Common use of Conduct of Litigation Clause in Contracts

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it in respect of matters for which it is entitled to indemnity under this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder. In the event such claim involves a claim by a third party against the indemnified party, the indemnifying party shall have ten (10) days after receipt of such notice to decide whether it will undertake, conduct and control, through counsel of its own choosing and reasonably acceptable to the indemnified party and at its own expense the settlement or defense thereof, and if it shall so decide to undertake the defense thereof, the indemnified party shall cooperate with it in connection therewith, provided that the indemnified party may participate (subject to the indemnifying party's control) in such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified party. If the indemnifying party does not indicate or indicates that it will not undertake the defense of such third party claim within the ten (10) day period above, the indemnified party shall undertake and control the defense thereof and the indemnifying party shall be liable for all fees and expenses of such defense, including the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such action, which written release shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlement, compromise or judgment proposed by the indemnifying party, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed. If the indemnifying party does not notify the indemnified party within ten (10) days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XI.

Conduct of Litigation. Each party indemnified In the event that the Buyer Parties become subject to an action, suit or proceeding pursuant to the Merger Agreement that (a) involves an allegation of a breach by Buyer Parties of an obligation under the provisions Merger Agreement or (b) involves a factual allegation that, if true, would constitute a breach by a Sponsor of an obligation under this AgreementAgreement or its Limited Guarantee (with respect to such Sponsor, upon receipt a “Related Claim”), then Topco shall deliver notice of written such Related Claim to such Sponsor reasonably promptly after becoming aware of such Related Claim; provided that the failure of Topco to give reasonably prompt notice of any claim Related Claim shall not release, waive or otherwise affect the service of Sponsor’s obligations with respect thereto except to the extent that the Sponsor is actually and materially prejudiced as a summons or other initial legal process upon it in any action instituted against it in respect of matters for which it is entitled to indemnity under this Agreement, shall promptly give written notice result of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunderfailure. In the event such claim involves a claim by a third party against the indemnified party, the indemnifying party Such Sponsor shall have ten the right (10) but not the obligation), within 30 days after receipt of notice of such notice Related Claim, to decide whether it will undertake, conduct and control, through counsel of its own choosing and reasonably acceptable elect to the indemnified party and at its own expense the settlement or defense thereof, and if it shall so decide to undertake the defense thereof, the indemnified party shall cooperate with it in connection therewith, provided that the indemnified party may participate (subject to the indemnifying party's controli) in the case of a Related Claim primarily or exclusively related to such settlement or defense through counsel chosen by itSponsor, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified party. If the indemnifying party does not indicate or indicates that it will not undertake jointly with Topco control the defense of such third party claim within Related Claim and (ii) in the ten (10) day period abovecase of any other Related Claim, the indemnified party shall undertake and control participate in the defense thereof and the indemnifying party shall be liable for all fees and expenses of such defense, including the fees Related Claim with Topco and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the indemnified party of a written release from all liability other Sponsor in respect of which such actionclaim is a Related Claim, it being understood that with respect to any Related Claim, such Sponsor may employ counsel (which written release shall be reasonably satisfactory to Topco), at its own expense, separate from the counsel employed by Topco. If such Sponsor exercises its right pursuant to the preceding sentence to control or participate in form such Related Claim, then the Sponsors shall reasonably cooperate with such Sponsor in the defense thereof (and substance to counsel for the indemnified party. The indemnifying party shall not, without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, event each Sponsor shall reasonably cooperate with Topco in the reasonable judgment defense of the indemnified party, would adversely affect the indemnified partysuch Related Claim); provided, however, that if the indemnified party no Sponsor shall fail be required to commence or refuse to consent to a settlementparticipate in any legal action in connection therewith. Such Sponsor will not admit any liability with respect to, or settle, compromise or judgment proposed by the indemnifying party and approved by the third person in discharge, any such action Related Claim without Topco’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). Whether or not such Sponsor assumes the defense of a Related Claim, Topco shall not, and a judgment thereafter shall be entered cause the Buyer Parties not to, admit any liability with respect to, or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlementsettle, compromise or judgment proposed by the indemnifying partydischarge, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date Related Claim without such settlement, compromise or judgment was so proposed. If the indemnifying party does not notify the indemnified party within ten Sponsors’ prior written consent (10) days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but which consent shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faithbe unreasonably withheld, the indemnified party shall not pay conditioned or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XIdelayed).

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it it, in respect of matters for which it is entitled to indemnity under the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, that the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. In Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such claim involves a claim defense shall be conducted by a third counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. The indemnifying party shall provide the indemnified person with such additional information and opportunity for consultation as may reasonably be requested by it. The indemnified party shall render all assistance as the indemnifying party shall reasonably request in the defense of any such action. Notwithstanding the foregoing, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided that the indemnifying party shall have ten (10) days after receipt of such notice be obligated to decide whether it will undertake, conduct and control, through pay for only one counsel of its own choosing and reasonably acceptable to the for all indemnified party and at its own expense the settlement or defense thereof, and if it shall so decide to undertake the defense thereof, the indemnified party shall cooperate with it in connection therewith, provided that the indemnified party may participate (subject to the indemnifying party's control) in such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified partyparties. If the indemnifying party does shall elect not indicate or indicates that it will not undertake to assume the defense of such third party claim within the ten (10) day period aboveor action, the indemnified party shall undertake and control the defense thereof and the such indemnifying party shall be liable reimburse such indemnified party for all the reasonable fees and expenses of such defenseany counsel retained by it, including the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets shall be bound by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery results obtained by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, which written release however, that no such claim or action shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, settled without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlement, compromise or judgment proposed by the indemnifying party, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed. If the indemnifying party does not notify the indemnified party within ten (10) days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but which consent shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faith, the indemnified party shall not pay be unreasonably withheld or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XIdelayed.

Conduct of Litigation. Each Any party indemnified against whom a claim is asserted, promptly after receipt of notice of the commencement or threat of any such claim in respect of which indemnification may be sought hereunder (the "Indemnified Party"), shall notify the other party (the "Indemnifying Party") in writing of the commencement or threat thereof. The failure of the Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligation to indemnify PI the Indemnified Party and shall not relieve the Indemnifying Party of any other liability which any of them may have to the Indemnified Party, except to the extent such failure to notify results in actual damage or prejudice to the Indemnifying Party over and above any amount for which the Indemnifying Party would otherwise have been responsible under the provisions Article 5 of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it in respect of matters for which it is entitled to indemnity under this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder. In the event of the commencement of any such claim involves action as to which the Indemnified Party notifies the Indemnifying Party as aforesaid, the Indemnifying Party will be entitled to participate therein and to assume the defense thereof at its expense, provided that the Indemnifying Party promptly notify the Indemnified Party of its election so to assume the defense thereof. Nothing herein shall be construed so as to give any insurance carrier a claim right of subrogation for claims paid except as such right would otherwise exist in the absence of Article 5 of this Agreement. The Indemnified Party shall be entitled to participate in the defense of any action and to be represented by counsel of its own selection. If the attorneys provided for the defense of the Indemnified Party by the Indemnifying Party withdraw from or are removed by court order from the Indemnified Party's representation, or if either equitable relief is being sought or the Indemnified Party is also joined as a third party in any such action, then the cost of counsel selected by the Indemnified Party shall be part of the Indemnified Party's cost, and the Indemnified Party shall have the right in all respects to conduct its own defense. If the Indemnified Party otherwise retains its own counsel, the cost thereof shall be for the account of the Indemnified Party. As to cases in which the Indemnifying Party has assumed and is providing the defense for the Indemnified Party, except with respect to causes of action alleged separately against the indemnified partyIndemnified Party, the indemnifying party handling and decisions in respect of which shall have ten be under the sole and exclusive control of the Indemnified Party, the control of such defense and the right to reach a settlement in such action shall remain vested in the Indemnifying Party. As to any action in which the Indemnified Party is not represented by counsel of its own selection, the Indemnifying Party shall provide to the Indemnified Party reasonable information (10including reasonable advance notice of all proceedings in respect thereto) regarding the conduct of the action and the right to attend all proceedings and depositions in respect thereto through its agents and attorneys, and the right to discuss the action with counsel for the Indemnifying Party, and the Indemnifying Party will consider the Indemnified Party's view with respect to the conduct of the action. Except as provided in the first sentence of this paragraph above, the Indemnifying Party shall at all times be entitled to make all decisions regarding the action, including settlements; provided, that, if the Indemnified Party objects to a settlement which has otherwise been fully agreed to but for this provision, the Indemnified Party may prohibit the Indemnifying Party from making such settlement in the Indemnified Party's behalf, in which case, at the election of the Indemnifying Party, the Indemnifying Party may pay to the Indemnified Party the proposed cost to them of such settlement, in cash, and the Indemnified Party shall thereafter be responsible for such litigation matter and the Indemnifying Party thereafter has no further indemnification responsibility with respect to such matter. If, within twenty (20) days after receipt by the Indemnifying Party of such notice to decide whether it will undertake, conduct and control, through counsel of its own choosing and reasonably acceptable from the Indemnified Party to the indemnified party and at its own expense the settlement or defense thereof, and if it shall so decide Indemnifying Party as to undertake the defense thereofcommencement of any action in respect of which indemnification is sought hereunder, the indemnified party shall cooperate with it in connection therewith, provided Indemnifying Party has not notified the Indemnified Party that the indemnified party may participate (subject to the indemnifying party's control) in such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified party. If the indemnifying party does not indicate or indicates that it will not undertake Indemnifying Party assumes the defense of such third party claim within the ten (10) day period above, the indemnified party shall undertake action without reservation and control the defense thereof and the indemnifying party shall be liable for all fees and expenses of have actually assumed such defense, including then the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such action, which written release shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlement, compromise or judgment proposed by the indemnifying party, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed. If the indemnifying party does not notify the indemnified party within ten (10) days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party Indemnified Party shall have the right to contestdefend such action and totally to control such defense, settle or compromise and to proceed immediately against the claim Indemnifying Party to enforce all indemnification rights hereunder (including but shall not thereby waive any right limited to indemnity therefor pursuant to this Agreement. So long the costs of defense, as the indemnifying party is contesting any same may be incurred), and the Indemnifying Party shall thereafter not be entitled to participate in such claim in good faith, the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases action. The indemnification obligations of the indemnifying party Indemnifying Party with respect to such action shall, however, in no way be diminished by virtue of the foregoing, and the fact that the Indemnified Party shall have defended, settled, compromised or otherwise dealt with such action shall not, in any circumstances, be deemed to constitute any waiver, release, or exon- eration of the Indemnifying Party from all liability in respect its indemnification obligations, regardless of the outcome of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XIaction.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it it, in respect of matters for which it is entitled to indemnity under the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder. In ; PROVIDED, HOWEVER, that the event failure to provide such claim involves notice within a claim by a third party against the indemnified party, reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. Each indemnifying party shall have ten (10) days after receipt be entitled at its own expense to participate in the defense of such notice claim or action, or, if it shall elect, to decide whether it will undertakeassume such defense, conduct and controlin which event such defense shall be conducted by counsel chosen by such indemnifying party, through which counsel of its own choosing and may be any counsel reasonably acceptable satisfactory to the indemnified party and at its own expense against whom such claim is asserted or who shall be the settlement or defense thereofdefendant in such action, and if it shall so decide to undertake the defense thereof, the such indemnified party shall cooperate with it in connection therewith, provided that the indemnified party may participate (subject to the indemnifying party's control) in such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified party. If the indemnifying party does not indicate or indicates that it will not undertake the defense of such third party claim within the ten (10) day period above, the indemnified party shall undertake and control the defense thereof and the indemnifying party shall be liable for bear all fees and expenses of such defense, including the fees and expenses of such indemnified party's counselany additional counsel retained by it or them. The indemnifying party mayshall provide the indemnified person with such additional information and opportunity for consultation as may reasonably be requested by it. The indemnified person shall render all assistance as the indemnifying party shall reasonably request in the defense of any such action. Notwithstanding the foregoing, without if the consent named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, settle or compromise or consent to at the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation expense of the Business or the use of the Acquired Assets by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such action, which written release shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment if it is determined by agreement of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlement, compromise or judgment proposed by the indemnifying party, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess a court of those competent jurisdiction that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed. If the indemnifying party does not notify the indemnified party within ten (10) days after the receipt of the indemnified party's notice of a claim of indemnity is entitled to indemnification hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying partyIndemnified Amounts giving rise to such action. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XI.If the

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it it, in respect of matters for which it is entitled to indemnity under the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, that the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. In Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such claim involves a claim defense shall be conducted by a third counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. The indemnifying party shall provide the indemnified person with such additional information and opportunity for consultation as may reasonably be requested by it. The indemnified person shall render all assistance as the indemnifying party shall reasonably request in the defense of any such action. Notwithstanding the foregoing, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party shall have ten (10) days after receipt of such notice to decide whether it will undertake, conduct and control, through counsel of its own choosing and reasonably acceptable to the indemnified party and at its own expense the settlement or defense thereof, and if it shall so decide to undertake the defense thereof, the indemnified party shall cooperate with it in connection therewith, provided by a court of competent jurisdiction that the indemnified party may participate (subject is entitled to indemnification hereunder for the indemnifying party's control) in Indemnified Amounts giving rise to such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified partyaction. If the indemnifying party does shall elect not indicate or indicates that it will not undertake to assume the defense of such third party claim within the ten (10) day period aboveor action, the indemnified party shall undertake and control the defense thereof and the such indemnifying party shall be liable reimburse such indemnified party for all the reasonable fees and expenses of such defenseany counsel retained by it, including the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets shall be bound by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery results obtained by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, which written release however, that no such claim or action shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, settled without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlement, compromise or judgment proposed by the indemnifying party, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed. If the indemnifying party does not notify the indemnified party within ten (10) days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but which consent shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faith, the indemnified party shall not pay be unreasonably withheld or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XIdelayed.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it it, in respect of matters for which it is entitled to indemnity under the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder. In the event such claim involves a claim by a third party against the indemnified party, the Each indemnifying party shall have ten (10) days after receipt be entitled at its own expense to participate in the defense of such notice claim or action, or, if it shall elect, to decide whether it will undertakeassume such defense, conduct and controlin which event such defense shall be conducted by counsel chosen by such indemnifying party, through unless the indemnified party reasonably objects to the use of such counsel, in such event counsel of its own choosing and may be any counsel reasonably acceptable satisfactory to the indemnified party and at its own expense against whom such claim is asserted or who shall be the settlement or defense thereofdefendant in such action, and if it shall so decide to undertake the defense thereof, the such indemnified party shall cooperate with it in connection therewith, provided that the indemnified party may participate (subject to the indemnifying party's control) in such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified party. If the indemnifying party does not indicate or indicates that it will not undertake the defense of such third party claim within the ten (10) day period above, the indemnified party shall undertake and control the defense thereof and the indemnifying party shall be liable for bear all fees and expenses of such defense, including the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle any additional counsel retained by it or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such action, which written release shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified partythem; provided, however, that if the indemnified party shall fail or refuse to consent to reasonably determines that there may be a settlement, compromise or judgment proposed by conflict between the positions of the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than in conducting the settlement, compromise defense of such action or judgment proposed by that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then notwithstanding any other provision hereof counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposedparty. If the indemnifying party does shall elect not notify to assume the defense of such claim or action, such indemnifying party will reimburse such indemnified party within ten (10) days after for the receipt reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party's notice of a claim of indemnity hereunder ; provided, however, that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any no such claim in good faith, or action shall be settled without the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases consent of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XI.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it it, in respect of matters for which it is entitled to indemnity under the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. In Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such claim involves a claim defense shall be 26 conducted by a third counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. Notwithstanding the immediately preceding sentence, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party shall have ten (10) days after receipt of such notice to decide whether it will undertake, conduct and control, through counsel of its own choosing and reasonably acceptable to the indemnified party and at its own expense the settlement or defense thereof, and if it shall so decide to undertake the defense thereof, the indemnified party shall cooperate with it in connection therewith, provided by a court of competent jurisdiction that the indemnified party may participate (subject is entitled to indemnification hereunder for the indemnifying party's control) in Indemnified Amounts giving rise to such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified partyaction. If the indemnifying party does shall elect not indicate or indicates that it will not undertake to assume the defense of such third party claim within the ten (10) day period aboveor action, the indemnified party shall undertake and control the defense thereof and the such indemnifying party shall be liable reimburse such indemnified party for all the reasonable fees and expenses of such defenseany counsel retained by it, including the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets shall be bound by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery results obtained by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action, which written release provided, however, that no such claim or action shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, settled without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlement, compromise or judgment proposed by the indemnifying party, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed. If the indemnifying party does not notify the indemnified party within ten (10) days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XI.

Conduct of Litigation. Each (a) An indemnified party indemnified under hereunder shall promptly give notice to the provisions of this Agreement, upon receipt of written notice indemnifying party after obtaining knowledge of any claim or the service of a summons or other initial legal process upon it in any action instituted against it in respect of matters for which it is entitled to indemnity under this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder. In the event such claim involves a claim by a third party item against the indemnified party, party as to which recovery may be sought against the indemnifying party because of the covenants of indemnity set forth above. If such indemnity shall have ten (10) days after receipt arise from the claim of such notice to decide whether it will undertake, conduct and control, through counsel of its own choosing and reasonably acceptable to the indemnified party and at its own expense the settlement or defense thereof, and if it shall so decide to undertake the defense thereofa third party, the indemnified party shall cooperate with it in connection therewithpermit the indemnifying party to assume the defense of any such claim or any litigation resulting from such claim. If the indemnifying party assumes the defense of the claim, provided that the matter or litigation at issue, each indemnified party may participate (subject shall have the right to the indemnifying party's control) employ separate counsel in such settlement claim, matter or litigation and to participate in the defense through counsel chosen by itor conduct thereof, and provided further that but the fees and expenses of such indemnified party's counsel shall not be borne at the expense of the indemnifying party unless (i) the indemnifying party shall have failed, within a reasonable time after having been notified by the indemnified party of the existence of such claim, matter or litigation as provided in the preceding sentence, to assume the defense of such claim, (ii) the employment of such counsel has been specifically authorized in writing by the indemnifying party, (iii) the named parties to any such action (including any impleaded parties) include both such indemnified party and the indemnifying party and such indemnified party shall have been advised in writing by such counsel that there may be conflicting interests between the indemnifying party and the indemnified party in the legal defense thereof and, in such event, legal counsel selected by the indemnifying party shall be required to cooperate fully with legal counsel selected by the indemnified party relating to such defense, or (iv) equitable relief is being sought against any of the indemnified parties. If the indemnifying party does not indicate assumes the defense of the particular claim or indicates that it will not undertake litigation, neither the indemnifying party or the indemnified party shall, in the defense of such third party claim within or litigation, counsel to entry of any judgment or enter into any settlement, except with the ten (10) day period abovewritten consent of the other party, the indemnified party which consent shall undertake and control the defense thereof and not be unreasonably withheld. In addition, the indemnifying party shall be liable for all fees and expenses not enter into any settlement of such defense, including any litigated claim (except with the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the written consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and ) which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets by the Purchaser after the Closing Date, which includes include as an unconditional term thereof the delivery giving by the claimant or the plaintiff to the indemnified party of a written full release from all liability in respect of such action, which written release shall be reasonably satisfactory in form and substance to counsel for the indemnified partyclaim or litigation. The indemnifying party shall not, without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed Failure by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to notify the indemnified party than the settlement, compromise of its election to defend any such claim or judgment proposed litigation by the indemnifying party, then notwithstanding any other provision hereof a third party within fifteen (15) days after notice thereof shall have been given to the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed be deemed a waiver by the indemnifying party or any costs or expenses related of its right to defend such claim arising after the date such settlement, compromise or judgment was so proposedlitigation. If the indemnifying party does shall not notify assume the defense of any such claim by a third party or litigation resulting therefrom, the indemnified party within ten (10) days after may defend against such claim or litigation in such manner as it may deem appropriate and may settle such claim or litigation on such terms as it may deem appropriate without prejudicing its rights against the receipt indemnifying party provided for herein. Nothing contained herein shall be construed to give any insurance carrier a right of subrogation for claims paid except as such right would otherwise exist in the absence of this Article 5. Further, for purposes of this Section, notification from the Internal Revenue Service of an intended audit of the indemnified partyCompany's tax returns for any period prior to Closing Date shall be considered notice of a claim as to which Purchaser shall promptly notify the Shareholders' Representative referenced in Section 7.12, acting on behalf of indemnity hereunder that it elects to undertake the Shareholders. The Shareholders shall pay for and have complete control of and discretion in defending and/or settling the audit, and all liabilities incurred by way of defense thereof, and settlement of the indemnified party audit and claims arising thereunder shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery be paid by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XIShareholders.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it in respect of matters for which it is entitled to indemnity under this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder (but the failure or delay of such party to give such notice shall not relieve the indemnifying party of its obligation to provide indemnification hereunder, except to the extent the indemnifying party is prejudiced by such failure or delay). In the event such claim involves a claim by a third party against the indemnified party, the indemnifying party shall have ten may elect (10by written notice delivered to the indemnified party) days after receipt of such notice to decide whether it will undertake, conduct and control, through counsel of its own choosing and reasonably acceptable to the indemnified party and at its own expense expense, the settlement or defense thereof, and if it shall so decide elect to undertake the defense thereof, the indemnified party shall cooperate with it in connection therewith, provided that the indemnified party may participate (subject to the indemnifying party's control) in such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel (from and after the date of such election) shall be borne by the indemnified party. If the indemnifying party does not indicate or indicates that it will not elect to undertake the defense of such third party claim within the ten (10) day period as provided above, the indemnified party shall undertake and control the defense thereof and the indemnifying party shall be liable for all fees and expenses of such defense, including the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money by the indemnifying party and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such action, which written release shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, without the written consent of the indemnified partyparty (which consent shall not be unreasonably withheld), settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlement, compromise or judgment proposed by the indemnifying party, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed. If the indemnifying party that does not notify the indemnified party within ten (10) days after the receipt provide a written release of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in with respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying partythereto. The indemnified and indemnifying party shall each cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XIXII.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it it, in respect of matters for which it is entitled to indemnity under the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. In Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such claim involves a claim defense shall be conducted by a third counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. Notwithstanding the immediately preceding sentence, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party shall have ten (10) days after receipt of such notice to decide whether it will undertake, conduct and control, through counsel of its own choosing and reasonably acceptable to the indemnified party and at its own expense the settlement or defense thereof, and if it shall so decide to undertake the defense thereof, the indemnified party shall cooperate with it in connection therewith, provided by a court of competent jurisdiction that the indemnified party may participate (subject is entitled to indemnification hereunder for the indemnifying party's control) in Indemnified Amounts giving rise to such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified partyaction. If the indemnifying party does shall elect not indicate or indicates that it will not undertake to assume the defense of such third party claim within the ten (10) day period aboveor action, the indemnified party shall undertake and control the defense thereof and the such indemnifying party shall be liable reimburse such indemnified party for all the reasonable fees and expenses of such defenseany counsel retained by it, including the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets shall be bound by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery results obtained by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, which written release however, that no such claim or action shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, settled without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlement, compromise or judgment proposed by the indemnifying party, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed. If the indemnifying party does not notify the indemnified party within ten (10) days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XI.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it it, in respect of matters for which it is entitled to indemnity under the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party 24 from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. In Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such claim involves a claim defense shall be conducted by a third counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. Notwithstanding the immediately preceding sentence, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party shall have ten (10) days after receipt of such notice to decide whether it will undertake, conduct and control, through counsel of its own choosing and reasonably acceptable to the indemnified party and at its own expense the settlement or defense thereof, and if it shall so decide to undertake the defense thereof, the indemnified party shall cooperate with it in connection therewith, provided by a court of competent jurisdiction that the indemnified party may participate (subject is entitled to indemnification hereunder for the indemnifying party's control) in Indemnified Amounts giving rise to such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified partyaction. If the indemnifying party does shall elect not indicate or indicates that it will not undertake to assume the defense of such third party claim within the ten (10) day period aboveor action, the indemnified party shall undertake and control the defense thereof and the such indemnifying party shall be liable reimburse such indemnified party for all the reasonable fees and expenses of such defenseany counsel retained by it, including the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets shall be bound by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery results obtained by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, which written release however, that no such claim or action shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, settled without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlement, compromise or judgment proposed by the indemnifying party, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed. If the indemnifying party does not notify the indemnified party within ten (10) days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XI.

Conduct of Litigation. Each indemnifying party indemnified under shall be entitled at its own expense to conduct the provisions of this Agreement, upon receipt of written notice defense of any claim or the service of a summons or other initial legal process upon it action to be indemnified hereunder in which event such defense shall be conducted by counsel chosen by such indemnifying party, which counsel may be any action instituted against it in respect of matters for which it is entitled to indemnity under this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, counsel reasonably satisfactory to the party from whom indemnity shall be sought hereunder. In the event such claim involves a claim by a third party against the indemnified party, the indemnifying party shall have ten (10) days after receipt of such notice to decide whether it will undertake, conduct and control, through counsel of its own choosing and reasonably acceptable to the indemnified party and at its own expense the settlement or defense thereofindemnitees, and if it shall so decide to undertake the defense thereof, the indemnified party shall cooperate with it in connection therewith, provided that the indemnified party may participate (subject to the indemnifying party's control) in such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified party. If the indemnifying party does not indicate or indicates that it will not undertake the defense of such third party claim within the ten (10) day period above, the indemnified party shall undertake and control the defense thereof and the indemnifying party shall be liable for bear all fees and expenses of such defense, including the fees and expenses of such indemnified party's counsel. The indemnifying party may, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets additional counsel retained by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the indemnified party of a written release from all liability in respect of such action, which written release shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified partythem; provided, however, that if counsel for the indemnified party shall fail or refuse to consent to reasonably determines that there is a settlement, compromise or judgment proposed by conflict between the positions of the indemnified party and the indemnifying party and approved by in conducting the third person in any defense of such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate that there are legal defenses available to the such indemnified party than the settlement, compromise different from or judgment proposed by in addition to those available to the indemnifying party, then notwithstanding any other provision hereof counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to protect the interests of the indemnified party, at the expense of the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposedparty. If the indemnifying party does shall elect not notify the indemnified party within ten (10) days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake assume the defense thereofof such claim or action, and such action is finally determined by a court of competent jurisdiction and such indemnifying party is determined to be liable for the indemnified party shall have the right to contestindemnification obligations hereunder, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as then the indemnifying party is contesting will reimburse the indemnitees for the reasonable fees and expenses of any counsel retained by them in such claim action and/or in good faith, the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and action brought by the indemnified party to determine the indemnifying party of duly executed written releases indemnification obligations of the indemnifying party from and all liability in respect of such claimcourt costs, which written releases interest, and fees and disbursements as permitted by statute, and the indemnifying party shall be reasonably satisfactory in form and substance to counsel for bound by the results obtained by the indemnitees; provided, however, that no such claim or action shall be settled without the written consent of the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XI.

Conduct of Litigation. Each party Party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim claim, or the service of a summons or other initial legal process upon it in any action instituted against it it, in respect of matters for which it is entitled to indemnity under the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, thereof to the party Party from whom indemnity shall be sought hereunder. In the event such claim involves a claim by a third party against the indemnified party; provided, however, the indemnifying party shall have ten (10) days after receipt of failure to provide such notice to decide whether it will undertake, conduct and control, through counsel within a reasonable period of time shall not relieve the indemnifying Party of any of its own choosing and reasonably acceptable obligations hereunder except to the indemnified party and extent the indemnifying Party is prejudiced by such failure. The indemnifying Party shall be entitled at its own expense the settlement or defense thereof, and if it shall so decide to undertake the defense thereof, the indemnified party shall cooperate with it participate in connection therewith, provided that the indemnified party may participate (subject to the indemnifying party's control) in such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel shall be borne by the indemnified party. If the indemnifying party does not indicate or indicates that it will not undertake the defense of such third party claim within the ten (10) day period aboveor action, or, if it shall elect, to assume such defense, in which event such defense shall be conducted by counsel chosen by such indemnifying Party, which counsel may be any counsel reasonably satisfactory to the indemnified party shall undertake and control the defense thereof and the indemnifying party Party against whom such claim is asserted or who shall be liable for the defendant in such action, and such indemnified Party shall bear all fees and expenses of any additional counsel retained by it. Notwithstanding the immediately preceding sentence, if the named parties in such defenseaction (including impleaded parties) include the indemnified and the indemnifying Parties, including and the indemnified Party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying Party and the indemnified Party in conducting the defense of such action or that there are legal defenses available to such indemnified Party different from or in addition to those available to the indemnifying Party, then counsel for the indemnified Party shall be entitled, if the indemnified Party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified Party, at the expense of the indemnifying Party, if it is determined by agreement of the indemnifying Party and the indemnified Party or by a court of competent jurisdiction that the indemnified Party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying Party shall elect not to assume the defense of such claim or action, such indemnifying Party shall reimburse such indemnified Party for the reasonable fees and expenses of such indemnified party's counsel. The indemnifying party mayany counsel retained by it, without and shall be bound by the consent of results obtained by the indemnified party, settle or compromise or consent to the entry of any judgment in any action involving only the payment of money and which does not involve any undertaking which would affect the operation of the Business or the use of the Acquired Assets by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the indemnified party of a written release from all liability Party in respect of such claim or action if it is determined by agreement of the indemnifying Party and the indemnified Party or by a court of competent jurisdiction that the indemnified Party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, which written release however, that no such claim or action shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party shall not, settled without the written consent of the indemnified party, settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the indemnified party, would adversely affect the indemnified party; provided, however, that if the indemnified party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the indemnifying party and approved by the third person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the indemnified party than the settlement, compromise or judgment proposed by the indemnifying party, then notwithstanding any other provision hereof the indemnifying party shall have no liability hereunder with respect to any losses and damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the indemnifying party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed. If the indemnifying party does not notify the indemnified party within ten (10) days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. So long as the indemnifying party is contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the indemnified party to the indemnifying party of duly executed written releases of the indemnifying party from all liability in respect of such claim, which written releases shall be reasonably satisfactory in form and substance to counsel for the indemnifying party. The indemnified party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XIParty.