Common use of Assumption of Defense Clause in Contracts

Assumption of Defense. If a Third Party Claim is made against an Indemnitee, the Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnitee of the commencement or assertion of any such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgment.

Assumption of Defense. If a Third The Indemnifying Party Claim is made against an Indemnitee, the Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnitee of the commencement or assertion of any such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory entitled to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and participate in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party ClaimClaim that is the subject of a notice given by the Indemnified Person pursuant to Section 9.2.5(a). In addition, upon written notice to the Indemnified Person, the Indemnitee Indemnifying Party shall have the right to participate in defend the defense thereof Indemnified Person against the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Person so long as the Indemnifying Party acknowledges its liability for such indemnification hereunder (which liability for indemnification shall thereby be conclusively established) and shall keep the Indemnified Person reasonably informed with respect to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim. In such event, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence Indemnified Person may retain separate co-counsel at its sole cost and documents relating to or expense and participate in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for (though not of record, and shall not communicate with the account Person asserting the Third Party Claim, or such Person’s Representatives, without the prior written consent of the Indemnitor Indemnifying Party); provided, that if the Indemnified Person shall have reasonably concluded that separate counsel is required because a conflict of interest would otherwise exist or because of the Indemnifying Party’s failure to defend for a period of sixty (with 60) calendar days any claim after receiving notice from the Indemnified Person of such alleged failure to defend, the Indemnified Person shall have the right to select separate counsel selected by of its own choosing to participate in the Indemnitee)defense, settlement, adjustment or compromise of such action on its behalf, and the reasonable costs and expenses (including reasonable attorneys’ fees) of defending such Third Party Claim shall be included as Losses. Furthermore, notwithstanding the foregoing, if (i) a Third Party Claim seeks relief other than the payment of monetary damages, or (ii) a Third Party Claim is or relates directly to compromise or any criminal Action, then, in each case, the Indemnified Person alone shall be entitled to contest, defend and settle such Third Party Claim ((i) and (ii) together, the “Excepted Procedural Matters”). The Indemnifying Party shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Person (such consent not to be unreasonably withheld, conditioned or delayed) unless such judgment, compromise or settlement (i) provides for the payment of money as sole relief for the claimant, and (ii) subject to the making of such payment, results in the full and general release of such Indemnified Person from all liabilities arising from or relating to the Third Party Claim. For the avoidance of doubt, exercising reasonable business judgmentany amounts paid or to be paid by an Indemnifying Party in connection with the defense, settlement or other resolution of any Third Party Claims shall be deemed to be Losses for purposes of the monetary limitations set forth in Section 9.2.4(b) and shall, in the case of any indemnification claim under Section 9.2.1, be paid solely in accordance with Section 9.2.3.

Assumption of Defense. If a Third Any Indemnified Party Claim is made against an Indemnitee, hereunder will (i) give prompt notice to the Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnitee of the commencement or assertion Indemnifying Party of any claim with respect to which it seeks indemnification and (ii) permit such Third Indemnifying Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable such claim with counsel reasonably satisfactory to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofIndemnified Party; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee any Indemnified Party shall have the right to employ separate counsel (which shall be reasonably satisfactory and to participate in the Indemnitor) to represent defense of such Indemnitee with respect to claim, but the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by at the expense of such Indemnitorperson unless: (A) the Indemnifying Party has agreed, in writing, to pay such fees or expenses; provided further, that (B) the Indemnitor Indemnifying Party shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes have failed to assume the defense of any Third such claim and employ counsel reasonably satisfactory to such Indemnified Party; or (C) based upon advice of counsel to such Indemnified Party, there shall be one or more defenses available to such Indemnified Party Claimthat are not available to the Indemnifying Party or there shall exist conflicts of interest pursuant to applicable rules of professional conduct between such Indemnified Party and the Indemnifying Party (in which case, if the Indemnitee shall have Indemnified Party notifies the right to participate Indemnifying Party in the defense thereof and writing that such Indemnified Party elects to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the IndemnitorIndemnifying Party, after three (3) Business Days notice the Indemnifying Party shall not have the right to the Indemnitor of its intent to do so, to undertake assume the defense of such claim on behalf of such Indemnified Party), in each of which events the Third Party Claim for fees and expenses of such counsel shall be at the account expense of the Indemnitor Indemnifying Party. The Indemnifying Party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld or delayed), but if settled with counsel selected its written consent, or if there be a final judgment against the Indemnified party in any such action or proceeding, the Indemnifying Party shall indemnify and hold harmless the Indemnified Parties from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. No Indemnified Party will be required to consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the Indemnitee), and claimant or plaintiff to compromise such Indemnified Party of a release from all liability in respect to such claim or settle such Third Party Claim, exercising reasonable business judgmentlitigation.

Assumption of Defense. If an Indemnified Person gives notice to the Indemnifying Person pursuant to Section 6.7(a) of the assertion of a Third Party Claim third-party claim, the Indemnifying Person shall be entitled to participate in the defense of such third-party claim and, to the extent that it wishes (unless (i) the Indemnifying Person is also a person against whom the third-party claim is made against an Indemnitee, and the Indemnitor will Indemnified Person determines in good faith that joint representation would be entitled, within one hundred twenty inappropriate or (120ii) days after receipt the Indemnifying Person fails to provide reasonable assurance to the Indemnified Person of written notice from the Indemnitee of the commencement or assertion of any its financial capacity to defend such Third Party Claimthird-party claim and provide indemnification with respect to such third-party claim), to assume the defense thereof (at the expense of the Indemnitor) such third-party claim with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as Indemnified Person. After notice from the Indemnitor is conducting a good faith and diligent defense. Should Indemnifying Person to the Indemnitor so elect Indemnified Person of its election to assume the defense of a Third Party Claimsuch third-party claim, the Indemnitor will not Indemnifying Person shall not, so long as it diligently conducts such defense, be liable to the Indemnitee Indemnified Person under this Article VI for any legal fees of other counsel or any other expenses with respect to the defense of such third-party claim, in each case subsequently incurred by the Indemnitee Indemnified Person in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such third- party claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict other than reasonable costs of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemniteeinvestigation. If the Indemnitor Indemnifying Person assumes the defense of a third-party claim, no compromise or settlement of such third-party claims may be effected by the Indemnifying Person without the Indemnified Person's consent, unless (x) there is no finding or admission of any Third Party Claim, violation of Legal Requirement or any violation of the Indemnitee rights of any person; (y) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person; and (z) the Indemnified Person shall have the right no liability with respect to participate in the defense thereof and to employ counsel, at any compromise or settlement of such third-party claims effected without its own expense, separate from the counsel employed by the Indemnitorconsent. If notice is given to an Indemnifying Person of the Indemnitor assumes assertion of any third-party claim and the Indemnifying Person does not, within 10 days after the Indemnified Person's notice is given, give notice to the Indemnified Person of its election to assume the defense of any Third Party Claimsuch third-party claim, the Indemnitor Indemnifying Person will promptly supply to the Indemnitee copies of all correspondence and documents relating to be bound by any determination made in such third-party claim or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to any compromise or in connection with such Third Party Claim, as may be reasonably requested settlement effected by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentIndemnified Person.

Assumption of Defense. If a Third Party Claim is made against an IndemniteeAn indemnified party shall promptly give written notice (which notice shall describe in reasonable detail the claim, the Indemnitor will provisions of this Agreement upon which such claim is based and the total monetary damages sought) to each indemnifying party after obtaining knowledge of any matter as to which recovery may be entitledsought against such indemnifying parry because of the indemnity set forth in this Section 13, within one hundred twenty (120) days after receipt of written notice and, if such indemnity shall arise from the Indemnitee claim of the commencement or assertion of any a third party, shall permit such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect indemnifying party to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal such claim or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofany proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Section 13, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Seller Indemnified Liabilities or Buyer Indemnified Liabilities, as applicable, that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the opinion indemnified party, or (ii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of counselboth parties by the same counsel would create a conflict. If an indemnifying party assumes the defense of such third party claim, such counsel and opinion being satisfactory indemnifying party shall agree prior thereto, in writing, that it is liable under this Section 13 to Indemnitor and its counsel, a conflict of interest exists between indemnify the Indemnitor and an Indemnitee indemnified party in accordance with the terms contained herein in respect of such claim, shall conduct such Indemnitee defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the indemnified party and shall, subject to the provisions of this Section 13, have the right to employ separate decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel (which chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the Indemnitor) indemnified party, and the indemnifying party will not without the written consent of the indemnified party consent to represent such Indemnitee the entry of any judgment or enter into any settlement with respect to the matters as matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto, or which may reasonably be expected to which have an adverse effect on the indemnified party. The indemnified party may participate in, but may not control, such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel third party within thirty (30) days after notice thereof shall be paid deemed a waiver by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses indemnifying party of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the its right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to defend such claim or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentaction.

Assumption of Defense. If An Indemnified Party (or in the case of a Third Party Claim is made against an IndemniteeStockholder Indemnified Party, the Indemnitor will Stockholder Representative) shall promptly give notice to each Indemnifying Party after obtaining knowledge of any matter as to which recovery may be entitledsought against such Indemnifying Party because of the indemnity set forth above, within one hundred twenty and, if such indemnity shall arise from the claim of a third party, shall provide such notice no later than forty-five (12045) days after receipt the Indemnifying Party first receives notice of written notice from the Indemnitee of the commencement or assertion of any such Third claim and shall permit such Indemnifying Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal such claim or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofany proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article IX, except, and only, to the extent such Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an Indemnifying Party may not assume the defense of any such third-party claim if (i) the claim could reasonably result in imprisonment of or imposition of a civil or criminal fine against the opinion Indemnified Party or its representatives, (ii) the claim could reasonably result in an equitable remedy that would impair the Indemnified Party’s ability to exercise its rights under this Agreement, or impair Parent’s right or ability to operate or control any Target Entity or any Target Entity Operation, (iii) the claim names both the Indemnifying Party and the Indemnified Party (including impleaded parties) and representation of counselboth such Parties by the same counsel would create a conflict, (iv) the aggregate amount of all Losses with respect to such claim or demand exceeds the remaining Indemnification Escrow Amount and Identified Matters Escrow Amount available to provide indemnification for such claim or demand, or (v) the Indemnified Party has been advised by counsel and opinion being satisfactory to Indemnitor and its counsel, that a reasonable likelihood exists of a conflict of interest exists between the Indemnitor Indemnifying Party and the Indemnified Party and the Indemnified Party is reasonably likely to be prejudiced by such conflict of interest. If an Indemnitee Indemnifying Party assumes the defense of such third party claim, such Indemnifying Party shall agree prior thereto, in writing, that it is liable under this Article IX to indemnify the Indemnified Party in accordance with the terms contained herein in respect of such claimclaim (subject to the limitations and other terms and conditions set forth in Article IX), shall conduct such Indemnitee defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the Indemnified Party and shall, subject to the provisions of this Section 9.7, have the right to employ separate counsel decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that the Indemnifying Party shall not without the written consent (which consent shall not be reasonably satisfactory unreasonably withheld, conditioned or delayed) of the Indemnified Party (or in the case of a Stockholder Indemnified Party, the Stockholder Representative) consent to the Indemnitor) to represent such Indemnitee entry of any judgment or enter into any settlement with respect to the matters as matter which (x) does not include a provision whereby the plaintiff or the claimant in the matter releases the Indemnified Party from all liability with respect thereto and (y) in the case of Parent, does not include any provision that would impose any obligation (including an obligation to which refrain from taking action) upon the Centerre Companies. The Indemnified Party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an Indemnifying Party to notify the Indemnified Party (or in the case of a conflict of interest exists and in that eventStockholder Indemnified Party, the reasonable fees and expenses Stockholder Representative) of its election to defend any such separate counsel claim or proceeding by a third party within thirty (30) days after notice thereof shall have been given to such Indemnifying Party by the Indemnified Party (or in the case of a Stockholder Indemnified Party, the Stockholder Representative), shall be paid deemed a waiver by such IndemnitorIndemnifying Party of its right to defend such claim or action; provided furtherthat, that if a shorter time is necessary to timely respond to a court filing, then the Indemnitor Indemnified Party shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and entitled to employ counsel, at its own expense, separate from the legal counsel employed to respond to such filing until receipt by the Indemnitor. If the Indemnitor assumes the defense Indemnifying Party of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies a timely notice of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses its election to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, claim or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentproceeding.

Assumption of Defense. If a Third Party Claim is made against an IndemniteeIndemnified Person, the Indemnitor Sellers’ Representative will be entitledentitled to participate in the defense thereof and, within one hundred twenty (120) days after receipt of written notice from the Indemnitee of the commencement or assertion of any such Third Party Claimif it so chooses, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory Sellers’ Representative by written notice to the IndemniteeIndemnified Person delivered to the Indemnified Party within fifteen (15) days following the delivery of the notice of the Third Party Claim; provided, however, that the Sellers’ Representative will not have the right to assume the defense of a Third Party Claim on behalf of an Indemnified Person and such Indemnified Person will have the right to retain, at the Sellers’ expense (each Seller to be responsible for so long as its Pro Rata Portion of such expense), one separate law firm to defend such Third Party Claim on behalf of such Indemnified Person if (a) the Indemnitor is conducting a good faith Indemnified Person reasonably concludes upon the advice of counsel that there exists any actual or potential conflict of interest between the Sellers’ Representative and diligent defensethe Indemnified Person with respect to the defense of the Third Party Claim, (b) the Third Party Claim seeks an injunction or other equitable relief against the Indemnified Person or involves damages other than money damages, (c) the Third Party Claim relates to or otherwise arises in connection with Taxes or any criminal or regulatory enforcement Action or (d) the Sellers’ Representative fails to conduct the defense of the Third Party Claim actively and diligently. Should Subject to the Indemnitor immediately preceding proviso, should the Sellers’ Representative so elect to assume the defense of a Third Party Claim, the Indemnitor Indemnified Person will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, in each case at its own expense, separate from the counsel employed by the IndemnitorSellers’ Representative, it being understood that the Sellers’ Representative will control such defense. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor Sellers’ Representative chooses to defend a Third Party Claim, all Indemnitees shall reasonably the Indemnified Persons will cooperate with the Indemnitor in the defense or prosecution thereof to the extent reasonably requested to do so. Notwithstanding anything in this Agreement to the contrary, if a Third Party Claim is subject to indemnification hereunder with respect to item 5 or 6 on Schedule 10.1 (such cooperation to be at the expense“Earn-out Claims”), including reasonable legal fees and expenses, of (i) the Indemnitor). If Sellers’ Representative shall have the Indemnitor does not elect unrestricted right to assume control of the defense of such Earn-Out Claim as long as it is actively and diligently conducting such defense, (ii) without the consent of the Sellers’ Representative, no Group Company or Buyer Party shall become involved in discussions with, or correspond with, the applicable third party about any Third Party Earn-out Claim, within and (iii) the one hundred twenty (120) day period set forth aboveIndemnified Person with respect to such Earn-out Claim shall not have the right to participate in the defense thereof; provided, or however, that the Sellers’ Representative is not permitted to enter into a settlement of any Earn-out Claim if such good faith and diligent defense is settlement (x) involves an admission of wrongdoing by any Group Company or Buyer Party, (y) includes dollar amounts not being or ceases to be conducted paid entirely by the IndemnitorSellers or (z) involves relief other than monetary damages, in each case, without the prior written consent of the Indemnified Person. If there is a non-incidental breach of the provisions in the preceding sentence, the Indemnitee shall have Sellers’ obligation to indemnify the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim Indemnified Persons for the account applicable Earn-out Claim under this Agreement shall terminate and be of the Indemnitor (with counsel selected by the Indemnitee), and to compromise no further force or settle such Third Party Claim, exercising reasonable business judgmenteffect.

Assumption of Defense. If an Indemnified Person gives notice to the Indemnifying Person pursuant to Section 7.5.1 of the assertion of a Third third-Party Claim claim, the Indemnifying Person shall be entitled to participate in the defense of such third-Party claim and, to the extent that it wishes (unless (i) the Indemnifying Person is also a person against whom the third-Party claim is made against an Indemnitee, and the Indemnitor will Indemnified Person determines in good faith that joint representation would be entitled, within one hundred twenty inappropriate or (120ii) days after receipt the Indemnifying Person fails to provide reasonable assurance to the Indemnified Person of written notice from the Indemnitee of the commencement or assertion of any its financial capacity to defend such Third third-Party Claimclaim and provide indemnification with respect to such third-Party claim), to assume the defense thereof (at the expense of the Indemnitor) such third-Party claim with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as Indemnified Person. After notice from the Indemnitor is conducting a good faith and diligent defense. Should Indemnifying Person to the Indemnitor so elect Indemnified Person of its election to assume the defense of a Third such third-Party Claimclaim, the Indemnitor will not Indemnifying Person shall not, so long as it diligently conducts such defense, be liable to the Indemnitee Indemnified Person under this Article VII for any legal fees of other counsel or any other expenses with respect to the defense of such third-Party claim, in each case subsequently incurred by the Indemnitee Indemnified Person in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such third-Party claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict other than reasonable costs of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemniteeinvestigation. If the Indemnitor Indemnifying Person assumes the defense of a third-Party claim, no compromise or settlement of such third-Party claims may be effected by the Indemnifying Person without the Indemnified Person’s consent, unless (x) there is no finding or admission of any Third Party Claim, violation of Legal Requirement or any violation of the Indemnitee rights of any person; (y) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person; and (z) the Indemnified Person shall have the right no liability with respect to participate in the defense thereof and to employ counsel, at any compromise or settlement of such third-Party claims effected without its own expense, separate from the counsel employed by the Indemnitorconsent. If notice is given to an Indemnifying Person of the Indemnitor assumes assertion of any third-Party claim and the Indemnifying Person does not, within ten (10) days after the Indemnified Person’s notice is given, give notice to the Indemnified Person of its election to assume the defense of any Third such third-Party Claimclaim, the Indemnitor Indemnifying Person will promptly supply to the Indemnitee copies of all correspondence and documents relating to be bound by any determination made in such third-Party claim or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to any compromise or in connection with such Third Party Claim, as may be reasonably requested settlement effected by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentIndemnified Person.

Assumption of Defense. If a Third (a) The Indemnifying Party Claim is made against an Indemnitee, the Indemnitor will be entitled, within one hundred twenty shall have thirty (12030) days after receipt of written notice from the Indemnitee of Claim Notice to elect, at its option, to assume and control the commencement or assertion of defense of, at its own expense and by its own counsel, any such Third Third-Party Claim and shall be entitled to assert any and all defenses available to the Indemnified Person to the fullest extent permitted by applicable law; provided that, prior to the Indemnifying Party assuming and controlling such defense, it shall first confirm to the Indemnified Person in writing that, assuming the facts then presented to the Indemnifying Party by the Indemnified Person being true, the Indemnifying Party shall indemnify the Indemnified Person for any such Losses to the extent resulting from, or arising out of, such Third-Party Claim; provided, further, that, if the Indemnifying Party assumes such defense and, in the course of defending such Third-Party Claim, to assume (x) the defense thereof (Indemnifying Party discovers that the facts presented at the expense time the Indemnifying Party acknowledged its indemnification obligation in respect of such Third-Party Claim were not true and (y) such untruth provides a reasonable basis for asserting that the IndemnitorIndemnifying Party does not have an indemnification obligation in respect of such Third-Party Claim, then (A) with counsel selected the Indemnifying Party shall not be bound by such acknowledgment, (B) the Indemnitor Indemnifying Party shall promptly thereafter provide the Indemnified Person written notice of its assertion that it does not have an indemnification obligation in respect of such Third-Party Claim and reasonably satisfactory to (C) the Indemnitee, for so long as Indemnified Person shall have the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect right to assume the defense of a Third such Third-Party Claim (it being agreed that all costs and expenses in conducting such defense prior to the date that the Indemnified Person shall have the ability to assume the defense, including costs and expenses of counsel, shall be the responsibility of the Indemnifying Party and not the Indemnified Person). If the Indemnifying Party shall undertake to compromise or defend any such Third-Party Claim, it shall promptly notify the Indemnitor will not be liable Indemnified Person of its intention to do so, and the Indemnitee Indemnified Person agrees to, and to cause its Affiliates to, cooperate with the Indemnifying Party and its counsel in the compromise of, or defense against, any such Third-Party Claim, including by furnishing nonprivileged books and records, personnel and witnesses, as appropriate for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofof such Third-Party Claim; provided, however, that if the Indemnifying Party shall not settle, compromise or discharge, or admit any liability with respect to, any such Third-Party Claim without the prior written consent of the Indemnified Person (which consent will not be unreasonably withheld or delayed) unless the relief consists solely of money damages and includes a provision whereby the plaintiff or claimant in the opinion of counselmatter releases the Buyer Indemnified Persons or Seller Indemnified Persons, such counsel and opinion being satisfactory as applicable, from all liability with respect thereto. Notwithstanding an election to Indemnitor and its counsel, a conflict of interest exists between assume the Indemnitor and an Indemnitee in respect defense of such claimaction or proceeding, such Indemnitee the Indemnified Person shall have the right to employ separate counsel (which and to participate in the defense of such action or proceeding, and the Indemnifying Party shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, bear the reasonable fees fees, costs and expenses of such separate counsel if (i) the Indemnified Person shall be paid have determined in good faith after consultation with counsel that an actual or potential conflict of interest makes representation by such Indemnitor; provided further, that the Indemnitor same counsel or the counsel selected by the Indemnifying Party inappropriate or (ii) the Indemnifying Party shall only be responsible for have authorized in writing the reasonable fees and expenses of one (1) Indemnified Person to employ separate counsel for such Indemniteeat the Indemnifying Party’s expense. If In any event, the Indemnitor assumes Indemnified Person and Indemnifying Party and their counsel shall cooperate in the defense of any Third Third-Party ClaimClaim subject to this Article 9 and keep such Persons informed of all developments relating to any such Third-Party Claims, and provide copies of all relevant correspondence and documentation relating thereto. All costs and expenses incurred in connection with the Indemnified Person’s cooperation shall be borne by the Indemnifying Party. In any event, the Indemnitee Indemnified Person shall have the right at its own expense to participate in the defense thereof of such asserted liability. If the Indemnifying Party receiving such notice of Third-Party Claim does not elect to defend, or does not defend, such Third-Party Claim, the Indemnified Person shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnifying Party’s expense, to defend such Third-Party Claim; provided, however, that (i) the Indemnified Person’s defense of or participation in the defense of any such Third-Party Claim shall not in any way diminish or lessen the obligations of the Indemnifying Party under this Article 9; and (ii) the Indemnified Person shall not settle, compromise or discharge, or admit any liability with respect to, any such Third-Party Claim without the written consent of the Indemnifying Party (which consent will not be unreasonably withheld or delayed). Notwithstanding anything to employ counselthe contrary in this Agreement, in the case of a Third-Party Claim related to both (x) Taxes for which the Sellers have an indemnification obligation pursuant to Section 6.10(a) and (y) Taxes for which Buyer is responsible (a Joint Tax Claim) (and the portion of such Joint Tax Claim related to Taxes described in clause (x) is not separable from the portion of such Joint Tax Claim related to Taxes described in clause (y)), the Controlling Party shall have the right and obligation to conduct, at its own expense, separate from such Joint Tax Claim; provided, however, that (A) the counsel employed by Controlling Party shall provide the Indemnitor. If the Indemnitor assumes the defense Non-Controlling Party with a timely and reasonably detailed account of any Third Party each stage of such Joint Tax Claim, (B) the Indemnitor will promptly supply to Controlling Party shall consult with the Indemnitee copies of all correspondence and documents relating to or Non-Controlling Party before taking any significant action in connection with such Third Joint Tax Claim, (C) the Controlling Party Claim shall consult with the Non-Controlling Party and keep offer the Indemnitee informed of developments relating Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Third Party Joint Tax Claim, (D) the Controlling Party shall defend such Joint Tax Claim diligently and in good faith as may be reasonably requested by if it were the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party only party in interest in connection with such Joint Tax Claim, all Indemnitees (E) the Non-Controlling Party shall reasonably cooperate be entitled to participate in such Joint Tax Claim and attend any meetings or conferences with the Indemnitor in relevant Taxing Authority, and (F) the defense thereof (Controlling Party shall not settle, compromise or abandon any such cooperation to be at Joint Tax Claim without obtaining the expense, including reasonable legal fees and expenses, prior written consent of the IndemnitorNon-Controlling Party, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of this Agreement, Controlling Party shall mean the Sellers, if the Sellers and their Affiliates are reasonably expected to bear the greater Tax liability in connection with such Joint Tax Claim, or the Buyer, if Buyer and its Affiliates are reasonably expected to bear the greater Tax liability in connection with such Joint Tax Claim (taking into account any potential liability in subsequent Tax periods). If the Indemnitor does not elect to assume control ; and Non-Controlling Party shall mean whichever of the defense of any Third Party Claim, within Sellers or the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense Buyer is not being or ceases the Controlling Party with respect to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Joint Tax Claim, exercising reasonable business judgment.

Assumption of Defense. If a The Indemnifying Party shall be entitled to participate in the defense of any Third Party Claim that is made against an Indemniteethe subject of a notice given by the Indemnified Person pursuant to Section 9.2.6(a). In addition, upon written notice to the Indemnified Person, the Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from Indemnifying Party shall have the Indemnitee of right to defend the commencement or assertion of any such Indemnified Person against the Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) Claim with counsel selected by the Indemnitor and of its choice reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofIndemnified Person; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep involves any material customer or material supplier of any of the Indemnitee informed of developments relating to or in connection with such Third Acquired Companies, the Indemnifying Party Claim, as may shall not be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses entitled to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to or assume control of the defense of such Third Party Claim and may not consent to the entry of any judgment or enter into any compromise or settlement with respect to, such Third Party Claim unless such Indemnifying Party agrees to be (or in the case of an indemnity claim brought under Section 9.2.1 or Section 9.2.2, the Holders’ Representative agrees on behalf of the Holders that the Holders will be) fully responsible for all Losses arising from or relating to such Third Party Claim, within subject to the one hundred twenty (120) day period set forth above, or if other limitations and procedures in this Article 9. In such good faith and diligent defense is not being or ceases to be conducted by the Indemnitorevent, the Indemnitee shall have the right, Indemnified Person may retain separate co-counsel at the its sole cost and expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake and participate in the defense of the Third Party Claim for the account (though not of the Indemnitor (with counsel selected by the Indemnitee)record, and to compromise or settle such shall not communicate with the Person asserting the Third Party Claim, exercising or such Person’s Representatives, without the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed)); provided, however, that if (i) there exists, or would reasonably be likely to exist, a conflict of interest that would make it inappropriate in the commercially reasonable business judgment of the Indemnified Person for the same counsel to represent both the Indemnified Person and the Indemnifying Party, or (ii) the Indemnified Person elects to pursue one or more defenses or counterclaims available to it that are inconsistent with one or more of those that are being pursued by the Indemnifying Party in respect of such Third Party Claim or any litigation relating thereto, then the Indemnified Person may participate in the defense of (but not compromise or settle) such Third Party Claim and may retain its own counsel in each jurisdiction for which the Indemnified Person reasonably determines counsel is required, at the expense of the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Person (such consent not to be unreasonably withheld, conditioned or delayed) unless such judgment, compromise or settlement (i) provides for the payment of money as sole relief for the claimant and (ii) subject to the making of such payment, results in the full and general release of such Indemnified Person from all liabilities arising from or relating to the Third Party Claim. For the avoidance of doubt, any amounts paid or to be paid by an Indemnifying Party in respect of its attorneys’ fees and other experts and professionals expenses incurred in connection with its defense, settlement or other resolution of any Third Party Claims, shall not be deemed to be Losses for purposes of this Article 9, and, in the case of any indemnification claim under Section 9.2.1, shall in no event be paid from the Indemnity Escrow Funds.

Assumption of Defense. If a Third Party Claim is made An indemnified party shall promptly give notice to each indemnifying party after obtaining Knowledge of any matter as to which recovery may be sought against an Indemniteesuch indemnifying party because of the indemnity set forth above, the Indemnitor will be entitledand, within one hundred twenty (120) days after receipt of written notice if such indemnity shall arise from the Indemnitee claim of the commencement or assertion of any a third party, shall permit such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect indemnifying party to assume the defense of a Third Party Claimany such claim or any litigation resulting from such claim; PROVIDED, HOWEVER, that failure promptly to give any such notice shall not affect the Indemnitor will not be liable indemnification provided under this Article XII, except to the Indemnitee for extent such indemnifying party shall have been prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any legal such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or other expenses subsequently incurred by if the Indemnitee claim (i) is reasonably likely to result in connection imprisonment of the indemnified party, (ii) is reasonably likely to result in a criminal penalty or fine against the indemnified party the consequences of which would be reasonably likely to have a material adverse effect on the indemnified party unrelated to the size of such penalty or fine, or (iii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair TKOG's or Canadian Buyer's right or ability to operate the Company. If an indemnifying party assumes the defense of such third party claim, such indemnifying party shall agree prior thereto in writing that it is liable under this Article XII to indemnify the indemnified party in accordance with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee terms contained herein in respect of such claim, shall conduct such Indemnitee defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the indemnified party and shall, in his or her or its sole discretion, have the right to employ separate decide all matters of procedure, strategy, substance and settlement relating to such proceeding; PROVIDED, HOWEVER, that any counsel (which chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the Indemnitor) to represent indemnified party. The indemnified party may participate in such Indemnitee with respect to the matters as to which a conflict of interest exists proceeding and in that event, the reasonable fees retain separate co-counsel at its sole cost and expenses of such separate counsel shall be paid by such Indemnitor; provided further, expense (except that the Indemnitor indemnifying party shall only be responsible for the reasonable fees and expenses of one (1) separate co-counsel for such Indemnitee. If the Indemnitor assumes indemnified party to the defense of any Third Party Claim, extent the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at indemnified party is advised by its own expense, separate from counsel that either (x) the counsel employed by the Indemnitor. If the Indemnitor assumes the defense indemnifying party has selected has a conflict of any Third Party Claim, the Indemnitor will promptly supply interest or (y) there are legal defenses available to the Indemnitee copies of all correspondence and documents relating indemnified party that are different from or additional to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing those available to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemniteeindemnifying party), and the indemnifying party will not without the written consent of the indemnified party consent to compromise the entry of any judgment or settle enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the indemnified party of its election to defend any such Third Party Claim, exercising reasonable business judgmentclaim or action by a third party within thirty (30) days after notice thereof shall have been given to such indemnifying party by the indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or action.

Assumption of Defense. If a Third Party Claim is made An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against an Indemniteesuch indemnifying party because of the indemnity set forth above, the Indemnitor will be entitledand, within one hundred twenty (120) days after receipt of written notice if such indemnity shall arise from the Indemnitee claim of the commencement or assertion of any a third party, shall permit such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect indemnifying party to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal such claim or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofany proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of, or criminal charges against, the opinion indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party’s ability to exercise its rights under this Agreement, or impair Madden’s right or ability to operate any of counselthe Companies, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If an indemnifying party assumes the defense of such third party claim, such counsel and opinion being satisfactory indemnifying party shall agree prior thereto, in writing, that it is liable under this Article XII to Indemnitor and its counsel, a conflict of interest exists between indemnify the Indemnitor and an Indemnitee indemnified party in accordance with the terms contained herein in respect of such claim, shall conduct such Indemnitee defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the indemnified party and shall, subject to the provisions of this Section 12.5, have the right to employ separate decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel (which chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the Indemnitor) indemnified party, such consent not to represent such Indemnitee be unreasonably withheld or delayed, and the indemnifying party will not without the written consent of the indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matters as matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto or which may reasonably be expected to which have an adverse effect on the indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel third party within thirty (30) days after notice thereof shall be paid deemed a waiver by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses indemnifying party of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the its right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to defend such claim or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentaction.

Assumption of Defense. If an Indemnified Party gives notice to an Indemnifying Party pursuant to Section 6.6(a) of the assertion of a Third Party Claim is made against an Indemniteeclaim, then such Indemnifying Party shall be entitled (i) to participate in the Indemnitor will be entitled, within one hundred twenty (120) days after receipt defense of written notice from the Indemnitee of the commencement or assertion of any such Third Party Claim, claim or (ii) to assume the defense thereof (at the expense of the Indemnitor) such Third Party claim with counsel selected by the Indemnitor and reasonably satisfactory to such Indemnified Party unless: (A) in the Indemniteecase of clause (ii), for such Indemnifying Party is also a person against whom the Third Party claim is made and such Indemnified Party determines in good faith that joint representation would be inappropriate because such Indemnifying Party has been reasonably advised by counsel that (1) one or more legal defense are available to it that are different from or additional to those available to such Indemnifying Party or (2) representation by such Indemnifying Party is inappropriate in light of an actual or potential conflict of interest between them; or (B) such Indemnifying Party fails to provide reasonable assurance to such Indemnified Party of its financial capacity to defend, and provide indemnification hereunder with respect to, such Third Party claim. After notice from such Indemnifying Party to such Indemnified Party of its election to assume the defense of such Third Party claim, such Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to such Indemnified Party under this Article VI for any fees of other counsel or any other expenses with respect to the Indemnitor is conducting a good faith and diligent defensedefense of such Third Party claim, in each case subsequently incurred by such Indemnified Party in connection with the defense of such Third Party claim, other than reasonable costs of investigation. Should the Indemnitor so elect to assume If an Indemnifying Party assumes the defense of a Third Party Claimclaim, the Indemnitor will not be liable to the Indemnitee for any legal no compromise or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect settlement of such claimThird Party claim may be effected by such Indemnifying Party without the applicable Indemnified Party’s consent, unless (x) there is no finding or admission of any violation of a Legal Requirement or the rights of any person; (y) the sole relief provided is monetary damages that are paid in full by such Indemnitee Indemnifying Party; and (z) such Indemnified Party shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee no liability with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses any compromise or settlement of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such IndemniteeThird Party claims effected without its consent. If notice is given to an Indemnifying Party of the Indemnitor assumes the defense assertion of any Third Party Claimclaim and the applicable Indemnifying Party does not, the Indemnitee shall have the right within 20 Business Days after receipt of such notice from such Indemnified Party, give notice to participate in the defense thereof and such Indemnified Party of its election to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes assume the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or claim, then such Indemnifying Party will be bound by any determination made in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of claim or any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle settlement effected by such Third Party Claim, exercising reasonable business judgmentIndemnified Party.

Assumption of Defense. If a Third Party Claim is made An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against an Indemniteesuch indemnifying party because of the indemnity set forth above, the Indemnitor will be entitledand, within one hundred twenty (120) days after receipt of written notice if such indemnity shall arise from the Indemnitee claim of the commencement or assertion of any a third party, shall permit such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect indemnifying party to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal such claim or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofany proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the opinion indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party’s ability to exercise its rights under this Agreement, or impair Madden’s right or ability to operate the Company, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of counselboth parties by the same counsel would create a conflict. If an indemnifying party assumes the defense of such third party claim, such counsel and opinion being satisfactory indemnifying party shall agree prior thereto, in writing, that it is liable under this Article XII to Indemnitor and its counsel, a conflict of interest exists between indemnify the Indemnitor and an Indemnitee indemnified party in accordance with the terms contained herein in respect of such claim, shall conduct such Indemnitee defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the indemnified party and shall, subject to the provisions of this Section 12.5, have the right to employ separate decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel (which chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the Indemnitor) indemnified party, such consent not to represent such Indemnitee be unreasonably withheld or delayed, and the indemnifying party will not without the written consent of the indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matters as matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto or which may reasonably be expected to which have an adverse effect on the indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel third party within thirty (30) days after notice thereof shall be paid deemed a waiver by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses indemnifying party of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the its right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to defend such claim or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentaction.

Assumption of Defense. If any action or claim shall be brought or asserted by a Third Party Claim is made third party against an Indemniteeindemnified party in respect of which indemnity may be sought from an indemnifying party, the Indemnitor will be entitledindemnified party shall promptly notify the indemnifying party in writing (but the omission to notify the indemnifying party shall not release such person from any liability which it may have to the indemnified party, within one hundred twenty (120) days after receipt of written notice from except to the Indemnitee extent that such failure materially prejudices the rights of the commencement or assertion of any such Third Party Claim, to indemnifying party) and the indemnifying party shall assume the defense thereof (at the expense legal counsel of the Indemnitor) with counsel selected indemnifying party must be reasonably acceptable to the indemnified party), and the payment by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defenseindemnifying party of all reasonable expenses. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee The indemnified party shall have the right to employ separate counsel (which shall be reasonably satisfactory in any such action and to participate in the Indemnitor) to represent such Indemnitee with respect to defense thereof, but the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be at the expense of the indemnified party, unless (a) the employment thereof has been specifically authorized in writing by the indemnifying party; (b) the indemnifying party has failed to assume the defense and employ counsel; or (c) the named parties to such action include both the indemnifying party and the indemnified party, and the indemnified party shall have been advised in good faith by its counsel that the representation of the indemnifying party and the indemnified party by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case the fees of counsel for the indemnified party shall be paid by the indemnifying party. In such Indemnitor; provided furtherevents, that the Indemnitor indemnifying party shall only not have the right to assume the defense of such action on behalf of the indemnified party. The indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be responsible liable for the reasonable fees and expenses of more than one (1) separate counsel firm of attorneys at any time for such Indemniteethe indemnified party, which firm shall be designated by the indemnified party in writing. If the Indemnitor assumes the defense The indemnifying party shall not be liable for any settlement of any Third Party Claimsuch action effected without its written consent, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of but if any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate action is settled with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth aboveindemnifying party's written consent, or if there shall be a final judgment for the plaintiff in any such good faith and diligent defense is not being or ceases to be conducted by the Indemnitoraction, the Indemnitee indemnifying party shall have indemnify and hold harmless the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), indemnified party from and to compromise against any Damages arising from such settlement or settle such Third Party Claim, exercising reasonable business judgment.

Assumption of Defense. If a Third Party Claim is made An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against an Indemniteesuch indemnifying party because of the indemnity set forth above, the Indemnitor will be entitledand, within one hundred twenty (120) days after receipt of written notice if such indemnity shall arise from the Indemnitee claim of the commencement or assertion of any a third party, shall permit such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect indemnifying party to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal such claim or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofany litigation resulting from such claim; provided, however, that failure promptly to give any such notice shall not affect the indemnification provided under this Article XI except to the extent such indemnifying party shall have been prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the opinion indemnified party, (ii) is reasonably likely to result in a criminal penalty or fine against the indemnified party the consequences of counselwhich would be reasonably likely to have a material adverse effect on the indemnified party unrelated to the size of such penalty or fine, or (iii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair 3-D's or Buyer's right or ability to operate Company. If an indemnifying party assumes the defense of such third party claim, such counsel and opinion being satisfactory indemnifying party shall agree prior thereto in writing that it is liable under this Article XI to Indemnitor and its counsel, a conflict of interest exists between indemnify the Indemnitor and an Indemnitee indemnified party in accordance with the terms contained herein in respect of such claim, shall conduct such Indemnitee defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the indemnified party and shall, in his or her or its sole discretion, have the right to employ separate decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel (which chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the Indemnitor) indemnified party. The indemnified party may participate in such proceeding and retain separate co- counsel at its sole cost and expense, and the indemnifying party will not without the written consent of the indemnified party consent to represent such Indemnitee the entry of any judgment or enter into any settlement with respect to the matters as matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to which notify the indemnified party of its election to defend any such claim or action by a conflict of interest exists and in that event, third party within thirty (30) days after notice thereof shall have been given to such indemnifying party by the reasonable fees and expenses of such separate counsel indemnified party shall be paid deemed a waiver by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses indemnifying party of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the its right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to defend such claim or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentaction.

Assumption of Defense. If a Third Party Claim is made An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against an Indemniteesuch indemnifying party because of the indemnity set forth above, the Indemnitor will be entitledand, within one hundred twenty (120) days after receipt of written notice if such indemnity shall arise from the Indemnitee claim of the commencement or assertion of any a third party, shall permit such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect indemnifying party to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal such claim or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofany proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the opinion indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party’s ability to exercise its rights under this Agreement, or impair Madden’s right or ability to operate the Company, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of counselboth parties by the same counsel would create a conflict. If an indemnifying party assumes the defense of such third party claim, such counsel and opinion being satisfactory indemnifying party shall agree prior thereto, in writing, that it is liable under this Article XII to Indemnitor and its counsel, a conflict of interest exists between indemnify the Indemnitor and an Indemnitee indemnified party in accordance with the terms contained herein in respect of such claim, shall conduct such Indemnitee defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the indemnified party and shall, subject to the provisions of this Section 12.4, have the right to employ separate decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel (which chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the Indemnitor) indemnified party, and the indemnifying party will not without the written consent of the indemnified party consent to represent such Indemnitee the entry of any judgment or enter into any settlement with respect to the matters as to matter which does not include a conflict of interest exists and in that event, provision whereby the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that plaintiff or the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate claimant in the defense thereof and to employ counselmatter releases the indemnified party from all liability with respect thereto, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as which may be reasonably requested expected to have an adverse effect on the indemnified party and does not provide that the indemnified party is without fault, or, with respect to an indemnification relating to Taxes, if such settlement could affect the Taxes of the Company or the Madden Indemnified Parties for a period or portion thereof beginning on or after the Closing Date. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses indemnified party of its election to defend any such claim or proceeding by a Third Party Claim, all Indemnitees third party within thirty (30) days after notice thereof shall reasonably cooperate with the Indemnitor in the defense thereof (be deemed a waiver by such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor indemnifying party of its intent right to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise defend such claim or settle such Third Party Claim, exercising reasonable business judgmentaction.

Assumption of Defense. If a Third The Indemnifying Party Claim is made against an Indemnitee, the Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnitee of the commencement or assertion of any such Third Party Claim, entitled to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee participate in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party ClaimClaim that is the subject of a notice given by the Indemnified Party pursuant to Section 9.4.1. In addition, the Indemnitee shall Indemnifying Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes control the defense of the Indemnified Party against the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long as: (a) the Indemnifying Party gives written notice to the Indemnified Party within thirty (30) days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any and all Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, ; (b) the Indemnitor will promptly supply Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnitee copies of all correspondence and documents relating Indemnified Party that the Indemnifying Party will have adequate financial resources to or in connection with such defend against the Third Party Claim and keep fulfill its indemnification obligations hereunder; (c) the Indemnitee informed of developments relating to Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party; (d) the Indemnified Party has not been advised by counsel that a conflict exists between the Indemnified Party and the Indemnifying Party in connection with such the defense of the Third Party Claim, as may be reasonably requested by ; (e) the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor Claim does not elect relate to assume control of the defense of or otherwise arise in connection with Taxes or any Third Party Claimcriminal or regulatory enforcement Action; (f) settlement of, within the one hundred twenty (120) day period set forth abovean adverse judgment with respect to, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense Indemnifying Party’s conduct of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for is not, in the account good faith judgment of the Indemnitor Indemnified Party, likely to be materially adverse to the Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business); and (g) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. The Indemnified Party may retain separate co-counsel selected by at its sole cost and expense and participate in the Indemnitee), and to compromise or settle such defense of the Third Party Claim; provided, exercising however, that the Indemnifying Party will pay the reasonable business judgmentfees and expenses of separate co-counsel retained by the Indemnified Party that are incurred prior to Indemnifying Party’s assumption of control of the defense of the Third Party Claim.

Assumption of Defense. If a Third Party Claim is made against an Indemnitee, the Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnitee of the commencement or assertion of any such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee Except with respect to the Tax matters as (which for all purposes of this Section 11.06 are subject to which a conflict of interest exists and in that eventSection 6.05), the reasonable fees Petros Pension Plan Litigation (which for all purposes of this Section 11.06 is subject to Section 11.13) and expenses any Cubatão Litigation relating primarily to the Cubatão Business (which for all purposes of such separate counsel shall be paid by such Indemnitor; provided furtherthis Section 11.06 is subject to Section 11.14), that the Indemnitor shall only be responsible for the reasonable fees and expenses of one Indemnifying Person may, at its own expense, (1i) separate counsel for such Indemnitee. If the Indemnitor assumes participate in the defense of any Third Party ClaimClaim or (ii) by giving written notice to the Indemnified Person as promptly as reasonably practicable after receipt of the Claim Notice (and in any event within fifteen (15) Business Days of receipt of such Claim Notice), assume the defense thereof if, in the case of this clause (ii), (A) the Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person; (B) the Indemnifying Person shall thereafter consult with and update the Indemnified Person and make all pertinent information under its control related to such Third Party Claim available to the Indemnified Person on a reasonably prompt basis; and (C) the Third Party Claim involves only monetary damages and is not a criminal or quasi-criminal Action and does not seek any material injunction or other material equitable relief against any Indemnified Person. Except with respect to the Petros Pension Plan Litigation which is subject to Section 11.13, if the Indemnifying Person assumes such defense, the Indemnitee Indemnified Person shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If Indemnifying Person (other than any fees and expenses of such separate counsel that are incurred between the Indemnitor date the Indemnified Person provides the Indemnifying Person with the Claim Notice and the date the Indemnifying Person effectively assumes control of such defense, which fees and expenses, shall, notwithstanding the foregoing but subject to the limitations set forth in this Article XI, be borne by the Indemnifying Person to the extent the underlying matter is determined to be subject to indemnification pursuant to this Article XI); provided, however, that the Indemnified Person may hire separate counsel, and the reasonable fees and expenses of such counsel shall be borne by the Indemnifying Person if (x) the Indemnifying Person fails to actively and diligently conduct the defense of any such Third Party Claim, the Indemnitor will promptly supply Indemnified Person has notified the Indemnifying Person of such failure and the Indemnifying Person does not cure such failure within twenty (20) Business Days following receipt of such notice, (y) upon reasonable advice of counsel to the Indemnitee copies of all correspondence Indemnified Person that a conflict or potential conflict exists between the Indemnified Person and documents relating the Indemnifying Person that would make such separate representation advisable or (z) one or more defenses are available to the Indemnified Person that are not available to the Indemnifying Person. Whether or in connection with such Third Party Claim and keep not the Indemnitee informed of developments relating Indemnifying Person chooses to defend or in connection with prosecute any such Third Party Claim, as may be reasonably requested by all of the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees Parties shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentprosecution thereof.

Assumption of Defense. If the Indemnifying Person shall ---------------------- acknowledge in a Third Party Claim writing to the Indemnified Person that the Indemnified Person is made against an Indemniteeentitled to indemnification pursuant to Section 13.2 or 13.3, the Indemnitor will be entitledas applicable, within one hundred twenty (120) days after receipt for all Losses arising out of written notice from the Indemnitee of the commencement or assertion of any such Third Party Claim, then the Indemnifying Person shall have the right to assume the defense thereof (of any Third Party Claim at the its own expense of the Indemnitor) with and by its own counsel, which counsel selected by the Indemnitor and shall be reasonably satisfactory to the IndemniteeIndemnified Person; provided, however, that the Indemnifying Person shall not have the right to assume the defense of any Third Party Claim, notwithstanding the giving of such written acknowledgment, if (i) the Indemnified Person shall have been advised by counsel that there are one or more legal or equitable defenses available to the Indemnified Person which are different from or in addition to those available to the Indemnifying Person, and, in the reasonable opinion of the Indemnified Person, counsel for so long as the Indemnitor is conducting Indemnifying Person could not adequately represent the interests of the Indemnified Person because such interests could be in conflict with those of the Indemnifying Person, (ii) such action or proceeding involves, or could have a good faith and diligent defensematerial effect on, any material matter beyond the scope of the indemnification obligation of the Indemnifying Person or (iii) the Indemnifying Person shall not have assumed the defense of the Third Party Claim in a timely fashion. Should Notwithstanding the Indemnitor so foregoing, if with respect to any claim related to Taxes, the Indemnified Person reasonably determines that the contest of such claim cannot be reasonably separated from, or may significantly impact other Taxes, Tax Returns or claims affecting the Indemnified Person, such Indemnified Person may elect to assume control the contest of such claim, subject to the provisions of Section 7.5(d). Subject to the next sentence, if the Indemnifying Person assumes the defense of a Third Party Claim, the Indemnitor will Indemnifying Person shall not be liable to the Indemnitee responsible for any legal or other expenses defense costs subsequently incurred by the Indemnitee Indemnified Person in connection with the defense thereof; provided. If the Indemnifying Person assumes such defense, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee Indemnified Person shall have the right to employ separate counsel (which shall be reasonably satisfactory to but not the Indemnitorobligation) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If Indemnifying Person; provided, however, that in the Indemnitor assumes event (i) the Indemnified Party determines that a conflict of interest exists; or (ii) the Indemnifying Party fails to actively and diligently conduct the defense of such Third Party Claim, then in either such event, the Indemnified Party, after twenty (20) days prior notice to the Indemnifying Party, may hire separate counsel, at the Indemnifying Party's expense. Whether or not the Indemnifying Person chooses to defend or prosecute any such Third Party Claim, the Indemnitor will promptly supply Buyer and the Seller agree to reasonably cooperate in the Indemnitee copies of all correspondence and documents relating to defense or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status prosecution thereof). If the Indemnitor chooses Indemnifying Person does not exercise its right to defend assume the defense of a Third Party Claim, all Indemnitees the Indemnifying Person shall reasonably cooperate nevertheless be entitled to participate in such defense with the Indemnitor in the defense thereof (such cooperation to be its own counsel and at the its own expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgment.

Assumption of Defense. If In the event of a Third Party Claim, Buyer (if the Buyer Indemnifying Parties are the Indemnifying Party) or the Seller (if the Seller Parties are the Indemnifying Party), by written notice delivered to the Seller (on behalf of the Seller Indemnified Parties if such Persons are the Indemnified Party) or Buyer (on behalf of the Buyer Indemnified Parties if such Persons are the Indemnified Party), within fifteen (15) days after receiving Buyer’s or the Seller’s (as applicable) notice pursuant to Section 8.5(a), may elect to assume the defense of the Third Party Claim; provided, that upon such election to the assume the defense of the Third Party Claim (i) the Indemnifying Party must notify the Indemnified Party that the Indemnifying Party will indemnify the Indemnified Party from and 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 Party Claim, (ii) the Indemnifying Party must provide the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim must involve only money damages and does not seek an injunction or other equitable relief, (iv) the settlement of, or an adverse judgment with respect to, the Third Party Claim must not be, in the reasonable judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Party, (v) the Indemnifying Party must conduct the defense of the Third Party Claim actively and diligently, (vi) such Third Party Claim must not involve any criminal liability or any admission of criminal wrongdoing, or any claim by a Governmental Authority, customer, supplier, vendor, distributor, licensor, employee, or contractor of the Indemnified Party, and (vii) such Third Party Claim does not involve or relate to any Company Intellectual Property or Intellectual Property of another Person (the conditions set forth in clauses (i) through (vii) are, collectively, the “Litigation Conditions”). Additionally, the Indemnifying Party will lose its right to contest, defend, litigate and settle a Third Party Claim is made against an Indemniteeif it (x) fails to accept a tender of the defense of the Third Party Claim in accordance with Section 8.5(a) or (y) abandons or fails to diligently pursue the defense of a Third Party Claim in the reasonable judgment of the Indemnified Party. In such event, including if any of the Litigation Conditions exist, the Indemnitor Indemnified Party will be entitledhave the right to conduct and control, within one hundred twenty (120) days after receipt through counsel of written notice from its choosing and at the Indemnitee expense of the commencement Indemnifying Party, the defense, compromise or assertion settlement of any such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory subject to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee applicable limitations set forth in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereofSection 8.5(a). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof Buyer (such cooperation to be at the expense, including reasonable legal fees and expenses, on behalf of the Indemnitor). If Buyer Indemnifying Parties if such Persons are the Indemnitor does not elect to assume control Indemnifying Party) or the Seller (on behalf of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or Seller Parties if such good faith and diligent defense is not being or ceases to be conducted by Persons are the IndemnitorIndemnifying Party) so assumes any such defense, the Indemnitee shall have the right, at the expense Buyer (on behalf of the IndemnitorBuyer Indemnifying Parties) or the Seller (on behalf of the Seller Parties), after three (3) Business Days notice to the Indemnitor of its intent to do soas applicable, to undertake shall conduct the defense of the Third Party Claim for the account actively and diligently. Buyer (on behalf of the Indemnitor Buyer Indemnifying Parties if such Persons are the Indemnifying Party) or the Seller (with counsel selected by on behalf of the IndemniteeSeller Parties if such Persons are the Indemnifying Party), and to as applicable, shall not compromise or settle such Third Party ClaimClaim or consent to entry of any judgment in respect thereof without the prior written consent of the Seller (on behalf of the Seller Indemnified Parties if such Persons are the Indemnified Party) or Buyer (on behalf of the Buyer Indemnified Parties if such Persons are the Indemnified Party), exercising reasonable business judgmentwhich consent shall not be unreasonably withheld or delayed, unless the Indemnifying Party refuses to acknowledge any obligation to indemnify such Indemnified Party hereunder (in which case the consent of the Indemnifying Party shall not be required).

Assumption of Defense. If a Third Party Claim is made any action or claim shall be brought or --------------------- asserted against an IndemniteeIndemnified Party in respect of which indemnity may be sought from an Indemnifying Party, the Indemnitor will be entitledIndemnified Party shall promptly notify the Indemnifying Party in writing (but the omission to notify the Indemnifying Party shall not release such person from any liability which it may have to the Indemnified Party, within one hundred twenty (120) days after receipt of written notice from except to the Indemnitee extent that such failure materially prejudices the rights of the commencement or assertion of any such Third Indemnifying Party) and the Indemnifying Party Claim, to shall assume the defense thereof (at and the expense payment of the Indemnitor) with all reasonable third party expenses arising therefrom. The legal counsel selected by the Indemnitor and reasonably satisfactory Indemnifying Party shall be subject to the Indemniteeconsent of the Indemnified Party, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will which consent shall not be liable to the Indemnitee for any legal unreasonably withheld or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee delayed. The Indemnified Party shall have the right to employ separate counsel (which shall be reasonably satisfactory in any such action and to participate in the Indemnitor) to represent such Indemnitee with respect to defense thereof, but the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be at the expense of the Indemnified Party, unless (a) the employment thereof has been specifically authorized in writing by the Indemnifying Party; (b) the Indemnifying Party has failed to assume the defense and employ counsel; or (c) the named parties to such action include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party shall have been advised in good faith by its counsel that the representation of the Indemnifying Party and the Indemnified Party by the same counsel may be inappropriate due to actual or potential differing interests between them, in which case the fees of counsel for the Indemnified Party shall be paid by the Indemnifying Party. In such Indemnitor; provided furtherevents, that the Indemnitor Indemnifying Party shall only not have the right to assume the defense of such action on behalf of the Indemnified Party. The Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be responsible liable for the reasonable fees and expenses expense of more than one (1) separate counsel firm of attorneys at any time for such Indemniteethe Indemnified Party, which firm shall be designated by the Indemnified Party in writing. If the Indemnitor assumes the defense The Indemnifying Party shall not be liable for any settlement of any Third Party Claimsuch action effected without its written consent, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of but if any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate action is settled with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth aboveIndemnifying Party's written consent, or if there shall be a final judgment for the plaintiff in any such good faith and diligent defense is not being or ceases to be conducted by the Indemnitoraction, the Indemnitee Indemnifying Party shall have indemnify and hold harmless the right, at the expense Indemnified Party from and against any loss or liability by reason of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise such settlement or settle such Third Party Claim, exercising reasonable business judgment.

Assumption of Defense. If a Third Party Claim is made against an Indemnitee, The Indemnifying Person shall be entitled to participate in the Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnitee of the commencement or assertion defense of any such Third Party ClaimIndemnified Claim arising from any claim, action, suit or proceeding by a third party (a "THIRD PARTY CLAIM") and, if they so choose, to assume and control the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and Indemnifying Person, which counsel must be reasonably satisfactory to the IndemniteeIndemnified Persons; provided however, for so long as that the Indemnitor is conducting a good faith and diligent defenseIndemnifying Person shall acknowledge to the Indemnified Person its liability under this Agreement with respect to such Third Party Claim prior to assuming the defense thereof. Should the Indemnitor Indemnifying Person so elect to assume the defense of a Third Party Claim, the Indemnitor will Indemnifying Person shall not be liable to the Indemnitee Indemnified Persons for any legal or other expenses subsequently incurred by the Indemnitee Indemnified Persons in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory but shall continue to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and pay for any expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemniteeinvestigation or any Loss suffered. If the Indemnitor Indemnifying Person assumes the defense of any Third Party Claimsuch defense, the Indemnitee Indemnified Persons shall have the right to participate in (but not control) the defense thereof and to employ counsel, at its their own expense, separate from the counsel employed by the IndemnitorIndemnifying Person. If (a) the Indemnitor assumes Indemnifying Person shall not assume the defense of a Third Party Claim with counsel reasonably satisfactory to the Indemnified Persons within thirty (30) calendar days of the notice of the Third Party Claim, (b) legal counsel for the Indemnified Persons notifies the Indemnifying Person that there are or may be legal defenses available to the Indemnified Persons which are different from or additional to those available to the Indemnifying Person, which, if the Indemnified Persons and the Indemnifying Person were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice prosecution of the defenses available to such Indemnified Persons, or (c) the Indemnifying Person shall assume the defense of a Third Party Claim and fail to diligently prosecute such defense, then in each such case the Indemnified Person, by notice to the Indemnifying Person, may employ their own counsel and control the defense of the Third Party Claim and the Indemnifying Person shall be liable for the reasonable fees, charges and disbursements of one counsel employed by the Indemnified Persons, and the Indemnified Persons shall be promptly reimbursed for any such fees, charges and disbursements, as and when incurred. Whether the Indemnifying Person or the Indemnified Persons controls the defense of any Third Party Claim, the Indemnitor will promptly supply Parties hereto shall cooperate in the defense thereof. Such cooperation shall include the retention and provision to the Indemnitee copies counsel of all correspondence the controlling party of records and documents relating information which are reasonably relevant to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing and making employees available on a mutually convenient basis to the Indemnitee on reasonable request updates provide additional information and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense explanation of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentmaterial provided hereunder.

Assumption of Defense. If a Third Party Claim is made An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against an Indemniteesuch indemnifying party because of the indemnity set forth above, the Indemnitor will be entitledand, within one hundred twenty (120) days after receipt of written notice if such indemnity shall arise from the Indemnitee claim of the commencement or assertion of any a third party, shall permit such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect indemnifying party to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal such claim or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofany proceeding resulting from such claim; provided, however, that failure promptly to give any such notice shall not affect the indemnification provided under this Article X, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if the claim (a) is reasonably likely to result in imprisonment or another criminal penalty of the opinion indemnified party, (b) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or materially impair Buyer's right or ability to operate the Company or the Sub S Holding Corporation or the Company's, the Sub S Holding Corporation's or any Subsidiary's right to operate any material part of counselthe Business, or (c) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If an indemnifying party assumes the defense of such third-party claim, such counsel and opinion being satisfactory indemnifying party shall agree prior thereto, in writing, that it is liable under this Article X to Indemnitor and its counsel, a conflict of interest exists between indemnify the Indemnitor and an Indemnitee indemnified party in accordance with the terms contained herein in respect of such third-party claim, shall conduct such Indemnitee defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the indemnified party and shall, subject to the provisions of this Section 10.4, have the right to employ separate decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel (which chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the Indemnitor) indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense, and the indemnifying party will not without the written consent of the indemnified party consent to represent such Indemnitee the entry of any judgment or enter into any settlement with respect to the matters as matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to which notify the indemnified party of its election to defend any such claim or proceeding by a conflict of interest exists and in that event, third party within thirty (30) days after notice thereof shall have been given to such indemnifying party by the reasonable fees and expenses of such separate counsel indemnified party shall be paid deemed a waiver by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses indemnifying party of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the its right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to defend such claim or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentaction.

Assumption of Defense. If a Third Party Claim is made against an Indemnitee, the Indemnitor will be entitled, within one hundred twenty thirty (12030) days after receipt of written notice from the Indemnitee of the commencement or assertion of any such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty thirty (12030) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days business days’ written notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgment.

Assumption of Defense. If a Third The Indemnifying Party Claim is made against an Indemniteeshall have the right, upon written notice to the Indemnitor will be entitled, Indemnified Party within one hundred twenty ten (12010) days after Business Days of receipt of written notice a Claim Notice from the Indemnitee Indemnified Party in respect of the commencement or assertion of any such Third Party Claim, to assume the defense thereof (at the expense of the IndemnitorIndemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnitor Indemnifying Party and reasonably satisfactory to the IndemniteeIndemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for so long as equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnitor is conducting a good faith Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be liable for the fees and diligent defenseexpenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. Should If the Indemnitor so Indemnifying Party does not expressly elect to assume the defense of a such Third Party Claim within the time period and otherwise in accordance with the first sentence of this ‎Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee Indemnified Party shall have the right to employ separate counsel (which shall be reasonably satisfactory acceptable to the Indemnitor) Indemnifying Party and to represent such Indemnitee with respect to participate in the matters as to which a conflict of interest exists and in that eventdefense thereof, but the reasonable fees and expenses of such separate counsel shall be paid at the expense of the Indemnified Party unless the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnitor; provided furtherIndemnified Party may present such counsel with a conflict of interest, it being understood that the Indemnitor Indemnifying Party shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for control such Indemniteedefense. If the Indemnitor Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee Indemnified Party shall reasonably cooperate with the Indemnifying Party in such defense and retain and (upon the Indemnifying Party’s request) provide to the Indemnifying Party 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 required by the Indemnifying Party. Whether or not the Indemnifying Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes assumed the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees (i) the Indemnified Party shall reasonably cooperate not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnitor in Indemnifying Party’s prior written consent, (ii) the defense thereof Indemnifying Party shall not enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or judgment (such cooperation to A) involves a finding or admission of wrongdoing by the Acquiror or its Affiliates (including after the Closing, the Company) or (B) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be at the expense, including reasonable legal fees and expenses, of the Indemnitor)indemnified hereunder. If the Indemnitor does not elect to assume control of Indemnified Party shall have assumed the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the a Third Party Claim for in accordance with this Agreement, the account of Indemnified Party (if the Indemnitor (with counsel selected by Indemnified Party is the Indemnitee), and to Acquiror) shall not enter into any settlement or compromise or settle consent to the entry of any judgment with respect to such Third Party ClaimClaim without the express prior written consent of the Securityholder Representative (which consent will not be unreasonably withheld, exercising reasonable business judgmentconditioned or delayed).

Assumption of Defense. If a Third Party Claim is made An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against an Indemniteesuch indemnifying party because of the indemnity set forth above, the Indemnitor will be entitledand, within one hundred twenty (120) days after receipt of written notice if such indemnity shall arise from the Indemnitee claim of the commencement or assertion of any a third party, shall permit such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect indemnifying party to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal such claim or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofany proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure, but shall relieve the indemnifying party for any liability for legal fees and expenses incurred prior to the date such notice is given. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the opinion indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair Madden's right or ability to operate either of counselthe Companies, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If an indemnifying party assumes the defense of such third party claim, such counsel and opinion being satisfactory indemnifying party shall agree prior thereto, in writing, that it is liable under this Article XII to Indemnitor and its counsel, a conflict of interest exists between indemnify the Indemnitor and an Indemnitee indemnified party in accordance with the terms contained herein in respect of such claim, shall conduct such Indemnitee defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the indemnified party and shall, subject to the provisions of this Section 12.4, have the right to employ separate decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel (which chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the Indemnitor) indemnified party, and the indemnifying party will not without the written consent of the indemnified party consent to represent such Indemnitee the entry of any judgment or enter into any settlement with respect to the matters as matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto or which may reasonably be expected to which have an adverse effect on the indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel third party within thirty (30) days after notice thereof shall be paid deemed a waiver by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses indemnifying party of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitee shall have the its right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to defend such claim or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgmentaction.

Assumption of Defense. If a Third Party Claim is made against an IndemniteeThe Indemnifying Party, the Indemnitor at its sole cost and expense, will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnitee of the commencement or assertion of any such Third Party Claim, entitled to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee participate in connection with the defense thereof; provided, however, that if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by such Indemnitor; provided further, that the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any Third Party ClaimClaim that is the subject of a notice given by or on behalf of any Indemnified Person pursuant to Section 9.04(a). In addition, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Indemnifying Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at its sole cost and expense, to defend the expense Indemnified Person against the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Person so long as (i) the Indemnifying Party gives written notice that they or it will defend the Third Party Claim to the Indemnified Person within fifteen (15) days after the Indemnified Person has given notice of the IndemnitorThird Party Claim under Section 9.04(a) stating that the Indemnifying Party will, after three and thereby covenants to, indemnify, defend and hold harmless the Indemnified Person from and against the entirety of any and all Losses (3) Business Days notice subject to the Indemnitor limitations set forth in Sections 9.01, 9.02, and 9.03) the Indemnified Person may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, subject to the limitations set forth in this ARTICLE IX, (ii) the Indemnifying Party provides the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Party will have adequate financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Person, (iv) the Indemnified Person has not been advised by counsel that a conflict exists or would reasonably be expected to arise between the Indemnified Person and the Indemnifying Party in connection with the defense of its intent the Third Party Claim, (v) the Third Party Claim does not arise in connection with Taxes or any criminal regulatory enforcement Action or an Action on behalf of a regulatory authority which would reasonably be expected to do soresult in criminal penalties, to undertake sanctions or material Losses, and (vi) the Indemnifying Party conducts the defense of the Third Party Claim for actively and diligently. The Indemnified Person may retain separate co-counsel at its sole cost and expense and participate in the account defense of the Indemnitor (with Third Party Claim; provided, that the Indemnifying Party will pay the fees and expenses of separate counsel selected retained by the Indemnitee), and Indemnified Person that are incurred prior to compromise or settle the Indemnifying Party’s assumption of control of the defense of the Third Party Claim. The party controlling the defense of any Third Party Claim shall keep the other party reasonably advised of the status of proceedings with respect to such Third Party Claim, exercising reasonable business judgmentClaim and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto (provided that no party shall be required to provide information to the extent it is subject to attorney-client privilege or such information may be reasonably relevant to a direct claim among the parties).

Assumption of Defense. If a Third Party Claim is made An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against an Indemniteesuch indemnifying party because of the indemnity set forth above, the Indemnitor will be entitledand, within one hundred twenty (120) days after receipt of written notice if such indemnity shall arise from the Indemnitee claim of the commencement or assertion of any a third party, shall permit such Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect indemnifying party to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal such claim or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofany litigation resulting from such claim; provided, however, that if in failure promptly to give any such notice shall not affect the opinion of counselindemnification provided under this Article VIII, except to the extent such counsel indemnifying party shall have been actually and opinion being satisfactory to Indemnitor and its counsel, materially prejudiced as a conflict of interest exists between the Indemnitor and an Indemnitee in respect result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in a criminal penalty or fine against the indemnified party the consequences of which would be reasonably likely to have a Material Adverse Effect on the indemnified party unrelated to the size of such penalty or fine, or (iii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair CALLISTO's right or ability to operate the Company. If an indemnifying party assumes the defense of such third party claim, such Indemnitee indemnifying party shall conduct such defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the indemnified party and shall, in his or her or its sole discretion, have the right to employ separate decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel (which chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the Indemnitor) to represent indemnified party. The indemnified party may participate in such Indemnitee with respect to the matters as to which a conflict of interest exists proceeding and in that event, the reasonable fees retain separate co-counsel at its sole cost and expenses of such separate counsel shall be paid by such Indemnitor; provided further, expense (except that the Indemnitor indemnifying party shall only be responsible for the reasonable fees and expenses of one (1) separate co-counsel for such Indemnitee. If the Indemnitor assumes indemnified party to the defense of any Third Party Claim, extent the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at indemnified party is advised by its own expense, separate from counsel that either (x) the counsel employed by the Indemnitor. If the Indemnitor assumes the defense indemnifying party has selected has a conflict of any Third Party Claim, the Indemnitor will promptly supply interest or (y) there are legal defenses available to the Indemnitee copies of all correspondence and documents relating indemnified party that are different from or additional to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may be reasonably requested by the Indemnitee (including providing those available to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, within the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemniteeindemnifying party), and the indemnifying party will not without the written consent of the indemnified party consent to compromise the entry of any judgment or settle enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the indemnified party of its election to defend any such Third Party Claim, exercising reasonable business judgmentclaim or action by a third party within thirty (30) days after notice thereof shall have been given to such indemnifying party by the indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or action.