The Breslow Parties, jointly and severally, shall defend, protect, indemnify and hold harmless the Company and all of the Company’s past and present stockholders, officers, directors, employees, attorneys, agents, successors, and other representatives (collectively, the “ Indemnitees ”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “ Indemnified Liabilities ”), incurred by any Indemnitee as a result of, or arising out of, any breach of any representation, warranty or covenant of the Breslow Parties set forth in this Agreement. Any indemnification payment by the Breslow Parties may be in the form of a cash payment by the Breslow Parties or, provided that the ownership by the Breslow Trust of the Aggregate Debt or the New Promissory Note has not been invalidated or is then in dispute and the right and power of the Breslow Trust to enter into this Agreement has not been invalidated or is then in dispute, an assignment of or the surrender and cancellation of the New Promissory Note and any shares of Company Common Stock issued upon conversion thereof and then held by the Breslow Parties, or any combination of the foregoing, as determined in the Breslow Parties’ discretion. To request indemnification pursuant to this Section 5(C), the applicable Indemnitees shall deliver to the Breslow Parties prompt written notice of any demand, claim or circumstances which purportedly give rise to a claim or the commencement of any action, proceeding or investigation in respect of which such Indemnitees are entitled to be indemnified for Indemnifiable Losses pursuant to this Section 5C, and the Breslow Parties shall be entitled assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnitee, and the Breslow Parties shall pay all fees and expenses incurred by them in connection with such defense; provided, however , that the failure of any Indemnitee so to notify the Breslow Parties shall not relieve the Breslow Parties of its obligations hereunder except to the extent that the Breslow Parties are actually and materially prejudiced by such failure to notify. Any Indemnitee shall have the right to participate in (but not control) the defense of such a claim using its own counsel, but the fees and expenses of such Indemnitee counsel shall be at the sole expense of such Indemnitee unless: (i) the Breslow Parties agree to pay such fees and expenses in their sole discretion or; (ii) the Breslow Parties shall have failed after timely delivery of written notice from the applicable Indemnitee(s) to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnitee in such proceeding; or (iii) in the reasonable judgment of counsel to the Breslow Parties and such Indemnitee, representation of both parties by the same counsel would be inappropriate due to actual or potential legal or ethical conflicts of interests. Notwithstanding the foregoing or anything to the contrary herein, in no event shall the execution and delivery of this Agreement or the New Promissory Note nor the consummation of the transactions contemplated hereby or thereby, nor any rescission pursuant to Section 3(B) hereof, amend or impair any indemnification, contribution or exculpation rights for the benefit of Warren L. Breslow or any affiliate thereof as from time to time are available under applicable law, in equity, or pursuant to the organizational or governing documents of the Company or any applicable contract.