or claims made in any Officer's CertificateIndemnification Notice, Seller the Parent and Buyer shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller and Buyer should so agree, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer and Seller. (b) If no such agreement can be reached after good faith negotiationnegotiation within twenty-one (21) days, either Buyer or Seller may the Parent may, by written notice to the other (the "Demand"), demand arbitration of the matter unless the amount of the Loss Damages is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitrators. The parties agree that such arbitration shall be submitted to the Judicial Arbitration and Mediation Services, Inc./Endispute ("JAMS/Endispute") in San Jose, California, and shall be final, binding and nonappealable. The arbitration will be conducted in accordance with the provisions of the Comprehensive Arbitration Rules and Procedures of JAMS/Endispute in effect at the time of filing of the Demand, except as specifically set forth herein. The parties covenant that they shall participate in the arbitration in good faith, and that they shall share equally in its costs. Buyer and Seller the Parent shall each select one arbitratorarbitrator within fifteen (15) business days following the Demand, and the two arbitrators so selected shall select a third arbitratorarbitrator within fifteen (15) business days thereafter, each of which arbitrators shall be independent. In the event that either Buyer or the Parent fails to appoint an arbitrator within the period prescribed, or such appointed arbitrators fail to appoint the third arbitrator within the period prescribed, any such arbitrators that have not been so appointed shall be appointed by JAMS/Endispute following written request of either Buyer or the Parent. The arbitrators shall set a limited time period (not to exceed ninety (90) days) and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the arbitrators, to discover relevant information from the opposing parties about the subject matter of the dispute. The arbitrators shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys fees and costs, to the same extent as a competent court of law or equity, should the arbitrators determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. Each party shall submit to the arbitrators and exchange with each other in advance of the hearing their last best offers regarding resolution of the dispute. The arbitrators shall be limited to awarding only one or the other of the two offers submitted and may not choose any other figure or compromise. The decision of a majority of the three arbitrators so selected as to the validity and amount of any claim in such Officer's Certificate Indemnification Notice shall be binding and conclusive upon the parties to this Agreement. (c) Judgment upon any award rendered . Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in Alameda County, California under the rules then in effect of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer shall be deemed to be the "Non-Prevailing Party" in the event that the arbitrators award Buyer less than fifty percent (50%) of the disputed amount (in addition to any amount not in dispute); otherwise, Seller shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitrationarbitrators.

Resolution of Conflicts; Arbitration. (ai) In case Seller Securityholder Agent shall so object timely in writing to any claim or claims made in any Officer's Certificate’s Certificate as not being a claim that is properly an Indemnified Claim, Seller Buyer and Buyer Securityholder Agent shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted claims for a period of 30 days after Escrow Agent’s receipt of Seller’s written objection to agree in good faith if Buyer chooses the claim pursuant to demand arbitration of Section 3(c) (the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection“Negotiation Period”). If Seller Buyer and Buyer Securityholder Agent should so agreeagree during the Negotiation Period, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer both parties and Sellershall be furnished to Escrow Agent. Escrow Agent shall be entitled to rely on any such memorandum and distribute the Exchange Shares from the Escrow Fund in accordance with the terms thereof. (bii) If no such agreement can be has been reached after good faith negotiationby the end of the Negotiation Period, either Buyer or Seller Securityholder Agent may demand arbitration of the matter unless the amount of the Loss Losses is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained by settlement or a non-appealable decision of a court of competent jurisdiction or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitrators. Buyer and Seller shall each select one a single arbitrator, and selected by mutual agreement of the two arbitrators so selected shall select a third arbitratorparties or otherwise in accordance with the then prevailing rules of the American Arbitration Association as adopted by the State of California. The arbitration shall be conducted in the City of San Jose, California. The written decision of a majority of the arbitrators so selected arbitrator as to the validity and amount of any claim in such Officer's ’s Certificate shall be binding and conclusive upon the parties to this Agreement. , and notwithstanding anything in Section 3(c) hereof, Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith. The arbitrator shall award reimbursement to the prevailing party in the arbitration of its reasonable expenses of the arbitration (c) Judgment upon any including costs and reasonable attorneys’ fees). The award rendered by of the arbitrators may arbitrator shall be entered the sole and exclusive monetary remedy of the parties and shall be enforceable in any court having of competent jurisdiction. Any such arbitration Notwithstanding the foregoing, any party shall be held in Alameda County, California under the rules then in effect entitled to seek injunctive relief or other equitable remedies from any court of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer shall be deemed to be the "Non-Prevailing Party" in the event that the arbitrators award Buyer less than fifty percent (50%) of the disputed amount (in addition to any amount not in dispute); otherwise, Seller shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitrationcompetent jurisdiction.

Resolution of Conflicts; Arbitration. (ai) In case Seller the Securityholder Agent shall so object in writing to any claim or claims made in any Officer's ’s Certificate, Seller the Securityholder Agent and Buyer Parent shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller the Securityholder Agent and Buyer Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by each both parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and distribute shares of Buyer Parent Common Stock and Sellercash, if applicable, from the Escrow Fund in accordance with the terms thereof. (bii) If no such agreement can be reached after good faith negotiation, and in any event not later than sixty (60) days after receipt of the written objection of the Securityholder Agent, either Buyer Parent or Seller the Securityholder Agent may demand arbitration of the matter unless the amount of the Loss damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitrators. Buyer Any such arbitration shall be held in Santa C▇▇▇▇ County, California if the demand for arbitration is made by the Securityholder Agent, and Seller in San Diego County, California if the demand for arbitration is made by the Parent. Such arbitration shall be held under the American Arbitration Association Commercial Arbitration Rules then in effect. Parent and the Securityholder Agent shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator, each of which arbitrators shall be independent, meaning that they may not be current or former employees or consultants or the Parent, Merger Sub, Company or Surviving Corporation. The arbitrators must disclose any circumstances likely to affect their independence pursuant to Rule 19 of the American Arbitration Association Commercial Arbitration Rules. The period of discovery shall be limited to 60 days and limited to relevant information from the opposing parties about the subject matter of the dispute. The arbitrators shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys fees and costs, to the extent as a court of competent law or equity, should the arbitrators determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of a majority of the three arbitrators so selected as to the validity and amount of any claim in such Officer's ’s Certificate shall be binding and conclusive upon the parties to this Agreement, and notwithstanding anything in Section 8.2(e) hereof, the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrators. (ciii) Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in Alameda County, California under the rules then in effect of the American Arbitration Association. For purposes of this Section 8.58.2(f), in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's ’s Certificate is at issue, Buyer Parent shall be deemed to be the "Non-Prevailing Party" Party in the event that the arbitrators award Buyer Parent the sum of one-half ( 1/2) or less than fifty percent (50%) of the disputed amount (in addition to plus any amount amounts not in dispute); otherwise, Seller the shareholders of the Company as represented by the Securityholder Agent shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party Each party to an arbitration shall pay its own expenses, expenses and one half of (i) the fees of each arbitrator, arbitrator and (ii) the administrative fee costs of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitration.

Resolution of Conflicts; Arbitration. (ai) In case Seller shall so object in writing to any claim or claims made in any Officer's Certificate, Seller and Buyer Purchaser shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration claims within 45 days after Escrow Agent's receipt of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objectionwritten objection to the claim pursuant to Section 11.6(b) (the "Negotiation Period"). ------------------ If Seller and Buyer Purchaser should so agreeagree during the Negotiation Period, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer both parties and Sellershall be furnished to Escrow Agent. Escrow Agent shall be entitled to rely on any such memorandum and distribute the Escrow Consideration and any interest from the Escrow Fund in accordance with the terms thereof. (bii) If no such agreement can be has been reached after good faith negotiationby the end of the Negotiation Period, either Buyer Purchaser or Seller may demand arbitration of the matter unless the amount of the Loss Damages is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained by settlement or a non-appealable decision of a court of competent jurisdiction or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitrators. Buyer and Seller shall each select one a single arbitrator, and selected by mutual agreement of the two arbitrators so selected shall select a third arbitratorparties or otherwise in accordance with the then prevailing rules of the American Arbitration Association as adopted by the State of California. The arbitration shall be conducted in the City of San Jose, California. The written decision of a majority of the arbitrators so selected arbitrator as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Agreement. , and notwithstanding anything in Section 11.6(c) hereof, Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith. The arbitrator shall award reimbursement to the prevailing party in the arbitration of its reasonable expenses of the arbitration (c) Judgment upon any including costs and reasonable attorneys' fees). The award rendered by of the arbitrators may arbitrator shall be entered the sole and exclusive monetary remedy of the parties and shall be enforceable in any court having of competent jurisdiction. Any such arbitration Notwithstanding the foregoing, any party shall be held in Alameda County, California under the rules then in effect entitled to seek injunctive relief or other equitable remedies from any court of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer shall be deemed to be the "Non-Prevailing Party" in the event that the arbitrators award Buyer less than fifty percent (50%) of the disputed amount (in addition to any amount not in dispute); otherwise, Seller shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitrationcompetent jurisdiction.

Resolution of Conflicts; Arbitration. (ai) In case Seller the Stockholder Representative shall so object in writing to any claim or claims made in any Officer's ’s Certificate to recover Losses from the Escrow Account, or from the Company Indemnifying Parties directly, within thirty (30) days after delivery of such Officer’s Certificate, Seller the Stockholder Representative and Buyer Parent shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller the Stockholder Representative and Buyer Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by each both parties and, in the case of Buyer a claim against the Escrow Account, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and Sellerdistribute cash from the Escrow Account in accordance with the terms thereof. (bii) If no such agreement can be reached after good faith negotiationnegotiation and prior to sixty (60) days after delivery of an Officer’s Certificate, either Buyer Parent or Seller the Stockholder Representative may demand arbitration of the matter unless the amount of the Loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitratorsone arbitrator mutually agreeable to Parent and the Stockholder Representative. Buyer In the event that, within thirty (30) days after submission of any dispute to arbitration, Parent and Seller the Stockholder Representative cannot mutually agree on one arbitrator, then, within fifteen (15) days after the end of such thirty (30) day period, Parent and the Stockholder Representative shall each select one arbitrator, and the . The two arbitrators so selected shall select a third arbitrator. If either party fails to select an arbitrator during this fifteen (15) day period, then the parties agree that the arbitration will be conducted by one arbitrator selected by the other party. (iii) Any such arbitration shall be held in San Francisco County, California, under the rules then in effect of the American Arbitration Association. The decision arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including without limitation, the respective expenses of each party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover relevant information from the opposing parties about the subject matter of the dispute. The arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrators so selected or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Officer's ’s Certificate shall be binding final, binding, and conclusive upon the parties to this AgreementAgreement and the Company Indemnifying Parties. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator(s). Within thirty (30) days of a decision of the arbitrator(s) requiring payment by one party to another, such party shall make the payment to such other party. (civ) Judgment upon any award rendered by the arbitrators arbitrator(s) may be entered in any court having jurisdiction. Any such The forgoing arbitration provision shall be held in Alameda County, California under the rules then in effect of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer shall be deemed to be the "Non-Prevailing Party" in the event that the arbitrators award Buyer less than fifty percent (50%) of the disputed amount (in addition apply to any amount not in dispute); otherwise, Seller shall be deemed to be dispute between the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, Company Indemnifying Parties and the expensesIndemnified Party under this Article VIII, including, without limitation, reasonable attorneys' fees and costs, incurred by whether relating to claims upon the Escrow Account or to the other party to the arbitrationindemnification obligations set forth in this Article VIII.

Resolution of Conflicts; Arbitration. (ai) In case Seller shall so object in writing to any claim or claims made in any Officer's Certificate, Seller and Buyer Purchaser shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration claims within 45 days after Escrow Agent's receipt of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objectionwritten objection to the claim pursuant to Section 11.6(b) (the "Negotiation Period"). If Seller and Buyer Purchaser should so agreeagree during the Negotiation Period, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer both parties and Sellershall be furnished to Escrow Agent. Escrow Agent shall be entitled to rely on any such memorandum and distribute the Escrow Consideration and any interest from the Escrow Fund in accordance with the terms thereof. (bii) If no such agreement can be has been reached after good faith negotiationby the end of the Negotiation Period, either Buyer Purchaser or Seller may demand arbitration of the matter unless the amount of the Loss Damages is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained by settlement or a non-appealable decision of a court of competent jurisdiction or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitrators. Buyer and Seller shall each select one a single arbitrator, and selected by mutual agreement of the two arbitrators so selected shall select a third arbitratorparties or otherwise in accordance with the then prevailing rules of the American Arbitration Association as adopted by the State of California. The arbitration shall be conducted in the City of San Jose, California. The written decision of a majority of the arbitrators so selected arbitrator as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Agreement. , and notwithstanding anything in Section 11.6(c) hereof, Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith. The arbitrator shall award reimbursement to the prevailing party in the arbitration of its reasonable expenses of the arbitration (c) Judgment upon any including costs and reasonable attorneys' fees). The award rendered by of the arbitrators may arbitrator shall be entered the sole and exclusive monetary remedy of the parties and shall be enforceable in any court having of competent jurisdiction. Any such arbitration Notwithstanding the foregoing, any party shall be held in Alameda County, California under the rules then in effect entitled to seek injunctive relief or other equitable remedies from any court of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer shall be deemed to be the "Non-Prevailing Party" in the event that the arbitrators award Buyer less than fifty percent (50%) of the disputed amount (in addition to any amount not in dispute); otherwise, Seller shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the other party to the arbitrationcompetent jurisdiction.

Resolution of Conflicts; Arbitration. a. The Claiming Party shall deliver a written response to the Shareholder Representatives in respect of any Objection properly delivered by the Shareholder Representatives. If after twenty (a20) In case Seller shall so object in writing days following delivery of such response there remains a dispute as to any claim or claims made in any Officer's Certificateclaims, Seller the Shareholder Representatives and Buyer the Claiming Party shall attempt in good faith for sixty (60) days to agree upon the rights of the respective parties with respect to each of such claims; provided, however, that there shall be no presumption that Buyer has not attempted to agree in good faith if Buyer chooses to demand arbitration of the matter in the manner set forth in paragraph (b) below after fifteen (15) days following Seller's objection. If Seller the Shareholder Representatives and Buyer the Claiming Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by each of Buyer both and Sellershall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and shall distribute the Parent Common Stock or other property, if any, from the Indemnity Fund in accordance with the terms thereof. (b) b. If no such agreement can be reached after good faith negotiation, either Buyer the Claiming Party or Seller may the Shareholder Representatives may, by written notice to the other, demand arbitration of the matter unless the amount of the Loss or Expense is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and, and in either such event, event the matter shall be settled by arbitration conducted by three arbitrators. Buyer Within fifteen (15) days after such written notice is sent, Parent and Seller the Shareholder Representatives shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of a majority of the arbitrators so selected as to the validity and amount of any claim in such Officer's Certificate the related Claim Notice shall be binding binding, and conclusive upon conclusive, and notwithstanding anything in this Section 6, the parties Escrow Agent shall be entitled to this Agreementact in accordance with such decision and make or withhold payments out of the Indemnity Fund in accordance therewith. (c) c. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in Alameda CountySan Francisco, California under the commercial rules then in effect of the American Arbitration Association. For purposes of this Section 8.5, in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Buyer shall be deemed to be the "NonThe non-Prevailing Party" in the event that the arbitrators award Buyer less than fifty percent (50%) of the disputed amount (in addition to any amount not in dispute); otherwise, Seller shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party prevailing party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, including without limitation, reasonable attorneys' fees and costs, reasonably incurred by the other party to the arbitration.