Common use of Defense of Third Party Claims Clause in Contracts

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt In the event of the assertion or commencement by any third party of any claim or proceeding against either a Buyer Indemnified Person or the Indemnifying Party of a notice from Seller Indemnified Person (such person being the “Indemnified Party Party”) with respect to any claim of a third party against which Buyer or the Indemnified Seller (the “Indemnifying Party”) may become obligated to indemnify, for which the Indemnified Party seeks indemnification hereundercompensate or reimburse pursuant to this Section 10, the Indemnifying Party shall have the right right, at its election, to assume the defense of such claim, and claim or proceeding at the Indemnified Party shall cooperate to the extent reasonably requested by sole expense of the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithParty. If the Indemnifying Party shall elect so elects to assume the defense of any such claim, claim or proceeding: (a) the Indemnifying Party shall proceed to defend such claim or proceeding in a diligent manner with counsel reasonably satisfactory to the Indemnified Party; (b) the Indemnified Party shall make available to the Indemnifying Party and/or the counsel provided by the Indemnifying Party any documents and materials in the possession of the Indemnified Party that may be necessary to the defense of such claim or proceeding; (c) the Indemnifying Party shall keep the Indemnified Party informed of all material developments and events relating to such claim or proceeding; (d) the Indemnified Party shall have the right to employ its own counsel participate in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any such claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunderor proceeding; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then (e) the Indemnifying Party shall not settle or compromise such claim or proceeding without the prior written consent of the Indemnified Party unless (i) the Indemnifying Party obtains, at no cost to the Indemnified Party, a release executed and delivered by the claiming third party or parties of all claims against the Indemnified Party and (ii) any such consent settlement or compromise will not impose any civil or criminal liability on the Indemnified Party or require an admission of culpability on the part of the Indemnified Party; and (f) the Indemnified Party may at any time (notwithstanding the prior designation of the Indemnifying Party to assume the defense of such claim or proceeding) assume the defense of such claim or proceeding if the Indemnifying Party is also a party to such claim and the Indemnified Party reasonably determines that joint representation would be unreasonably withheld, conditioned or delayedinappropriate. If the Indemnifying Party does not elect to assume the defense of a third party any such claim and disputes or proceeding (or if, after initially assuming such defense, to the extent permitted pursuant to this Section 10.5, the Indemnified Party elects to assume such defense), the Indemnified Party may proceed with the defense of such claim or proceeding on its own. If the Indemnified Party so proceeds with the defense of any such claim or proceeding on its own: (i) all reasonable expenses directly or indirectly incurred by the Indemnified Party relating to the defense of such claim or proceeding shall be borne and paid exclusively by the Indemnifying Party’s right ; (ii) the Indemnifying Party shall make available to indemnification, the Indemnified Party any documents and materials in the possession or control of the Indemnifying Party that may be necessary to the defense of such claim or proceeding; (iii) the Indemnified Party shall keep the Indemnifying Party informed of all material developments and events relating to such claim or proceeding; and (iv) the Indemnified Party shall have the right to assume control of the defense of settle or compromise such claim through counsel of its choice, or proceeding with the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party; provided, however, that the Indemnifying Party shall not unreasonably withhold such consent not to be unreasonably withheld, conditioned or delayedconsent.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the If an Indemnified Party, ’s claim for which the Indemnified indemnification under Section 7.1 or Section 7.2 is based on a Claim brought by a Third Party seeks indemnification hereunder(a “Third Party Claim”), the Indemnifying Party shall have the right, at its sole cost and expense, to defend such Third Party Claim in the name or on behalf of the Indemnified Party. Notwithstanding the foregoing, an Indemnified Party shall have the right (following notice to assume the Indemnifying Party) to retain its own counsel and control its defense of any such claimThird Party Claim, with the reasonable fees and expenses to be paid by the Indemnifying Party if (a) representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate because of actual or potential differing interests between such Indemnified Party and the Indemnifying Party; (b) the Indemnifying Party shall have failed to employ counsel to defend such Proceeding or otherwise failed to prosecute such defense with reasonable diligence; or (c) the Indemnified Party shall cooperate have been advised by counsel chosen by it that there may be one or more legal defenses or counterclaims available to the extent reasonably requested by such Indemnified Party that are different from or additional to those available to the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithProceeding. If the Indemnifying immediately-preceding sentence is inapplicable (or if the Indemnified Party shall elect waives its right hereunder to assume the defense of defend such claimThird Party Claim), the Indemnified Party shall have the right to employ separate counsel at its own counsel cost and expense in any the Proceeding and, in such caseevent, but shall and shall have the fees and expenses right to, consult with the Indemnifying Party regarding the defense thereof; provided that, except as otherwise provided herein, the Indemnifying Party shall at all times control such defense of such counsel shall be at the expense of the Indemnified PartyProceeding. If the Indemnifying Party has assumed assumes the defense of any claim against the Indemnified Partysuch Third Party Claim, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall may not settle such or compromise the claim without the prior written consent of the Indemnified Party, such Party (which consent shall not to be unreasonably withheld, conditioned or delayed), unless the settlement or compromise includes a full release of all of the Indemnified Parties. If the The Indemnifying Party does not assume shall pay to or for the defense benefit of the Indemnified Parties in cash the amount for which such Indemnified Parties are entitled to be indemnified within thirty (30) days after the settlement or compromise of such Third Party Claim or the final non-appealable judgment of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified court of competent jurisdiction. An Indemnifying Party shall have the right to assume control not be liable for any settlement or compromise of the defense of such claim through counsel of any Third Party Claim without its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedconsent.

Defense of Third Party Claims. Upon receipt If a Party determines to make a claim for indemnification hereunder (each as applicable an “Indemnitee”), such Party as applicable shall notify the indemnifying party (an “Indemnitor”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand or other claim against the Indemnitee (if by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against party), describing the Indemnified Partyclaim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail (such written notice, an “Indemnification Notice”); provided that the failure to so notify an Indemnitor shall not relieve the Indemnitor of its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the damages for which the Indemnified Party seeks Indemnitor is obligated to be greater than such damages would have been had the Indemnitee given the Indemnitor prompt notice hereunder. Any Indemnitor shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification hereunderat such Indemnitor’s expense, the Indemnifying Party and at its option shall have the right be entitled to assume the defense of such claim, and the Indemnified Party shall cooperate thereof by appointing a reputable counsel reasonably acceptable to the extent reasonably requested by Indemnitee to be the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party lead counsel in connection therewith. If with such defense; provided, that the Indemnifying Party Indemnitee shall elect be entitled to assume participate in the defense of such claim, the Indemnified Party shall have the right claim and to employ counsel of its own counsel in any choice for such casepurpose; provided, but however, that the fees and expenses of such separate counsel shall be at borne by the expense of the Indemnified PartyIndemnitee and shall not be recoverable from such Indemnitor under this Article IX. If the Indemnifying Party has assumed Indemnitor shall control the defense of any claim against the Indemnified Partysuch claim, the Indemnifying Party Indemnitor shall have the right be entitled to settle any claim for which indemnification has been sought and is available hereundersuch claims; provided thatprovided, to that the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party Indemnitor shall not settle such claim without obtain the prior written consent of the Indemnified Party, such Indemnitee (which consent shall not to be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all liabilities and obligations with respect to such claim. If the Indemnifying Party does Indemnitor assumes such defense, the Indemnitor shall not be liable for any amount required to be paid by the Indemnitee that exceeds, where the Indemnitee has unreasonably withheld or delayed consent in connection with the proposed compromise or settlement of a third party claim, the amount for which that third party claim could have been settled pursuant to that proposed compromise or settlement. In all cases, the Indemnitee shall provide its reasonable cooperation with the Indemnitor in defense of claims or litigation, including by making employees, information and documentation reasonably available. If the Indemnitor shall not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationany such action, lawsuit, proceeding, investigation or other claim, the Indemnified Party shall have the right to assume control of the defense of Indemnitee may defend against such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event matter as it deems appropriate; provided that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance Indemnitee may not settle any such matter without the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such Indemnitor (which consent shall not to be unreasonably withheld, conditioned or delayed) if the Indemnitee is seeking or will seek indemnification hereunder with respect to such matter.

Defense of Third Party Claims. Upon receipt Any Indemnitee making a claim for indemnification under this Article 10 shall notify the Indemnitor of the claim in writing promptly after receiving written notice of any action, lawsuit, proceeding, investigation or other claim against it (if by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against party) (each, a “Third Party Claim”), describing the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderclaim, the Indemnifying amount thereof (if known and quantifiable) and the basis thereof; provided, however, that the failure to so notify an Indemnitor shall not affect the obligations of the Indemnitor hereunder unless the Indemnitor is actually prejudiced by such failure. Any Indemnitor shall be entitled to participate in the defense of such Third Party Claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall have the right be entitled to assume the defense thereof by appointing a reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense; provided, however, that prior to the Indemnitor assuming control of such claim, and the Indemnified Party defense it shall cooperate first verify to the extent reasonably requested by Indemnitee in writing that such Indemnitor shall be fully responsible (with no reservation of any rights) for all Losses and Expenses relating to such claim for indemnification and that it shall provide full indemnification to the Indemnifying Indemnitee with respect to such Third Party Claim giving rise to such claim for indemnification hereunder; and provided, further, that: (a) the Indemnitee shall be entitled to participate in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right claim and to employ counsel of its own counsel in any choice for such casepurpose, but provided, that the fees and expenses of such separate counsel shall be at borne by the expense Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the Indemnified Party. If date the Indemnifying Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the Indemnitor); (b) the Indemnitor shall not be entitled to assume control of such defense and shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation of or concerning the Indemnitee but not the Indemnitor; (ii) the Indemnitee reasonably believes that an adverse determination with respect to the Third Party has assumed Claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects; (iii) the claim seeks an injunction or equitable relief against the Indemnitee; (iv) a conflict of interest exists between the Indemnitor and the Indemnitee; or (v) the Indemnitor failed or is failing to vigorously prosecute or defend such claim; and (c) if the Indemnitor is controlling the defense of any claim against the Indemnified Partysuch claim, the Indemnifying Party Indemnitor shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without obtain the prior written consent of the Indemnified PartyIndemnitee before entering into any settlement or ceasing to defend such claim if, pursuant to or as a result of such consent not to settlement or cessation, injunctive or other equitable relief will be unreasonably withheldimposed against the Indemnitee or any Intellectual Property Rights of the Indemnitee shall be rendered invalid or unenforceable, conditioned or delayed. If the Indemnifying Party if such settlement does not assume expressly and unconditionally release the defense of a third party claim Indemnitee from all liabilities and disputes obligations with respect to such claim, without prejudice, or if any payment is required by the Indemnified Party’s right Indemnitee which is not entitled to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedIndemnitor.

Defense of Third Party Claims. Upon receipt In the event that an Indemnified Party becomes aware of a claim by a third party (a “Third Party Claim”) that such Indemnified Party in good faith believes may result in a Claim by or on behalf of such Indemnified Party, such Indemnified Party shall have the right in its sole discretion to conduct the defense of and to settle or resolve such Third Party Claim. The Indemnified Party shall notify the Indemnifying Party of a notice from any such Third Party Claim, and the Indemnified Indemnifying Party with respect shall be entitled, at its expense, to any claim of a third party against the Indemnified Partyparticipate in, for which the Indemnified Party seeks indemnification hereunderbut not to determine or conduct, the defense of such Third Party Claim. The Indemnifying Party shall have the right to assume receive copies of all pleadings, notices and communications with respect to the defense Third Party Claim to the extent that receipt of such claim, and documents does not affect any privilege relating to the Indemnified Party shall cooperate and subject to the extent reasonably requested execution by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, a standard non-disclosure agreement to the extent that such materials contain confidential or proprietary information. In the event of settlement requires or other resolution by the Indemnified Party to takeof any Third Party Claim, the amount paid in such settlement or prohibits resolution (the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then “Settlement Amount”) shall not be determinative and binding upon the Indemnifying Party shall as to the amount of Damages recoverable pursuant to this Article 10 with respect thereto unless the Indemnifying Party has consented (or been deemed to have consented), which consent may not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If , to any such settlement or resolution (in which case the Settlement Amount for such settlement or resolution shall, subject to the limitations set forth in this Article 10, be Damages for which the Indemnified Party is entitled to be indemnified, compensated and reimbursed hereunder), it being understood and agreed that any costs and expenses incurred or paid by any Indemnified Party in connection with the defense (including reasonable attorneys’ fees, other professionals’ and experts’ fees, costs of investigation and court or arbitration costs) with respect to such settlement or resolution are Damages recoverable pursuant to this Article 10 regardless of whether the Indemnifying Party does not assume consents (or is deemed to have consented) to the defense of Settlement Amount. The Indemnifying Party’s consent to any such settlement or resolution shall be deemed to have been given unless the Indemnifying Party shall have objected in a third party claim and disputes writing delivered to the Indemnified Party within ten (10) Business Days after a written request for such consent is delivered to the Indemnifying Party by the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt (a) If the Indemnified Party's claim for Indemnification is based, under this Agreement, on an Action, judicial or otherwise, brought by a third party, and the Indemnifying Party does not object under Section 6.4(b), the Indemnifying Party may, participate in the defense of such Action and may assume the defense of such Action with counsel satisfactory to the Indemnified Party if (i) the Indemnified Party agrees to assumption thereof by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, or (ii) the Indemnifying Party shall have confirmed in writing (without reservation or qualification) its obligation to provide indemnification for the right liability asserted in such action. If the Indemnified Party shall reasonably conclude that its interests in such Action are materially different from those of the Indemnifying Party or that it may have defenses that are different from or in addition to assume those available to the Indemnifying Party, the Indemnified Party may use separate counsel to protect such interests and assert such defenses and otherwise participate in the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithAction. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right with counsel satisfactory to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle not be liable for any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate legal expenses (other than investigation expenses) subsequently incurred by the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, unless the Indemnified Party shall have employed separate counsel in accordance with the right preceding sentence. (b) The Indemnifying Party shall pay to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise in immediately available funds the amounts for which the Indemnified Party is entitled to be indemnified within 30 days after such third party claim is Finally Determined (or settle a claim with within such longer period as agreed to by the parties). (c) In the event an Action is brought by a third party for in which it seeks the liability as between Centex and Cavco is alleged to be joint or in which the entitlement to indemnification from hereunder is not determinable or as to which there has been a reservation of rights, the Indemnifying Party parties shall cooperate in a joint defense. Such joint defense shall be under the general management and supervision of the party which is expected to bear the greater share of the liability; provided, however, that neither party shall settle or compromise any such joint defense matter without first obtaining the prior written consent of the Indemnifying Partyother. The costs of such joint defense shall be borne as the parties may agree, or in the absence of such agreement, such consent not costs shall be borne by the party incurring such costs, subject to be unreasonably withheld, conditioned or delayedultimate resolution pursuant to Article IX hereof.

Defense of Third Party Claims. Upon (a) Promptly after receipt by an indemnified party under Section 5.2 or Section 5.3 of notice of the Indemnifying Party assertion or commencement by any third person or entity of any claim, investigation, proceeding or action (collectively, a notice from the Indemnified Party "Claim") with respect to which any indemnifying party may become obligated to indemnify, hold harmless, compensate or reimburse an indemnified party pursuant to this Section 5, such indemnified party will, if a claim is to be made against an indemnifying party under such Section or if the indemnified party intends to take such claim into account in calculating the limitations described in Section 5.2(b) or Section 5.3(b), as applicable, give notice to the indemnifying party of the commencement of such Claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that the indemnifying party may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice. (b) The indemnified party shall afford the indemnifying party the opportunity to assume the defense of any claim as to which notice is given under Section 5.6(a) at the sole expense of a third the indemnifying party. If the indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right so undertakes to assume the defense of such claim, and Claim: (i) the Indemnified Party indemnifying party shall cooperate proceed to defend such Claim in a diligent manner with counsel reasonably satisfactory to the extent reasonably requested by indemnified party; (ii) the Indemnifying Party in defense or prosecution thereof indemnifying party shall keep the indemnified party informed of all material developments and shall furnish events relating to such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by Claim; (iii) the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party indemnified party shall have the right to employ its own counsel participate in any such case, but the fees and expenses defense of such Claim, provided, however, the counsel retained by the indemnified party shall be at the sole cost and expense of the Indemnified Party. If indemnified party, and further provided, that counsel retained by the Indemnifying Party has assumed indemnifying party shall be lead counsel in the defense of any claim against such Claim; and (iv) the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party indemnifying party shall not settle settle, adjust or compromise such claim Claim without the prior written consent of the Indemnified Party, such consent indemnified party which shall not to be unreasonably withheld, conditioned withheld or delayed. . (c) If the Indemnifying Party does not assume indemnifying party fails to promptly undertake the defense of a third such Claim or having undertaken such defense thereafter fails to do so diligently and in good faith, then the indemnified party claim may proceed with the defense of such Claim and: (i) all expenses incurred and disputes relating to the Indemnified Party’s right defense of such Claim shall be borne and paid exclusively by the indemnifying party; (ii) the indemnifying party shall make available to indemnification, the Indemnified Party indemnified party any documents and materials in the possession or control of the indemnifying party that may be necessary to the defense of such Claim; (iii) the indemnified party shall keep the indemnifying party informed of all material developments and events relating to such Claim; and (iv) the indemnified party shall have the right to assume control of settle, adjust or compromise such Claim with the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent indemnifying party which shall not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the An Indemnified Party with respect shall give prompt written notice to any Person who is obligated to provide indemnification hereunder (an "Indemnifying Party") of the commencement or assertion of any action, proceeding, demand or claim of by a third party against the Indemnified Party(collectively, for a "third-party action") in respect of which the such Indemnified Party seeks shall seek indemnification hereunder, . Any failure so to notify an Indemnifying Party shall not relieve such Indemnifying Party from any liability that it may have to such Indemnified Party under this Article VIII unless the failure to give such notice materially and adversely prejudices such Indemnifying Party. The Indemnifying Party shall have the right to assume control of the defense of, settle or otherwise dispose of such third-party action on such terms as it deems appropriate; provided, however, that: (a) The Indemnified Party shall be entitled, at its own expense, to participate in the defense of such claimthird-party action (provided, however, that the Indemnifying Party shall pay the attorney's fees of one counsel (provided that if any such third-party action is brought in a jurisdiction other than Texas, the Indemnifying Party shall also pay the attorney's fees of one local counsel) to the Indemnified Party if (i) the employment of separate counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such third-party action, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third-party action, (iii) counsel to the Indemnified Party shall have reasonably concluded that there may be defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party, (iv) counsel to the Indemnified Party and the Indemnifying Party shall have advised their respective clients in writing, with a copy delivered to the other party, that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel) or (v) the third-party action is a proceeding brought by a stockholder of the Company (in such stockholder's name or derivatively on behalf of the Company) in respect of the transactions contemplated by this Agreement); (b) The Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into or making any settlement, compromise, admission or acknowledgment of the validity of such third-party action or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party or if, in the opinion of the Indemnified Party, such settlement, compromise, admission or acknowledgment could have a material adverse effect on its business; (c) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such third-party action; and (d) The Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall cooperate be entitled to have sole control over, the defense or settlement, compromise, admission or acknowledgment of any third-party action (i) as to which the Indemnifying Party fails to assume the defense within a reasonable length of time; or (ii) to the extent reasonably requested by the third- party action seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, assets or financial condition of the Indemnified Party; provided, however, that the Indemnified Party shall make no settlement, compromise, admission or acknowledgment that would give rise to liability on the part of any Indemnifying Party without the prior written consent of such Indemnifying Party. The parties hereto shall extend reasonable cooperation in connection with the defense or prosecution thereof and of any third-party action pursuant to this Article VIII and, in connection therewith, shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedrequested.

Defense of Third Party Claims. Upon receipt by A party (the "Indemnifying Party") indemnifying another party (the "Indemnified Party") pursuant to this Agreement shall have the right, in its discretion and at its election, to assume and control the defense of any Claim provided that the Indemnifying Party notifies the Indemnified Party of such election within a notice from reasonable time period under the circumstances. The Indemnified Party if notified of the Indemnifying Party's election to do so within such reasonable time frame, will permit the Indemnifying Party to assume and control the defense of such Claim in the name of the Indemnified Party in any appropriate administrative or judicial proceedings and will take whatever actions may be reasonably requested of the Indemnified Party to permit the Indemnifying Party to conduct such defense and to settle or to obtain an adjudication of such Claim on the merits, including the signing of pleadings and other document, if necessary; provided, however, that the Indemnifying Party shall defend the Claim with counsel reasonably satisfactory to the Indemnified Party and provide the Indemnified Party with respect evidence reasonably satisfactory to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderthat the Indemnifying Party can satisfy the Claim if it is upheld. In addition to the liability for ultimate settlement or judgment, if any, arising out of any such Claim under this Agreement, the Indemnifying Party shall have be solely responsible for all the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party expenses incurred in connection therewithwith such defense, regardless of the outcome. If However, the Indemnifying Party shall not be responsible for any expenses, including attorneys' fees and costs, incurred by the Indemnified Party to monitor the defense of the Claim by the Indemnifying Party. In the event that the Indemnifying Party does not elect to assume the defense of any such claimClaim under the terms of this Agreement, the Indemnified Party shall have the right be entitled to employ its own counsel conduct such defense, and to settle such Claim (but such settlement, in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If those cases where the Indemnifying Party has assumed the defense of acknowledged and confirmed its indemnification obligation, including its obligation to indemnify for any claim against the Indemnified Partysettlement entered into with its consent, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at with the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party), and the Indemnifying Party's indemnification obligation under this Agreement shall apply to such consent not to be unreasonably withheld, conditioned defense or delayedsettlement.

Defense of Third Party Claims. (a) Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested notice by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right option of defending against the pending Third Party Claim resulting therefrom through engagement of legal counsel of its choice; provided, however, that the Indemnifying Party's choice of legal counsel must be acceptable to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party in its reasonable discretion. In the event the Indemnifying Party elects to takedefend, or prohibits the Indemnifying Party shall keep the Indemnified Party from takingfully informed on a timely basis of the status of the pending Third Party Claim, any action or purports to obligate and the Indemnified PartyParty shall reasonably cooperate in such defense. If the Indemnifying Party elects to defend, the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, if the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim or the Indemnifying Party fails to diligently pursue such defense, the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith shall be considered Losses for purposes of this Agreement. (b) In the event that the Indemnifying Party elects to defend and is unsuccessful in such defense, it shall promptly pay any and all Losses associated with the pending Third Party Claim being so defended. In the event the Indemnifying Party elects not to defend and the Indemnified Party defends, but is unsuccessful, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayedpromptly pay any and all Losses. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in In the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may Indemnifying Party elects not to defend and the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from defends successfully, then the Indemnifying Party shall promptly pay to the Indemnified Party any and all Losses. (c) The Indemnified Party may not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without first obtaining the prior written consent of the Indemnifying Party, unless such settlement, compromise or consent not includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. (d) The Indemnifying Party shall reimburse the Indemnified Party on demand for any payment made by the Indemnified Party at any time after the Initial Closing, based on the final judgment of any court of competent jurisdiction or pursuant to be unreasonably withhelda bona fide compromise or settlement of claims, conditioned demands or delayedactions in respect to any Losses to which the foregoing indemnification relates.

Defense of Third Party Claims. Upon receipt If any Valid Claim arises out of or involves a claim or demand made by any person against the Surviving Corporation or the indemnified party (a "Third Party Claim"), then the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the Indemnifying indemnifying party; provided, that such counsel is not reasonably objected to by the indemnified party; and provided further, that if either (i) any indemnified party reasonably concludes that there may be one or more legal defenses available to it that are different from or in addition to (and are inconsistent with) those available to the indemnifying party, or that a conflict or potential conflict exists between any indemnified party, on the one hand, and any indemnifying party, on the other hand (a "Conflicting Matter"), or (ii) the Third Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified PartyClaim seeks an order, injunction or other equitable relief or relief for other than money damages which the Indemnified Party seeks indemnification hereunderindemnified party reasonably concludes cannot be separated from any related claim for money damages (a "Specific Performance Matter"), the Indemnifying Party shall indemnifying party will not have the right to assume direct the defense of such claimaction on behalf of such indemnified party with respect to such Conflicting Matter or Specific Performance Matter, and the Indemnified Party indemnified party shall cooperate to direct the extent reasonably requested by defense of the Indemnifying Party in defense portion of such claim that constitutes a Conflicting Matter or prosecution thereof and shall furnish such recordsSpecific Performance Matter through counsel (including a local counsel, information and testimony and attend all such conferencesif necessary) of its choosing, discovery proceedings, hearings, trials and appeals as may be reasonably requested by at the Indemnifying Party in connection therewithexpense of the indemnified party. If Should the Indemnifying Party shall indemnifying party so elect to assume the defense of such claima Third Party Claim, the Indemnified Party indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel in any employed by the indemnifying party, it being understood that the indemnifying party shall control such casedefense. Notwithstanding the foregoing, but the indemnifying party shall be liable for the fees and expenses of such counsel employed by the indemnified party for any period during which the indemnifying party has failed to assume the defense thereof (other than during the period prior to the time the indemnified party shall be at the expense have given notice of the Indemnified PartyThird Party Claim as provided above). If the Indemnifying indemnifying party so elects to assume the defense of any Third Party has Claim, the indemnified party shall cooperate with the indemnifying party in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed the defense of any claim against the Indemnified Partya Third Party Claim, the Indemnifying Party indemnified party shall have the right to settle not admit any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to takeliability with respect to, or prohibits the Indemnified settle, compromise or discharge, such Third Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim Claim without the indemnifying party's prior written consent of the Indemnified Party, such (which consent shall not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume indemnifying party shall have assumed the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationThird Party Claim, the Indemnified Party indemnified party shall have the right agree to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through any settlement, compromise or other legal proceeding. In no circumstance discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnifying party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt If a claim for indemnification pursuant to Section 7.2 or 7.3 shall arise from any action made or brought by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified that would reasonably be expected to result in indemnifiable Losses (a “Third Party seeks indemnification hereunderClaim”), the Indemnifying Party shall have the right to may assume the defense of such claim, and the Indemnified Third Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithClaim. If the Indemnifying Party shall elect to assume assumes the defense of such claimthe Third Party Claim, the Indemnified Party defense shall have be conducted by counsel chosen by the Indemnifying Party, who shall be reasonably acceptable to Indemnitee, provided that the Indemnitee shall retain the right to employ its own counsel and participate in the defense of the Third Party Claim at its own expense (which shall not be recoverable from the Indemnifying Party under this ARTICLE VII unless (i) the Indemnitee is advised by counsel reasonably satisfactory to the Indemnifying Party that use of counsel of the Indemnifying Party’s choice would be expected to give rise to a conflict of interest, (ii) the Indemnifying Party shall not have employed counsel to represent the Indemnitee within a reasonable time after notice of the assertion of any such caseclaim or institution of any such action or proceeding, but or (iii) the Indemnifying Party shall authorize the Indemnitee in writing to employ separate counsel at the expense of the Indemnifying Party, in each of which cases the reasonable expenses of counsel to the Indemnitee shall be reimbursed by the Indemnifying Party). In no event shall the Indemnifying Party be obligated to pay the fees and expenses of such more than one counsel (other than local counsel) for all Indemnitees with respect to any claim indemnified under this ARTICLE VII; provided that an Indemnitee shall be entitled to employ separate counsel at the expense of the Indemnified Party. If Indemnifying Party if the Indemnitee is advised by counsel reasonably satisfactory to the Indemnifying Party has assumed that use of such other counsel would give rise to a conflict of interest, in which case the defense reasonable expenses of any claim against counsel to such Indemnitee shall be reimbursed by the Indemnified Indemnifying Party. Notwithstanding the foregoing provisions of this Section 7.4(b), the (i) no Indemnifying Party shall have the right be entitled to settle any claim Third Party Claim for which indemnification has been is sought and is available hereunder; provided thatunder Section 7.2 or 7.3 without the Indemnitee’s prior written consent, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party which shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed, unless it has assumed the defense of such Third Party Claim and as part of the settlement the Indemnitee is released from all liability with respect to the Third Party Claim and the settlement does not impose any equitable remedy on the Indemnitee or require the Indemnitee to admit any fault, culpability or failure to act by or on behalf of the Indemnitee, and (ii) no Indemnitee shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 7.2 or 7.3 without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, unless the Third Party claim is for money damages only and such settlement does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of the Indemnifying Party and as part of such settlement the Indemnifying Party is released from all liability (for indemnification pursuant to this ARTICLE VII and otherwise) with respect to such Third Party Claim. If the Indemnifying Party does not notify the Indemnitee within twenty (20) Business Days after receipt of the Indemnitee’s notice of a Third Party Claim of indemnity hereunder that it elects to assume the control of the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationany Third Party Claim, the Indemnified Party Indemnitee shall have the right to assume control of contest the defense Third Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement and the costs of such claim through counsel of its choice, actions by the reasonable costs of which Indemnitee shall be at paid by the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt (a) In the event of any claim by the Indemnifying a Person not a Party of a notice from the Indemnified Party to this Agreement with respect to any claim of a third party against the Indemnified Party, for matter to which the Indemnified Party seeks indemnification hereunderSections 8.1 or 8.2 hereof relates, the Indemnifying Party indemnified party, after not less than thirty (30) days’ written notice to the indemnifying party containing the terms of the proposed settlement, may make settlement of such claim, and such settlement shall be binding on the Parties hereto for the purposes of this Section 8.3; provided, however, that, if within such thirty (30) day period, the indemnifying party shall have requested the indemnified party to contest any such claim at the expense of the indemnifying party, the indemnified party shall promptly comply, and the indemnifying party shall have the right to assume direct the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense claim or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithany litigation based thereon at its own expense through counsel of its own choosing. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party The indemnified party also shall have the right to employ its own counsel participate in the settlement of any such claim or in any such caselitigation so long as its participation is at its own expense and with the understanding that the indemnifying party may settle in its own discretion at its sole expense so long as any such settlement provides for a complete release and discharge of the indemnified party and does not impose any liabilities or obligations on the indemnified party. Any payment or settlement made by the indemnifying party in such contest, but together with the fees and expenses of such counsel total expense thereof, shall be at binding on the expense indemnified party and the indemnifying party for the purposes of this Section 8.3. (b) In the Indemnified Party. If the Indemnifying Party has assumed the defense of event that any litigation, proceeding, controversy, claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and or other matter is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of initiated by a third party claim against Purchaser or a Seller, and disputes Purchaser or Sellers, as the Indemnified Party’s right case may be, are obligated or potentially obligated to indemnificationindemnify, defend and hold the other harmless under this Article VIII, the Indemnified Party shall have indemnified or potentially indemnified party will reasonably cooperate with the right indemnifying or potentially indemnifying party with respect to assume control of the investigation and defense of such litigation, proceeding, controversy or claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedmatter.

Defense of Third Party Claims. Upon (a) Promptly after receipt by an indemnified party under Section 7.2 or Section 7.3 of notice of the Indemnifying Party assertion or commencement by any third person or entity of any claim, investigation, proceeding or action (collectively, a notice from the Indemnified Party "Claim") with respect to which any indemnifying party may become obligated to indemnify, hold harmless, compensate or reimburse an indemnified party pursuant to this Section 7, such indemnified party will, if a claim is to be made against an indemnifying party under such Section or if the indemnified party intends to take such claim into account in calculating the limitations described in Section 7.2(e) or Section 7.3(b), as applicable, give notice to the indemnifying party of the commencement of such Claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that the indemnifying party may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice. (b) The indemnified party shall afford the indemnifying party the opportunity to assume the defense of any claim as to which notice is given under Section 7.6(a) at the sole expense of a third the indemnifying party. If the indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right so undertakes to assume the defense of such claim, and Claim: (i) the Indemnified Party indemnifying party shall cooperate proceed to defend such Claim in a diligent manner with counsel reasonably satisfactory to the extent reasonably requested by indemnified party; (ii) the Indemnifying Party in defense or prosecution thereof indemnifying party shall keep the indemnified party informed of all material developments and shall furnish events relating to such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by Claim; (iii) the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party indemnified party shall have the right to employ its own counsel participate in any such case, but the fees and expenses defense of such Claim; provided, however, the counsel retained by the indemnified party shall be at the sole cost and expense of the Indemnified Party. If indemnified party, and further provided, that counsel retained by the Indemnifying Party has assumed indemnifying party shall be lead counsel in the defense of any claim against such Claim; and (iv) the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party indemnifying party shall not settle settle, adjust or compromise such claim Claim without the prior written consent of the Indemnified Party, such consent indemnified party which shall not to be unreasonably withheld, conditioned withheld or delayed. . (c) If the Indemnifying Party does not assume indemnifying party fails to promptly undertake the defense of a third such Claim or having undertaken such defense thereafter fails to do so diligently and in good faith, then the indemnified party claim may proceed with the defense of such Claim and: (i) all expenses incurred and disputes relating to the Indemnified Party’s right defense of such Claim shall be borne and paid exclusively by the indemnifying party; (ii) the indemnifying party shall make available to indemnification, the Indemnified Party indemnified party any documents and materials in the possession or control of the indemnifying party that may be necessary to the defense of such Claim; (iii) the indemnified party shall keep the indemnifying party informed of all material developments and events relating to such Claim; and (iv) the indemnified party shall have the right to assume control of settle, adjust or compromise such Claim with the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent indemnifying party which shall not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon receipt (a) The Indemnifying Party shall be entitled, at its option, and expense and with counsel of its selection, to assume and control the defense of any third-party claim, action, suit or proceeding that is subject to any indemnity provided in this Agreement by such Indemnifying Party, subject to the prior approval of the Indemnified Party, which shall not unreasonably be withheld; provided that the Indemnifying Party gives prompt notice of its intention to do so to the Indemnified Party and reimburses the Indemnified Party for the reasonable costs and expenses incurred by the Indemnified Party prior to the assumption by the Indemnifying Party of a notice from such defense. (b) Notwithstanding the provisions of this Section 11.5, unless and until the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party with respect to any claim and assumes control of the defense of a claim, suit, action or proceeding in accordance with Section 11.5(a), the Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate, with counsel of its own selection, any claim, action, suit or proceeding by any third party alleged or asserted against the Indemnified Party in respect of, resulting from, related to or arising out of any matter for which it is entitled to be indemnified hereunder, and the reasonable costs and expenses thereof shall be subject to the indemnification obligations of the Indemnifying Party hereunder. (c) Indemnifying Party shall not be entitled to settle or compromise any such claim, suit, action or proceeding without the prior written consent of the Indemnified Party; provided that after agreeing in writing to indemnify the Indemnified Party, for which the Indemnifying Party may settle or compromise any claim without the approval of the Indemnified Party seeks indemnification hereunder, so long as such claim is solely for monetary damages that are paid in full by the Indemnifying Party shall have and so long as the right Indemnified Party is fully released from liability by the claimant. So long as the Indemnifying Party is fulfilling its obligations pursuant to assume the defense of such claimthis Article XI, and the Indemnified Party shall cooperate not be entitled to settle any such claim, suit, action or proceeding without the extent reasonably requested prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. (d) Following the acknowledgment of the indemnification and the assumption of the defense by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimParty, the Indemnified Party shall have the right to employ its own counsel and such counsel may participate in any such caseaction, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If , when and as occurred, unless (i) the employment of counsel by the Indemnified Party has been authorized in writing by the Indemnifying Party and the Indemnifying Party has assumed agreed to pay such fees and expenses, (ii) the Indemnified Party shall have reasonably concluded, upon advice of counsel, that there would be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to takeaction, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then (iii) the Indemnifying Party shall not settle such claim without the prior written consent of in fact have employed independent counsel reasonably satisfactory to the Indemnified Party, such consent not Party to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim such action and disputes shall have been so notified by the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt If any claim set forth in the Notice of Claim given by an Indemnitee pursuant to Section 8.5 hereof is a claim asserted by a third party, the Indemnitor shall have 30 days after the date that the Notice of Claim is given by the Indemnifying Party Indemnitee to notify the Indemnitee in writing of a notice from the Indemnified Party with respect Indemnitor's election to any claim of a defend such third party against claim on behalf of the Indemnified Party, for which Indemnitee. If the Indemnified Party seeks indemnification hereunderIndemnitor elects to defend such third party claim, the Indemnifying Party Indemnitee shall make available to the Indemnitor and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnitee's possession or under the Indemnitee's control as is reasonably required by the Indemnitor and shall otherwise cooperate with and assist the Indemnitor in the defense of such third party claim, and so long as the Indemnitor is defending such third party claim in good faith, the Indemnitee shall not pay, settle or compromise such third party claim. If the Indemnitor elects to defend such third party claim, the Indemnitee shall have the right to participate in the defense of such third party claim, at the Indemnitee's own expense. In the event, however, that the Indemnitee reasonably determines that representation by counsel to the Indemnitor of both the Indemnitor and the Indemnitee may present such counsel with a conflict of interest, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and the Indemnitor will, subject to the provisions of this Article 8, pay the reasonable fees and disbursements of such counsel. If the Indemnitor does not elect to defend such third party claim or does not defend such third party claim in good faith, the Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnitor's expense, to defend such third party claim; provided, however, that such Indemnitee's defense of or its participation in the defense of any such third party claim shall not in any way diminish or lessen the indemnification obligations of the Indemnitor under this Article 8. If the Indemnitor shall assume the defense of such a third party claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party it shall not settle such claim without the prior written consent of the Indemnified Party, Indemnitee (i) unless such consent not settlement includes as an unconditional term thereof the giving by the claimant of a release of the Indemnitee from all Liability with respect to such claim or (ii) if such settlement involves the imposition of equitable remedies or the imposition of any obligations on such Indemnitee other than financial obligations for which such Indemnitee will be unreasonably withheld, conditioned or delayedindemnified hereunder. If the Indemnifying Party does not assume the defense of Indemnitee is defending a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of it will not settle such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying PartyIndemnitor, such consent which will not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon receipt of a Litigation Notice, the applicable Indemnifying Party shall have thirty (30) calendar days after receipt of a Litigation Notice to notify the Claimant in writing that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”) with legal counsel reasonably satisfactory to the applicable Indemnified Parties so long as the Third Party Claim (i) seeks solely money damages (and not injunctive or other equitable relief) and, in the event that the Seller or any of its Affiliates would be the Indemnifying Party, (ii) will have no continuing material adverse effect on the Business or the Company. In the event the Indemnifying Party so assumes the conduct and control of any such Third Party Claim, such assumption of the conduct and control by the Indemnifying Party shall conclusively establish for purposes of a notice from this Agreement that all Indemnity Losses incurred by the Indemnified Parties in connection with such Third Party with respect Claim are within the scope of and subject to any claim indemnification hereunder subject to the limitations set forth in this ‎Article VI. If the Indemnifying Party does not give the foregoing Election Notice during such thirty (30) day period, then the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Third Party Claim in the exercise of a third party against its reasonable discretion. If the Indemnified PartyIndemnifying Party timely gives the foregoing Election Notice, for which the Indemnified Party seeks indemnification hereunder, then the Indemnifying Party shall have the right to assume undertake, conduct and control, at the defense Indemnifying Party’s sole reasonable cost and expense, the conduct and settlement of such claimThird Party Claim, and the Indemnified Party Claimant shall cooperate to the extent reasonably requested by cooperate, at the Indemnifying Party in defense or prosecution thereof Party’s sole reasonable cost and shall furnish such recordsexpense, information including by providing reasonable access during regular business hours to records and testimony and attend all such conferencesPersonnel of the Company, discovery proceedingsas applicable, hearings, trials and appeals as may be reasonably requested by to the Indemnifying Party in connection therewith. If ; provided, however, that (i) the Indemnifying Party shall elect permit the Claimant to assume participate in such conduct or settlement through legal counsel chosen by the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseClaimant, but the fees and expenses of such legal counsel shall be at borne solely by the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified PartyClaimant, and (ii) the Indemnifying Party shall have the right authority to compromise or settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified PartyClaimant if such compromise or settlement (1) contains an unconditional release from all Liability of the Claimant and its Affiliates with respect to such Third Party Claim, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party (2) does not assume result in any Liability to or equitable relief against the defense Claimant and its Affiliates, (3) would not restrict the future activity of the Claimant or any of its Affiliates and (4) would not result in the admission or finding of a third party claim and disputes violation of Law by the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel Claimant or any of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedAffiliates.

Defense of Third Party Claims. Upon receipt If the claim or demand set forth in the Notice of Claim given by Indemnitee pursuant to Section 8.5 hereof is a claim or demand asserted by a third party, Indemnitor shall have fifteen (15) business days after the date on which such Notice of Claim is given by the Indemnifying Party Indemnitee to notify Indemnitee in writing of a notice from the Indemnified Party with respect Indemnitor's election to any claim of a defend such third party against claim or demand on behalf of Indemnitee. If Indemnitor elects to defend such third party claim or demand, Indemnitee shall make available to Indemnitor and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnified PartyIndemnitee's possession or under the Indemnitee's control as is reasonably required by Indemnitor and shall otherwise cooperate with and assist Indemnitor in the defense of such third party claim in good faith. Indemnitee shall not pay, for which the Indemnified Party seeks indemnification hereundersettle or compromise such third party claim or demand. If Indemnitor elects to defend such third party claim or demand, the Indemnifying Party Indemnitee shall have the right to assume participate in the defense of such claimthird party claim or demand, and at Indemnitee's own expense. In the Indemnified Party shall cooperate event, however, that the named parties to the extent action or proceeding include both Indemnitor and Indemnitee and Indemnitee reasonably requested determines that representation by counsel to Indemnitor of both Indemnitor and Indemnitee may present such counsel with a conflict of interest, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and Indemnitor will pay the Indemnifying Party in defense or prosecution thereof reasonable fees and shall furnish disbursements of such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithcounsel. If the Indemnifying Party shall Indemnitor does not elect to assume the defense of defend such claimthird party claim or demand or does not defend such third party claim or demand in good faith, the Indemnified Party Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at Indemnitor's expense, to employ its own counsel defend such third party claim or demand; provided, however, that (a) Indemnitor shall not have any obligation to participate in the defense of, or defend, any such case, but the fees third party claim or demand; and expenses (b) Indemnitee's defense of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed or its participation in the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes or demand shall not in any way diminish or lessen the Indemnified Party’s right to indemnification, obligations of Indemnitor under the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right agreements of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedset forth in this Article VIII.

Defense of Third Party Claims. Upon receipt If any claim set forth in the Notice of Claim given by an Indemnitee pursuant to Section 8.5 hereof is a claim asserted by a third party, the Indemnitor shall have thirty (30) days after the date that the Notice of Claim is given by the Indemnifying Party Indemnitee to notify the Indemnitee in writing of a notice from the Indemnified Party with respect Indemnitor's election to any claim of a defend such third party against claim on behalf of the Indemnified Party, for which Indemnitee. If the Indemnified Party seeks indemnification hereunderIndemnitor elects to defend such third party claim, the Indemnifying Party Indemnitee shall make available to the Indemnitor and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnitee's possession or under the Indemnitee's control as is reasonably required by the Indemnitor and shall otherwise cooperate with and assist the Indemnitor in the defense of such third party claim, and so long as the Indemnitor is defending such third party claim in good faith, the Indemnitee shall not pay, settle or compromise such third party claim. If the Indemnitor elects to defend such third party claim, the Indemnitee shall have the right to participate in the defense of such third party claim, at the Indemnitee's own expense. In the event, however, that the Indemnitee reasonably determines that representation by counsel to the Indemnitor of both the Indemnitor and the Indemnitee may present such counsel with a conflict of interest, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and the Indemnitor will, subject to the provisions of this Article 8, pay the reasonable fees and disbursements of such counsel. If the Indemnitor does not elect to defend such third party claim or does not defend such third party claim in good faith, the Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnitor's expense, to defend such third party claim; provided, however, that such Indemnitee's defense of or its participation in the defense of any such third party claim shall not in any way diminish or lessen the indemnification obligations of the Indemnitor under this Article 8. If the Indemnitor shall assume the defense of such a third party claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party it shall not settle such claim without the prior written consent of the Indemnified Party, Indemnitee (a) unless such consent not settlement includes as an unconditional term thereof the giving by the claimant of a release of the Indemnitee from all Liability with respect to such claim or (b) if such settlement involves the imposition of equitable remedies or the imposition of any obligations on such Indemnitee other than financial obligations for which such Indemnitee will be unreasonably withheld, conditioned or delayedindemnified hereunder. If the Indemnifying Party does not assume the defense of Indemnitee is defending a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of it will not settle such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying PartyIndemnitor, such consent which will not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against any party entitled to the Indemnified Partybenefit of indemnity hereunder with respect thereto, for which written notice thereof shall be given to the Indemnified Party seeks indemnifying party as promptly as practicable (and in any event within 15 calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the Indemnifying Party extent that the indemnifying party has been materially damaged by such failure as described in the provision to Section 7.2(c)). After such notice, if (1) the indemnifying party shall have acknowledge in writing to the right indemnified party that the indemnifying party is obligated under the terms of its indemnity hereunder to fully indemnify the indemnified party in connection with such lawsuit or action, and (2) such third party claim is solely for monetary damages, and is not brought by a customer, Governmental Entity or a supplier listed on Schedule 3.20, then the indemnifying party shall be entitled, if it elects to do so, at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage legal counsel of its own choice, but, in any event, reasonably acceptable to the indemnified party, to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party’s cost, risk and expense, to separate counsel of its own choosing. The indemnifying party shall not, without the written consent of the indemnified party, which shall not be unreasonably withheld, conditioned or delayed, (x) settle or compromise any Claim or consent to the entry of any judgment which does not include an unconditional written release by the claimant or plaintiff of the indemnified party from all liability in respect of such Claim or (y) settle or compromise any Claim if the settlement imposes equitable remedies or obligations on the indemnified party other than financial obligations for which such indemnified party will be fully indemnified hereunder. No Claim which is being defended in good faith by the indemnifying party in accordance with the terms of this Agreement shall be settled or compromised by the indemnified party without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. If the indemnifying party fails to assume the defense of such claimlawsuit or action within 30 calendar days after receipt of the Claim Notice or is not permitted to assume such defense pursuant to this Section 7.2(d), and the Indemnified Party shall cooperate indemnified party against which such lawsuit or action has been asserted will (upon delivering notice to such effect to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall indemnifying party) have the right to employ its own counsel in any such caseundertake, but at the fees indemnifying party’s cost and expenses expense, the defense, compromise or settlement of such counsel shall be at lawsuit or action on behalf of and for the expense account and risk of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Partyindemnifying party; provided, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thathowever, to the extent that such settlement requires the Indemnified Party to take, lawsuit or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim be compromised or settled without the prior written consent of the Indemnified Partyindemnifying party, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third indemnified party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of settles or compromises such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise lawsuit or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party action without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, the indemnifying party will bear no liability hereunder for or with respect to such consent not to be lawsuit or action unless the indemnifying party unreasonably withheld, conditioned or delayeddelayed its consent. In the event either party assumes the defense of a particular lawsuit or action in the manner contemplated above, the party assuming such defense will keep the other party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 7.2 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third The indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense conduct and control, through counsel of such claimtheir own choosing, and the Indemnified Party shall cooperate reasonably acceptable to the extent reasonably requested by the Indemnifying Party in defense indemnified party, any third party Legal Action or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseother Claim, but the fees indemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that if the indemnifying party shall fail to defend any such Legal Action or other Claim, then the indemnified party may defend, through counsel of its own choosing, such Legal Action or other Claim, and (so long as it gives the indemnifying party at least fifteen (15) days' written notice of the terms of the proposed settlement thereof and permits the indemnifying party to then undertake the defense thereof) settle such Legal Action or other Claim and to recover the amount of such settlement or of any judgment and the reasonable costs and expenses of such counsel defense. The indemnifying party shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to not compromise or settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, Legal Action or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim other Claim without the prior written consent of the Indemnified Partyindemnified party; provided, however, that if the indemnified party fails or refuses to consent in writing to any compromise of settlement proposed by the indemnifying party and agreed to in writing by the claimant in such consent Legal Action or other Claim (the "Settlement Proposal") within ten (10) business days after receipt of written notice of all of the material terms and conditions of the Settlement Proposal, and such terms and conditions (a) include a full release of the indemnified party from the Legal Action or other Claim which is the subject of the Settlement Proposal, and (b) if the indemnified party is ATS, do not to be unreasonably withheldinclude any term or condition which would restrict in any material manner the continued ownership or operations of the Diablo Assets or the conduct of the Diablo Business in substantially the manner then being theretofore owned, conditioned or delayed. If operated and conducted by ATS, then, unless the Indemnifying Party does not assume indemnifying party forthwith withdraws the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationSettlement Proposal, the Indemnified Party indemnified party (i) shall have the right but not the obligation to assume control undertake the conduct of the defense of such claim through counsel Legal Action or other Claim, and (ii) whether or not it shall so undertake the defense of its choicesuch Legal Action or other Claim, shall bear, and shall indemnify and hold the reasonable indemnifying party harmless from, all Loss and Expense arising from such Legal Action or other Claim (to the extent not theretofore (x) accrued with respect to the costs and expenses of which shall be at the Indemnifying Party’s expense defense of such Legal Action or other Claim or (y) paid with respect to such Legal Action or other Claim) in excess of the amount contained in the event Settlement Proposal, it being understood, in such event, that the Indemnified Party’s right indemnifying party shall bear all Loss and Expense, including subsequently incurred Loss and Expense (including without limitation those attributable to legal fees and expenses) up to the amount contained in the Settlement Proposal, even if the ultimate disposition of indemnification is ultimately established through settlement, compromise such Legal Action or other legal proceeding. In no circumstance may Claim results in payments to the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from claimant of less than those contained in the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedSettlement Proposal.

Defense of Third Party Claims. Upon receipt by the Except as otherwise expressly provided herein, Indemnifying Party of a notice from the shall be entitled at its cost and expense to contest and defend by all appropriate legal proceedings in connection with any Third Party Action with respect to which it is called upon to indemnify Indemnified Party under the provisions of this Agreement; provided, however, that with respect to any claim Claim arising from the assertion of any Third Party Action, notice of the intention so to contest shall be delivered by Indemnifying Party to Indemnified Party within twenty (20) days from the date of receipt by Indemnifying Party of notice from Indemnified of the assertion of the Third Party Action. Any such contest with respect to a third party against Third Party Action may be conducted in the name and on behalf of Indemnifying Party or the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderas appropriate. Except as otherwise expressly provided herein, the such contest shall be conducted by attorneys employed by Indemnifying Party shall have the right to assume the defense of such claimParty, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the but Indemnified Party shall have the right to employ participate in such proceedings and to be represented by attorneys of its own counsel in any such case, but the fees choosing at its cost and expenses of such counsel shall be at the expense of the Indemnified Partyexpense. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Partyafter notice as provided for herein, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume elect to contest any Third Party Action as provided in this Section 6.5, Indemnifying Party shall be bound by the defense of a third party claim result obtained with respect thereto by Indemnified Party and disputes the Indemnified Party’s right to indemnification, the Indemnified Party may (but shall have no obligation to) contest any such Third Party Action or settle or admit liability with respect thereto, all for the right account of Indemnifying Party. At any time after the commencement of defense of any such Third Party Action, Indemnifying Party may request Indemnified Party to assume control agree in writing to the abandonment of such contest or the payment or compromise by Indemnifying Party of the defense asserted Third Party Action whereupon such action shall be taken unless Indemnified Party so determines that the contest should be continued, and so notifies Indemnifying Party in writing within fifteen (15) days of such claim through counsel of its choice, the reasonable costs of which shall be at the request from Indemnifying Party’s expense in . In the event that Indemnified Party determines that the contest should be continued, Indemnifying Party shall be liable with respect to such Third Party Action only to the extent of the lesser of (i) the amount which the third party taking the Third Party Action had agreed to accept in payment or compromise as of the time Indemnifying Party made its request therefor to Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party (ii) such amount for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent may be liable with respect to such Claim by reason of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedprovisions hereof.

Defense of Third Party Claims. Upon receipt (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third–party claim or any threatened third–party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third–party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third–party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 7.06(a) with respect to such third–party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third–party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of any claim against the Indemnified Partyan indemnification third–party claim, then: (i) Except as set forth in Section 7.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s Representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided, that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and (iii) The Indemnified Party shall not be required to admit any liability with respect to such third–party claim. (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third–party claim within thirty (30) days of receipt of notice of such claim in accordance with Section 7.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third–party claim following any such acceptance, (iii) the third–party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one (1) or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party or (v) the third–party claim includes damages that could exceed the limitations in Section 7.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third–party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third–party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third–party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this Article VII in respect of such third–party claim, then the Losses recoverable by the Indemnified Party shall include all reasonable costs and expenses, including the defense set forth herein. (c) No third–party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No third–party claim may be settled by the Indemnifying Party without notice to, and the written consent of, the Indemnified Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 7.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt (i) If a Third-Party Claim is made against an Indemnified Party, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party of a notice from the Indemnified Party with respect and reasonably satisfactory to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, . Should the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall so elect to assume the defense of a Third-Party Claim, the Indemnifying Party will not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such claimdefense, the Indemnified Party shall have the right to participate in defense thereof and to employ counsel, at its own expense, separate from the counsel in any employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such case, but defense. The Indemnifying Party shall be liable for the fees and expenses of such counsel shall be at the expense of employed by the Indemnified Party. If Party for any period during which the Indemnifying Party has not assumed the defense thereof. The Parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third-Party Claim, and the use of reasonable efforts to make employees and representatives available on a mutually convenient basis to provide additional information and explanation of any claim against the Indemnified Party, material provided hereunder. (ii) Whether or not the Indemnifying Party shall have assumed the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatdefense of a Third-Party Claim, to the extent that such settlement requires the Indemnified Party to takeshall not admit any liability with respect to, or prohibits the Indemnified settle, compromise or discharge, such Third-Party from taking, any action or purports to obligate the Indemnified Party, then Claim without the Indemnifying Party Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may pay, settle such claim or compromise a Third-Party Claim without the prior written consent of the Indemnified Party, so long as such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense settlement includes: (i) an unconditional release of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense from all liability in respect of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may Third-Party Claim; (ii) does not subject the Indemnified Party compromise to any injunctive relief or settle other equitable remedy; and (iii) does not include a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent statement or admission of the Indemnifying fault, culpability or failure to act by or on behalf of any Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third-party claim or any threatened third-party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third-party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third-party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 8.06(a) with respect to such third-party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third-party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of an indemnification for any claim against the Indemnified Partysuch third-party claim, then: (i) Except as set forth in Section 8.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and (iii) The Indemnified Party shall not be required to admit any liability with respect to such third-party claim. (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third-party claim within thirty (30) days of receipt of notice of such claim in accordance with Section 8.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third-party claim following any such acceptance, (iii) the third-party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party, or (v) the third-party claim includes damages that could exceed the limitations in Section 8.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third-party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third-party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third-party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this ARTICLE VIII in respect of such third-party claim, then the Losses recoverable by Indemnified Party shall include all costs and expenses, including of the defense set forth herein. (c) No third-party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No third-party claim may be settled by the Indemnifying Party without notice to, and the written consent of, the Indemnified Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 8.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt In the event of the assertion or commencement by any Person (other than any party hereto) of any claim or Proceeding (whether against the Indemnifying Party of a notice from the Indemnified Party Company, Carlyle or Conexant, or against any other Indemnitee or against any other Person) with respect to which any claim of a third party against the Indemnified Partyhereto may become obligated to indemnify, for which the Indemnified Party seeks indemnification hereunderhold harmless, compensate or reimburse any Indemnitee pursuant to this Section 8, the Indemnifying Party Indemnitee shall have the right right, at its election, to either (i) assume the defense of such claim at the Indemnitee’s sole expense, or (ii) designate the indemnifying party to assume the defense of such claim, and claim or Proceeding at the Indemnified Party shall cooperate to sole expense of the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithindemnifying party. If the Indemnifying Party shall elect Indemnitee so elects to designate the indemnifying party to assume the defense of any such claim, claim or Proceeding: (a) the Indemnified Party indemnifying party shall proceed to defend such claim or Proceeding in a diligent manner with counsel reasonably satisfactory to the Indemnitee; (b) the Indemnitee shall make available to the indemnifying party any non-privileged documents and materials in the possession of the Indemnitee that may be necessary to the defense of such claim or Proceeding; (c) the indemnifying party shall keep the Indemnitee informed of all material developments and events relating to such claim or Proceeding; (d) the Indemnitee (at its own expense) shall have the right to employ its own counsel participate in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any such claim against or Proceeding; (e) the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party indemnifying party shall not settle settle, adjust or compromise such claim or Proceeding without the prior written consent of the Indemnified Party, such consent not Indemnitee; and (f) the Indemnitee may at any time (notwithstanding the prior designation of the indemnifying party to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third such claim or Proceeding) assume the defense of such claim or Proceeding at its own expense. If the Indemnitee does not elect to designate the indemnifying party to assume the defense of any such claim and disputes or Proceeding (or if, after initially designating the Indemnified Party’s right indemnifying party to indemnificationassume such defense, the Indemnified Party Indemnitee elects to assume such defense), the Indemnitee may proceed with the defense of such claim or Proceeding on its own. If the Indemnitee so proceeds with the defense of any such claim or Proceeding on its own: (i) all expenses relating to the defense of such claim or Proceeding (whether or not incurred by the Indemnitee) shall be borne and paid exclusively by the Indemnitee; (ii) the indemnifying party shall make available to the Indemnitee any documents and materials in the possession or control of either of the indemnifying party that may be necessary to the defense of such claim or Proceeding; (iii) the Indemnitee shall keep the indemnifying party informed of all material developments and events relating to such claim or Proceeding; and (iv) the Indemnitee shall have the right to assume control of the defense of settle, adjust or compromise such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim Proceeding with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party; provided, however, that the indemnifying party shall not unreasonably withhold such consent. Such consent will not be considered to be have been unreasonably withheldwithheld if the settlement, conditioned adjustment or delayedcompromise does not provide for a full release of the indemnifying party from any further claims with respect to the matter at issue. The foregoing provisions of this Section 8.6 shall not apply to any claim or Proceeding subject to indemnification pursuant to Section 8.10.

Defense of Third Party Claims. Upon receipt If the Independent Committee determines to make a claim for indemnification on behalf of the PAPI Parties under Section 10.2 or any CAMAC Party makes a claim for indemnification under Section 10.3 (each as applicable an “Indemnitee”), the Independent Committee or such CAMAC Party as applicable shall notify the indemnifying party (an “Indemnitor”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand or other claim against the Indemnitee (if by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against party), describing the Indemnified Partyclaim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail (such written notice, an “Indemnification Notice”); provided that the failure to so notify an Indemnitor shall not relieve the Indemnitor of its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the damages for which the Indemnified Party seeks Indemnitor is obligated to be greater than such damages would have been had the Indemnitee given the Indemnitor prompt notice hereunder. Any Indemnitor shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification hereunderat such Indemnitor’s expense, the Indemnifying Party and at its option shall have the right be entitled to assume the defense of such claim, and the Indemnified Party shall cooperate thereof by appointing a reputable counsel reasonably acceptable to the extent reasonably requested by Indemnitee to be the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party lead counsel in connection therewith. If with such defense; provided, that the Indemnifying Party Indemnitee shall elect be entitled to assume participate in the defense of such claim, the Indemnified Party shall have the right claim and to employ counsel of its own counsel in any choice for such casepurpose; provided, but however, that the fees and expenses of such separate counsel shall be at borne by the expense of the Indemnified Party. Indemnitee and shall not be recoverable from such Indemnitor under this Article X. If the Indemnifying Party has assumed Indemnitor shall control the defense of any claim against the Indemnified Partysuch claim, the Indemnifying Party Indemnitor shall have the right be entitled to settle any claim for which indemnification has been sought and is available hereundersuch claims; provided thatprovided, to that the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party Indemnitor shall not settle such claim without obtain the prior written consent of the Indemnified Party, such Indemnitee (which consent shall not to be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all liabilities and obligations with respect to such claim. If the Indemnifying Party does Indemnitor assumes such defense, the Indemnitor shall not be liable for any amount required to be paid by the Indemnitee that exceeds, where the Indemnitee has unreasonably withheld or delayed consent in connection with the proposed compromise or settlement of a third party claim, the amount for which that third party claim could have been settled pursuant to that proposed compromise or settlement. In all cases, the Indemnitee shall provide its reasonable cooperation with the Indemnitor in defense of claims or litigation, including by making employees, information and documentation reasonably available. If the Indemnitor shall not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationany such action, lawsuit, proceeding, investigation or other claim, the Indemnified Party shall have the right to assume control of the defense of Indemnitee may defend against such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event matter as it deems appropriate; provided that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance Indemnitee may not settle any such matter without the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such Indemnitor (which consent shall not to be unreasonably withheld, conditioned or delayed) if the Indemnitee is seeking or will seek indemnification hereunder with respect to such matter.

Defense of Third Party Claims. Upon receipt If the Indemnified ----------------------------- Party's claim for indemnification is based on a claim, demand, action or proceeding, judicial or otherwise, brought by a third party, and except in the event that a party is disputing that it has any indemnification obligation to the other party (in which event the provisions of Section 4.03 below shall apply), within the thirty (30) day period referred to in Section 4.01 above, (a) the Indemnified Party may, by giving written notice thereof to the Indemnifying Party, require the Indemnifying Party of a to assume, or (b) the Indemnifying Party may at its option and by giving written notice from thereof to the Indemnified Party with respect elect to any claim of a third party against the Indemnified Partyassume, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, third-party claim at its sole cost and the Indemnified Party expense. Any such contest shall cooperate to the extent reasonably requested be conducted by attorneys employed by the Indemnifying Party in defense or prosecution thereof and shall furnish such recordsParty, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, but the Indemnified Party shall have the right to employ participate in such proceedings and to be represented by attorneys of its own counsel in any such case, but the fees and expenses of such counsel shall be choosing at the expense of the Indemnified Party's sole cost and expense. If the Indemnifying Party has assumed assumes the defense of any claim against the Indemnified Partysuch third-party claim, the Indemnifying Party shall have may settle or compromise the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party so long as such settlement does not impose any obligation or restriction of any nature on the Indemnified Party. The Indemnifying Party shall pay to the Indemnified Party in cash the amount for which the Indemnified Party is entitled to be indemnified within fifteen (15) days after the settlement or compromise of such third-party claim or the final unappealable judgment of a court of competent jurisdiction. If the Indemnified Party does not require the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed. If and the Indemnifying Party does not elect, to assume the defense of a third any such third-party claim and disputes claim, the Indemnifying Party shall be bound by the result obtained with respect thereto by the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by An Indemnified Party will give prompt written notice to the Indemnifying Party of a notice from the Indemnified Party with respect to commencement or assertion of any action, proceeding, demand, or claim of by a third party against the Indemnified Party(collectively, for a “Third Party Action”) in respect of which the such Indemnified Party seeks will seek indemnification hereunder, . Any failure so to notify the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by will not relieve the Indemnifying Party in defense from any liability that it, he, or prosecution thereof she may have to such Indemnified Party under this Article IX unless the failure to give such notice materially and shall furnish adversely prejudices such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party. The Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall will have the right to assume control of the defense of, settle, or otherwise dispose of such claim through Third Party Action on such terms as it deems appropriate; provided, that: (a) The Indemnified Party will be entitled, at its own expense, to participate in the defense of such Third Party Action (provided, that the Indemnifying Party will pay the attorneys’ fees of the Indemnified Party if (i) the employment of separate counsel will have been authorized in writing by the Indemnifying Party in connection with the defense of its choice, such Third Party Action; (ii) the reasonable costs Indemnifying Party will not have employed counsel reasonably satisfactory to the Indemnified Party to have charge of which shall be at such Third Party Action; (iii) the Indemnified Party will have reasonably concluded that there are defenses available to such Indemnified Party that are different from or in addition to those available to the Indemnifying Party’s expense in , and the event that inability of the Indemnified Party to assert such defenses would be significantly detrimental to the defense of the Indemnified Party or (iv) the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may counsel will have advised the Indemnified Party compromise or settle a claim in writing, with a third party for which copy delivered to Indemnifying Party, that there is a conflict of interest that could make it seeks indemnification from the inappropriate under applicable standards of professional conduct to have common counsel); (b) The Indemnifying Party will obtain the prior written approval (which shall not be unreasonably withheld) of the Indemnified Party before entering into or making any settlement, compromise, admission, or acknowledgment of the validity of such Third Party Action or any liability in respect thereof or entailing any relief that is injunctive, equitable or non-monetary in nature, and the Indemnified Party will not consent to the entry of any judgment or enter into any settlement respecting any Third Party Action without first obtaining the prior written consent of the Indemnifying Party, such consent Party (which shall not to be unreasonably withheld); (c) The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability; (d) The Indemnifying Party will not be entitled to control (but will be entitled to participate at its own expense in the defense of), conditioned and the Indemnified Party will be entitled to have sole control over, the defense or delayedsettlement, compromise, admission, or acknowledgment of any Third Party Action (i) relating to any Tax to be collected from a Indemnified Party or an Affiliate of a Indemnified Party; (ii) as to which the Indemnifying Party fails to assume the defense within a reasonable length of time (and in any event within 30 days); or (iii) to the extent the Third Party Action seeks an order, injunction, or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, assets, or financial condition of the Indemnified Party; and (e) The Parties will extend reasonable cooperation in connection with the defense of any Third Party Action pursuant to this Article IX and, in connection therewith, will furnish such records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be reasonably requested.

Defense of Third Party Claims. Upon receipt by (i) In the Indemnifying event that any Third Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification Claim is made or commenced and an Indemnification Claim is delivered hereunder, the Indemnifying Party shall have 30 days from receipt of the right Indemnification Claim (the "Notice Period") to notify the Indemnitee whether or not the Indemnifying Party will elect to assume the defense and management of such claimThird Party Claim, and prior to such time as it has been notified by the Indemnified Indemnifying Party as to its intention, the Indemnitee shall cooperate take all reasonable actions to preserve its defenses. Election of the extent reasonably requested Indemnifying Party to defend and manage a Third Party Claim shall not be construed to be an admission as to liability for indemnification hereunder. All costs and expenses incurred by the Indemnifying Party in defending and managing such Third Party Claim shall be a Liability of, and shall be paid by, the Indemnifying Party; provided, however, that the amount of such costs and expenses that shall be a Liability of the Indemnifying Party hereunder shall be subject to the limitations set forth in Section 8.4. In the event that the Indemnifying Party notifies the Indemnitee within the Notice Period of its election to assume such defense and management, then such Indemnitee shall permit such Indemnifying Party to assume and control such defense and management, at such Indemnifying Party's expense, and such Indemnifying Party shall not be liable to such Indemnitee for any legal or other expenses subsequently incurred by such Indemnitee in connection with the defense or prosecution thereof management of such Third Party Claim (other than reasonable out-of-pocket costs of investigation). If such Indemnitee desires to participate in any such defense and management, it may do so at its sole cost and expense. The Indemnitee shall furnish such recordsnot settle, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested admit or in any other way materially prejudice a Third Party Claim for which it is indemnified by the Indemnifying Party without the written consent of the Indemnifying Party. Notwithstanding the foregoing, the Indemnitee shall have the sole right to defend, settle or compromise any Third Party Claim with respect to which it has agreed in connection therewith. writing to waive its right to indemnification pursuant to this Agreement. (ii) If the Indemnifying Party shall elect elects not to assume defend the defense of Indemnitee against such claim, the Indemnified Third Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified PartyClaim, then the Indemnifying Party Indemnitee shall not settle such claim without act reasonably and in accordance with its good faith business judgment with respect thereto, and may only consent to the prior written consent entry of the Indemnified Partyany judgment upon, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim or compromise, any such Third Party Claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party. The amount required to be paid in respect of any such Third Party Claim, or, if the same be contested by the Indemnitee, then that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense) shall be the Liability of the Indemnifying Party hereunder, subject to the limitations set forth in Section 8.4. If the Indemnifying Party has elected to assume the defense and management of such Third Party Claim pursuant to Section 8.3(c)(i), such Indemnifying Party shall be entitled to consent to the entry of any judgment upon, or enter into any settlement or compromise of, such Third Party Claim, which judgment, settlement or compromise shall be binding upon such Indemnitee without such Indemnitee's consent, provided that the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement or compromise that provides for injunctive or non-monetary relief affecting such Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release of all liability with respect to such Third Party Claim, without the prior written consent of such Indemnitee, which consent shall not be unreasonably withheld, conditioned withheld or delayed. (iii) Such Indemnitee and such Related Party, on the one hand, and such Indemnifying Party, on the other hand, shall cooperate with each other in all reasonable respects in connection with the defense and management of any Third Party Claim, and render such assistance to each other as may be reasonably requested in order to ensure the proper and adequate defense and management thereof, including making available records relating to such Third Party Claim and furnishing, without expense to such Indemnifying Party, such employees of the Indemnitee and such Related Party as may be reasonably necessary for the preparation of such defense and management or for testimony as witnesses.

Defense of Third Party Claims. Upon receipt (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third-party claim or any threatened third-party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third-party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third-party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 8.06(a) with respect to such third-party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third-party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of any claim against the Indemnified Partyan indemnification third-party claim, then: (i) Except as set forth in Section 8.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s Representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided, that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and (iii) The Indemnified Party shall not be required to admit any liability with respect to such third-party claim. (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third-party claim within forty-five (45) days of receipt of notice of such claim in accordance with Section 8.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third-party claim following any such acceptance, (iii) the third-party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one (1) or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party or (v) the third-party claim includes damages that could exceed the limitations in Section 8.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third-party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third-party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third-party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this Article VIII in respect of such third-party claim, then the Losses recoverable by the Indemnified Party shall include all reasonable costs and expenses, including the defense set forth herein. (c) No third-party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 8.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by the Indemnifying If a Third Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderClaim shall arise, the Indemnifying Party shall have the right to may assume the defense of such Third Party Claim by providing written notice to the Indemnified Party within thirty (30) days after receipt of the notice of such claim. The Person that shall control the defense of any such Third Party Claim (the “Controlling Party”) shall select counsel, contractors and consultants of recognized standing and competence after consultation with the other Party and shall take all steps reasonably necessary in the defense or settlement of such Third Party Claim, provided that the Indemnified Party shall cooperate retain the right to employ its own counsel and participate in the extent reasonably requested by defense of the Third Party Claim at its own expense (which shall not be recoverable from the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as under this Article XII unless (i) the Indemnified Party is advised by counsel that (x) there may be reasonably requested by one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to or in connection therewith. If conflict with the interests of the Indemnified Party, or (y) that representation of both parties by the same counsel would be otherwise inappropriate under applicable standards of professional conduct, (ii) the Indemnifying Party shall elect not have employed counsel to assume represent the Indemnified Party within thirty (30) Business Days after notice of the assertion of any such claim or institution of any such Third Party Claim, (iii) the Indemnifying Party shall authorize the Indemnified Party in writing to employ separate counsel at the expense of the Indemnifying Party, or (iv) such Third Party Claim relates to or arises in connection with any criminal action, in each of which cases the reasonable expenses of counsel to the Indemnified Party shall be reimbursed by the Indemnifying Party). Notwithstanding the foregoing provisions of this Section 12.05, (A) no Indemnifying Party shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 12.02 or Section 12.03 without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, unless it has assumed the defense of such claimThird Party Claim and as a part of the settlement the Indemnified Party is released from all liability with respect to the Third Party Claim and the settlement does not impose any financial or equitable remedy on the Indemnified Party or any Asset, as applicable, does not cause any restriction or condition that would apply to or materially adversely affect the Indemnified Party or the conduct of the Indemnified Party’s business or require the Indemnified Party to admit any fault, wrongdoing, violation, culpability or failure to act by or on behalf of the Indemnified Party, and (B) no Indemnified Party shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 12.02 or Section 12.03 without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Seller or Parent, as the case may be, shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Controlling Party in the defense of any Third Party Claim. Notwithstanding the foregoing provisions of this Section 12.05, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) Business Days after receipt of the Indemnified Party’s notice of a Third Party Claim of indemnity hereunder that it elects to assume the control of the defense of any Third Party Claim, the Indemnified Party shall have the right to employ its own counsel in contest the Third Party Claim but shall not thereby waive any such case, but right to indemnity therefor pursuant to this Agreement and the fees and expenses costs of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, Actions by the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at paid by the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt If any claim set forth in the Notice of Claim given by the Indemnifying Party of a notice from the an Indemnified Party with respect pursuant to any Section 8.5 hereof is a claim of asserted by a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderparty, the Indemnifying Party shall have 30 days after the right to assume date that the defense Notice of such claim, and Claim is given or deemed given by the Indemnified Party shall cooperate to notify the extent reasonably requested by Indemnified Party in writing of the Indemnifying Party in defense or prosecution thereof and shall furnish Party’s election to defend such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by third party claim on behalf of the Indemnifying Party in connection therewithIndemnified Party. If the Indemnifying Party elects to defend such third party claim, the Indemnified Party shall elect make available to assume the Indemnifying Party and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control as is reasonably required by the Indemnifying Party and shall otherwise cooperate with and assist the Indemnifying Party in the defense of such third party claim. Regardless of which party is defending such third party claim, the Indemnified Party shall not pay, settle or compromise such third party claim without the consent of the Indemnifying Party. If the Indemnifying Party elects to defend such third party claim, the Indemnified Party shall have the right to participate in the defense of such third party claim, at the Indemnified Party’s own expense. In the event, however, that the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and the Indemnified Party may present such counsel with a conflict of interest, then such Indemnified Party may employ its own separate counsel to represent or defend it in any such caseaction or proceeding and the Indemnifying Party will, but subject to the provisions of this Article 8, pay the reasonable fees and expenses disbursements of such counsel shall be at the expense of the Indemnified Partywhen due under such counsel’s customary billing practices. If the Indemnifying Party has assumed does not elect to defend such third party claim or does not defend such third party claim in good faith, the Indemnified Party shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnifying Party’s expense, to defend such third party claim; provided, however, that such Indemnified Party’s defense of or its participation in the defense of any such third party claim against shall not in any way diminish or lessen the indemnification obligations of the Indemnifying Party under this Article 8. If the Indemnifying Party subsequently reasonably determines that the Indemnified PartyParty is not defending such third party claim in good faith, the Indemnifying Party shall have the right, in addition to any other right or remedy it may have hereunder, to settle any elect to assume the defense of such third party claim for which indemnification has been sought and is available hereunder; provided thatand, to the extent that such settlement requires the Indemnified Party to takehas not defended such third party claim in good faith, and whether or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then not the Indemnifying Party shall not settle such claim without have subsequently assumed the prior written consent defense thereof, the indemnification obligations of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume under this Article 9 shall be reduced or eliminated to the defense of a third party claim and disputes the Indemnified Party’s right extent that such failure to indemnification, the Indemnified Party defend in good faith shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at materially adversely affected the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlementability to defend against, compromise settle or other legal proceeding. In no circumstance may the satisfy any liability, damage, loss, claim or demand for which such Indemnified Party compromise or settle a claim with a third party for which it seeks is otherwise entitled to indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedhereunder.

Defense of Third Party Claims. Upon receipt The obligations and liabilities of any Party to indemnify any Person under this Article X with respect to Claims or Damages relating to or arising from third parties (each a “Third Party Claim”), shall be subject to the following terms and conditions: (a) The Person or Persons making a claim for indemnification hereunder (whether one or more Persons, the “Indemnified Party”) will give the Party or Parties against whom indemnification is sought (whether one or more, the “Indemnifying Party”) prompt written notice of any such Third Party Claim, and the Indemnifying Party may, at its option, undertake the defense thereof by representatives chosen by it and reasonably acceptable to the Indemnified Party upon written notice to the Indemnified Party within 20 days of receiving notice of such Third Party Claim. Failure of the Indemnified Party to give such notice shall not affect the Indemnifying Party’s duty or obligations under this Article X, except to the extent the Indemnifying Party is materially prejudiced thereby. If the Indemnifying Party undertakes the defense of a Third Party Claim, the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest). The Indemnified Party shall make available to the Indemnifying Party or its representatives all records and other materials required by the Indemnifying Party or its representatives and in the possession or under the control of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the use of the Indemnifying Party and its representatives in defending any such Third Party Claim, and shall in other respects reasonably cooperate in such defense. (b) If the Indemnifying Party, within 20 days after notice of any such Third Party Claim (or sooner if the nature of the Third Party Claim so requires), fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party seeks indemnification hereunderwill (after giving written notice of the same to the Indemnifying Party) have the right to undertake the defense (at the Indemnifying Party’s expense), compromise or settlement of such Third Party Claim, or consent to the entry of a judgment with respect thereto, and the Indemnifying Party shall thereafter have the no right to assume challenge the defense of such claimIndemnified Party’s defense, and compromise or settlement thereof. (c) Notwithstanding anything in this Article X to the contrary (i) if it is reasonably likely, in the Indemnified Party’s reasonable opinion, that a Third Party Claim may adversely affect the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense other than as a result of money damages or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimother money payments, the Indemnified Party shall have the right to employ its own counsel in any defend, compromise or settle such caseThird Party Claim, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, (ii) the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatnot, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, settle or compromise any Third Party Claim or consent to the entry of any judgment which (A) does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of an unconditional release from all liability in respect of such consent not Third Party Claim or (B) contains any sanction or restriction upon the conduct of any business by any Indemnified Party or its Affiliates. (d) The party controlling the defense of any Third Party Claim shall deliver, or cause to be unreasonably withhelddelivered, conditioned to the other parties copies of all correspondence, pleadings, motions, briefs, appeals or delayed. If other written statements relating to or submitted in connection with the defense of the Third Party Claim, and timely notices of, and the right to participate in (as an observer only) any hearing or other court proceeding relating to the Third Party Claim. (e) Within ten Business Days following final resolution of an Assumed Claim with the applicable third party to such Assumed Claim (whether through compromise, settlement, the entry of a judgment with respect thereto or otherwise) in accordance with the terms of this Section 10.03 and subject to Section 10.06, the Indemnifying Party does not assume shall pay the amount of Damages incurred by the Indemnified Party in connection with such Assumed Claim by delivering to the Indemnified Party, as the Indemnifying Party may elect, either (i) cash, (ii) Common Units (valued at the Closing Common Unit Value), or (iii) a combination of cash and Common Units (valued at the Closing Common Unit Value). For purposes of this Agreement, an “Assumed Claim” is (i) a Third Party Claim the defense of which is undertaken by the Indemnifying Party pursuant to the terms of this Section 10.03 or (ii) a third party claim and disputes Third Party Claim the Indemnified Party’s right to indemnification, defense of which is undertaken by the Indemnified Party shall have and the right to assume control resolution of the defense of such claim which (whether through counsel of its choicecompromise, settlement, the reasonable costs entry of which shall be at the Indemnifying Party’s expense a judgment with respect thereto or otherwise) has been consented to in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of writing by the Indemnifying Party, which consent shall not be unreasonably withheld or delayed or for which such consent by the Indemnifying Party is not to be unreasonably withheld, conditioned or delayedrequired in accordance with the provisions of Section 10.03(b).

Defense of Third Party Claims. Upon receipt (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third-party claim or any threatened third-party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third-party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third-party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 6.06(a) with respect to such third-party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third-party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of any claim against the Indemnified Partyan indemnification third-party claim, then: (i) Except as set forth in Section 6.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s Representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided, that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and (iii) The Indemnified Party shall not be required to admit any liability with respect to such third-party claim. (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third-party claim within forty-five (45) days of receipt of notice of such claim in accordance with Section 6.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third-party claim following any such acceptance, (iii) the third-party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one (1) or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party or (v) the third-party claim includes damages that could exceed the limitations in Section 6.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third-party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third-party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third-party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this Article VI in respect of such third-party claim, then the Losses recoverable by the Indemnified Party shall include all reasonable costs and expenses, including the defense set forth herein. (c) No third-party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No third-party claim may be settled by the Indemnifying Party without notice to, and the written consent of, the Indemnified Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 6.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt If a Third Party asserts that a Patent or other Intellectual Property Right (other than trademarks, which shall be governed by the Indemnifying applicable Trademark License Agreement) owned or controlled by the Third Party is infringed by the Exploitation of Rifaximin Products as contemplated by this Agreement, then the Party first obtaining knowledge of such a claim shall immediately provide the other Party notice from of such claim along with the Indemnified related facts in reasonable detail. Each Party shall be responsible for defending itself in any litigation in which it is a named defendant. If only one Party is a named defendant in any litigation commenced by a Third Party and the other Party is not a named defendant, the right to raise counterclaims against the plaintiff with regard to Patents owned by the other Party shall be governed by Section 11.7.1, provided that the Party that is not a named defendant shall not object if the Party which is a named defendant files an impleader action to join the other Party into the litigation. If both Alfa and Salix are named as joint defendants, Alfa and Salix shall cooperate with each other to develop a defense strategy for the Salix Territory and the Alfa Territory, including the decision to assert possible counterclaims, provided, however, that with respect to any claim Alfa Licensed Patent that is covered by Section 11.7, if the Parties, acting in good faith, cannot reach agreement with respect resolution, to the determination of whether to assert a third party against the Indemnified Partycounterclaim with regard to rights arising under any such Patent, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party then Salix shall have the right to assume determine whether or not to assert such counterclaim. The Parties shall confer with each other to decide which Party shall control the defense of such claimlitigation in which Salix and Alfa are both named as defendants. In respect of any defense of an action pursuant to this Section 11.6.1, and the Indemnified defending Party shall cooperate to solicit and reasonably consider the extent reasonably requested by the Indemnifying Party other Party’s proposals in defense or prosecution thereof and shall furnish respect of litigation strategy. In any such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimaction, the Indemnified non-controlling Party shall have the right to employ right, at its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatexpense, to the extent that be represented in such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through by counsel of its own choice. Except as otherwise contemplated above in this Section 11.6.1, the reasonable costs Party with primary responsibility for defense under this Section 11.6.1 shall bear the cost of which any such action and shall be at entitled to 100% of the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlementrecovery, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification if any, from the Indemnifying Third Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedarising from any counter-claims.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against any party entitled to the Indemnified Partybenefit of indemnity hereunder, for which written notice thereof shall be given to the Indemnified Party seeks indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, except to the extent that the indemnifying party demonstrates actual damage caused by such settlement requires failure. After such notice, if the Indemnified Party indemnifying party shall acknowledge in writing to take, the indemnified party that the indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Partyaction, then the Indemnifying Party indemnifying party shall not be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim without claim, which compromise or settlement shall be made only with the prior written consent of the Indemnified Partyindemnified party, such consent not to be unreasonably withheld (unless such compromise or settlement (a) solely requires payment of monetary damages by the indemnifying party and (b) does not impose obligations or restrictions on or require the admission of liability by the indemnified party or its business, in which case approval of the indemnified party shall not be required); provided, however, if the resolution of any such Claim is reasonably expected to impose obligations or restrictions on the indemnified party or its business, then, notwithstanding the foregoing, the indemnified party shall be entitled to control such resolution, including, without limitation, to take control of the defense and investigation of such lawsuit or action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense, and to compromise or settle such Claim (which compromise or settlement shall be subject to the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume the defense of a third indemnifying party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right fails to assume control of the defense of such claim through counsel within fifteen (15) calendar days after receipt of its choicethe Claim Notice, the reasonable costs of indemnified party against which shall be such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the Indemnifying Party’s expense in indemnifying party's cost and expense, the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceeding. In no circumstance may settlement of such claim on behalf of and for the Indemnified Party compromise account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised or settle a claim with a third party for which it seeks indemnification from settled without the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, such which consent shall not to be unreasonably withheld. In the event the indemnified party assumes the defense of the claim, conditioned the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or delayedsettlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 10.3 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment. The right to indemnification, payment of Damages or other remedy based on any representations, warranties, covenants and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable or being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedies based on such representations, warranties, covenants and obligations.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the An Indemnified Party with respect or a Seller Indemnified Party, as appropriate, shall give prompt written notice to any person who is obligated to provide indemnification hereunder (an "Indemnifying Party") of the commencement or assertion of any action, proceeding, demand, or claim of by a third party against the Indemnified Party(collectively, for a "third-party action") in respect of which the such Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the or Seller Indemnified Party shall cooperate seek indemnification hereunder. Any failure so to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the notify an Indemnifying Party shall not settle relieve such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right from any liability that it may have to indemnification, the such Indemnified Party or Seller Indemnified Party under this Article 9 unless the failure to give such notice materially and adversely prejudices such Indemnifying Party. The Indemnifying Parties shall have the right to assume control of the defense of, settle, or otherwise dispose of such claim through counsel of its choicethird-party action on such terms as they deem appropriate; provided, the reasonable costs of which however, that: (a) The Indemnified Party or Seller Indemnified Party shall be entitled, at his, her, or its own expense, to participate in the defense of such third-party action (provided, however, that the Indemnifying Parties shall pay the attorneys' fees of the Indemnified Party if (i) the employment of separate counsel shall have been authorized in writing by any such Indemnifying Party in connection with the defense of such third-party action, (ii) the Indemnifying Parties shall not have employed counsel reasonably satisfactory to the Indemnified Party or Seller Indemnified Party to have charge of such third-party action after 30 days notice, or (iii) the Indemnified Party’s 's or Seller Indemnified Party's counsel shall have advised the Indemnified Party or Seller Indemnified Party in writing, with a copy to the Indemnifying Parties, that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel); (b) The Indemnifying Parties shall obtain the prior written approval, not to be unreasonably withheld, of the Indemnified Party or Seller Indemnified Party before entering into or making any settlement, compromise, admission, or acknowledgement of the validity of such third-party action or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission, or acknowledgement, injunctive or other equitable relief would be imposed against the Indemnified Party or Seller Indemnified Party or if, in the opinion of the Indemnified Party, such settlement, compromise, admission, or acknowledgement could have a material adverse effect on its business or, in the case of an Indemnified Party who is a natural person, on his or her assets or interests; (c) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party or Seller Indemnified Party of a release from all liability in respect of such third-party action; and (d) The Indemnifying Parties shall not be entitled to control (but shall be entitled to participate at their own expense in the event defense of), and the Indemnified Party or Seller Indemnified Party shall be entitled to have sole control over, the defense or settlement, compromise, admission, or acknowledgement of any third-party action (i) as to which the Indemnifying Parties fail to assume the defense within a reasonable length of time, (ii) to the extent the third-party action seeks an order, injunction, or other equitable relief against the Indemnified Party or Seller Indemnified Party which, if successful, would materially adversely affect the business, operations, assets, or financial condition of the Indemnified Party; provided, however , that the Indemnified Party’s right of indemnification is ultimately established through Party or Seller Indemnified Party shall make no settlement, compromise compromise, admission, or other legal proceeding. In no circumstance may acknowledgement which would give rise to liability on the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the part of any Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such Party (which consent will not to be unreasonably withheld), conditioned or delayed(iii) to the extent that the Indemnified Party or Seller Indemnified Party reasonably believes that the Indemnifying Party does not have adequate financial resources to provide or maintain the defense of any third-party action, or satisfy any award or judgment that may result from any third-party action. The parties hereto shall extend reasonable cooperation in connection with the defense of any third-party action pursuant to this Article 9 and, in connection therewith, shall furnish such records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be reasonably requested.

Defense of Third Party Claims. Upon After receipt by the Indemnifying Party of an Indemnification Notice in respect of a notice from the Indemnified Party with respect to any claim of Claim brought by a third party against the Indemnified Third Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party or Parties shall have the right to assume the defense (at the Indemnifying Party or Parties’ sole cost and expense) of any such claim, and claim through counsel of the Indemnifying Party’s or Parties’ own choosing by so notifying the Indemnified Party in writing within twenty (20) days of receipt of such Indemnification Notice; provided, however, that any such counsel shall cooperate be reasonably satisfactory to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithIndemnitee. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party Each Indemnitee shall have the right to employ its own separate counsel in any such caseClaim and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If Indemnitee unless: (i) the Indemnifying Party has assumed agreed to pay such expenses; (ii) the Indemnifying Party has failed promptly to assume the defense of any claim against the and employ counsel reasonably satisfactory to such Indemnified Party; or (iii) the named parties to any such Claim (including any impleaded parties) include any Indemnitee and the Indemnifying Party or an affiliate of the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that either (x) there may be one or more legal defenses available to it which are different from or in addition to those available to the Indemnifying Party or such affiliate or (y) a conflict of interest may exist if such counsel represents such Indemnitee and the Indemnifying Party or its affiliate; provided, that, if such Indemnitee notifies the Indemnifying Party in writing that it elects to employ separate counsel in the circumstances described in clause (i), (ii) or (iii) above, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control the defense thereof and such counsel shall be at the expense of the Indemnifying Party. Without the consent of the Indemnitees, the Indemnifying Parties shall not consent to, and the Indemnitees shall not be required to agree to, the entry of any judgment or enter into any settlement unless such judgment or settlement (i) includes as an unconditional term thereof the giving of a release from all liability with respect to such claim by each claimant or plaintiff to each Indemnitee that is the subject of such third-party Claim, (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of an Indemnitee and (iii) in the case of any Claim regarding Taxes, such judgment or settlement does not and will not, in the reasonable determination of Buyer, give rise or result in an increase in any Tax liability of Buyer, or any of its Affiliates. If an Indemnification Notice is given to an Indemnifying Party and the Indemnifying Party does not, within twenty (20) days after the Indemnitee’s notice is given, give notice to the Indemnitee of its election to assume the defense of such claim through counsel of its choiceclaim, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining will be bound by any determination made in such claim or any compromise or settlement effected by the prior written consent of Indemnitee. The Indemnitee and the Indemnifying PartyParty will make available to each other and their attorneys and representatives at all reasonable times, all books and records relating to such consent not Claim and will render to each other such assistance as may reasonably be unreasonably withheld, conditioned or delayedrequested to ensure proper and adequate defense of any such Claim.

Defense of Third Party Claims. Upon receipt (a) If Assignee or any Assignor Party (the Person seeking indemnification, the “Indemnified Party”) receives notice or otherwise obtains knowledge of any Proceeding commenced or threatened by a third party (each, a “Third Party Claim”) against such Indemnified Party that such Indemnified Party actually knows may give rise to an indemnification claim against Assignee or Assignor (the Person from whom indemnification is sought, the “Indemnifying Party”), then the Indemnified Party shall reasonably promptly after such actual knowledge deliver to the Indemnifying Party a written notice (the “Third Party Claim Notice”) describing the Third Party Claim in reasonable detail. The delivery of such written notice by the Indemnified Party to the Indemnifying Party shall be a condition precedent to any liability on the part of the Indemnifying Party under this Article VII with respect to such Third Party Claim; provided, however, that any failure to timely notify shall not relieve the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such Third Party Claim with counsel reasonably acceptable to the Indemnified Party providing notification; provided, that (i) the Indemnifying Party shall be entitled to assume the defense of such claimThird Party Claim only to the extent the Indemnifying Party acknowledges in writing its indemnity obligation and assumes and holds the Indemnified Party harmless from and against the full amount of any damages resulting therefrom; and (ii) the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if (A) such Third Party Claim is reasonably foreseeable to result in Damages which are more than the remaining Maximum Cap Amount at the time such claim is submitted by the Indemnified Party; (B) such Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (C) such Third Party Claim seeks an injunction or equitable relief against the Indemnified Party; (D) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnified Party and the Indemnifying Party; (E) the Indemnified Party reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnified Party’s reputation or future business prospects; or (F) upon petition by the Indemnified Party the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such Third Party Claim. (b) If the Indemnifying Party is entitled to and elects in writing (which writing shall also contain the acknowledgement referenced in Section 7.4(a) within twenty (20) days of receipt of the Third Party Claim Notice to assume the defense of any such Third Party Claim, then: (i) The Indemnifying Party shall permit the Indemnified Party to participate in such defense through counsel chosen by the Indemnified Party and reasonably satisfactory to the Indemnifying Party, and shall not be required to pay or otherwise indemnify the Indemnified Party against any fees or expenses of such counsel incurred on behalf of the Indemnified Party in connection with such Third Party Claim following the Indemnifying Party’s election to assume the defense of such Third Party Claim, provided, that the Indemnifying Party shall pay the fees and expenses of such counsel if (A) the Indemnifying Party subsequently ceases to control the defense of such Third Party Claim; provided further that in such event, the Indemnifying Party shall only be responsible for such fees and expenses from and after the date on which the Indemnifying Party ceases to control the defense of such Third Party Claim, or (B) the named parties to any such action (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall cooperate have been advised in writing by such counsel that there may be one or more legal defenses available to the extent Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party the assertion of which would be adverse to the interests of the Indemnifying Party; (ii) subject to the entry into a confidentiality agreement acceptable to the Indemnified Party, the Indemnified Party shall make reasonably available to the Indemnifying Party all nonprivileged books, records, and other documents and materials that are under the direct or indirect control of the Indemnified Party or any of the Indemnified Party’s Representatives and that the Indemnifying Party considers necessary or desirable for the defense of such Third Party Claim; (iii) the Indemnified Party shall reasonably cooperate as reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimThird Party Claim; (iv) the Indemnified Party shall not admit any liability with respect to or pay or settle such Third Party Claim so long as the Indemnifying Party is reasonably contesting any such Third Party Claim in good faith; provided, that notwithstanding the foregoing, the Indemnified Party shall have the right to employ its own counsel in pay or settle any such case, but the fees and expenses of such counsel Third Party Claim if (A) it shall be at the expense of the Indemnified Party. If waive any right to indemnity therefor by the Indemnifying Party has assumed or (B) the defense of any claim against the Indemnified Party, Indemnifying Party shall have consented in writing to such payment or settlement; and (v) the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatsettle, to adjust, or compromise such Third Party Claim, on such terms as it may deem appropriate, without the extent that such settlement requires consent or approval of the Indemnified Party to takeor any other Person, unless such settlement, adjustment or prohibits compromise (i) does not include a full, unconditional and complete release by all of the Persons asserting such Third Party Claim of the Indemnified Party from takingall liability with respect to such Third Party Claim, (ii) is not entirely indemnifiable by the Indemnifying Party pursuant to this Article VII, or, and (iii) imposes any action injunctive relief or purports to obligate other restrictions of any kind or nature on the Indemnified Party, then Party in which case the Indemnifying Party shall not settle enter into such claim settlement, adjustment, or compromise of such Third Party Claim without the Indemnified Party’s prior written consent of the Indemnified Party, such (which consent shall not to be unreasonably withheld, conditioned or delayed. ). (c) If the Indemnifying Party does elects not to assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationsuch Third Party Claim, then (i) the Indemnified Party shall have the right to assume control of the defense of defend such claim through counsel of its choiceThird Party Claim in a commercially reasonable manner; provided, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event however, that the Indemnified Party’s right of indemnification is ultimately established through settlementParty shall not settle, adjust, or compromise such Third Party Claim, or other legal proceeding. In no circumstance may the Indemnified admit any liability with respect to such Third Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party Claim, without first obtaining the prior written consent of the Indemnifying Party, such which consent shall not to be unreasonably withheld, conditioned or delayed, and (ii) the Indemnifying Party shall reasonably cooperate as reasonably requested by the Indemnified Party in the defense of such Third Party Claim and make reasonably available to the Indemnified Party all nonprivileged books, records, and other documents and materials that are under the direct or indirect control of the Indemnifying Party or any of the Indemnifying Party’s Representatives and that the Indemnified Party reasonably considers necessary or desirable for the defense of such Third Party Claim. (d) In all events, the R&W Policy Insurer and its agents and advisors shall be permitted to associate effectively with any Party in the defense of any matter which might reasonably involve loss (as defined in the R&W Policy). (e) Notwithstanding anything in this Section 7.4 to the contrary, Section 7.4 shall govern for purposes of any Third Party Claim that is a Tax audit, Tax dispute or administrative, judicial or other proceeding.

Defense of Third Party Claims. Upon receipt In the event of a claim (an “Indemnity Claim”) being made by a third party against a party to this Agreement (the “Indemnified Party”) in respect of which, subject to Sections 10.2 and 10.3, another party to this Agreement (the “Indemnifier”) is or may be obligated under or arising out of this Agreement to indemnify, pay damages to or otherwise compensate the Indemnified Party, the following provisions shall apply. The Indemnified Party shall promptly give written notice to the Indemnifier of any Indemnity Claim in respect of which the Indemnified Party intends to claim for indemnification against the Indemnifier. Such notice shall specify with reasonable particularity (to the extent that the information is available) the nature of the Indemnity Claim. The Indemnifier may, at its own expense, assume control of the negotiation, settlement and defense of such Indemnity Claim. The Indemnified Party shall co-operate with the Indemnifier in respect of such Indemnity Claim and the Indemnifier shall reimburse the Indemnified Party for all the Indemnified Party's reasonable expenses as a result of the Indemnifier's assumption of such Indemnity Claim and arising from the Indemnified Party's co-operation. The Indemnified Party will have the right to participate in the negotiation, settlement and defense of such Indemnity Claim at its own expense and will have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifier and the Indemnified Party shall be retained by the Indemnifying Indemnifier. If the Indemnifier fails to defend any Indemnity Claim within a reasonable time, the Indemnified Party will be entitled to assume control of a notice from the Indemnity Claim at the expense of the Indemnifier and the Indemnifier will be bound by the results obtained by the Indemnified Party with respect to such Indemnity Claim. The following provisions shall also apply with respect to Indemnity Claims: (a) In the event that any claim Indemnity Claim is of a third party against the Indemnified Party, for which nature such that the Indemnified Party seeks indemnification hereunderis legally bound or required by applicable law to make a payment to any person (a “Third Party”) with respect to such Indemnity Claim before the completion of settlement negotiations or related legal proceedings, including, without limitation, the Indemnifying Party shall have the right posting of any security to assume the defense stay any process of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense execution or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimjudgment, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel Indemnifier shall be at the expense obligated to make such payment or post security therefor on behalf of the Indemnified Party. If the Indemnifying Indemnifier fails to do so, the Indemnified Party has assumed may make such payment or post security therefor and the defense Indemnifier shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for any such payment or cause the security to be replaced and released. If the amount of any claim against liability of the Indemnified Party under the Indemnity Claim in respect of which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifier to the Indemnified Party, the Indemnifying Indemnified Party shall have shall, forthwith after receipt of the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatdifference from the Third Party, pay the amount of such difference to the extent that such Indemnifier. (b) Except in the circumstance contemplated by Section 10.4(a) above, and unless the Indemnifier fails to assume control of the negotiation, settlement requires and defense of any Indemnity Claim, the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without negotiate, settle, compromise or pay any Indemnity Claim except with the prior written consent of the Indemnifier (which consent shall not be unreasonably withheld). (c) The Indemnified Party shall not permit any right of appeal in respect of any Indemnity Claim to terminate without giving the Indemnifier notice thereof and an opportunity to contest such Indemnity Claim. (d) The Indemnified Party and the Indemnifier shall co-operate fully with each other with respect to Indemnity Claims, shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available) and shall each designate a senior officer who will keep himself or herself informed about and be prepared to discuss the Indemnity Claim with his or her counterpart and with counsel at all reasonable times. (e) Notwithstanding the above provisions of this Section 10.4, the Indemnifier shall not settle any Indemnity Claim or conduct any related legal or administrative proceeding in a manner which would, in the opinion of the Indemnified Party, such consent not to be unreasonably withheldacting reasonably, conditioned or delayed. If the Indemnifying Party does not assume the defense of have a third party claim and disputes Material adverse impact on the Indemnified Party’s right . (f) The provisions of this Section 10.4 are intended to indemnificationset out the procedures to be followed with respect to an Indemnity Claim and, provided the Indemnified Party shall have follows such procedures in all Material respects, nothing contained in this Section 10.4 will derogate from the right Indemnifier's obligations to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that indemnify the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action subject to indemnification hereunder is filed against any Indemnified Party by a third party, written notice thereof shall be given to the Indemnifying Party as promptly as practicable (other than Tax Claims) as provided in Section 7.5. The failure of a notice from the any Indemnified Party with respect to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party is actually prejudiced by such failure. Notwithstanding anything contained in this Section 7.6 to the contrary, any claim for indemnification hereunder that is not asserted by notice given as herein provided that specifically identifies a particular breach and the underlying facts and Losses relating thereto during the applicable period of a third party against survival as set forth in Section 7.1 may not be pursued and is hereby irrevocably waived upon and after the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderexpiration of such period of survival. After such notice, the Indemnifying Party shall have the right be entitled, if it so elects, at its own cost, risk and expense (a) to assume take control of the defense and investigation of such claimlawsuit or action, (b) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, in which event the Indemnified Party shall be entitled, at the Indemnifying Party's cost, risk and expense, to separate counsel of its own choosing, and (c) to compromise or settle such claim. The Indemnified Party shall cooperate with the Indemnifying Party and its attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnified Party in defense or prosecution thereof and shall furnish such records, its affiliates available on a mutually convenient basis to provide additional information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party explanation of any materials provided hereunder. The parties shall cooperate with each other in connection therewithany notifications to insurers. If the Indemnifying Party shall elect fails to assume the defense of such claim within ten days after notice, the Indemnified Party against which the claim has been asserted (upon delivering notice to such effect to the Indemnifying Party) has the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the Indemnifying Party. If the Indemnified Party assumes the defense of the claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If will keep the Indemnifying Party has assumed reasonably informed of the defense progress of any claim against the Indemnified Partysuch defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 7.6 and any final judgment (subject to any right of appeal), and the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought indemnify and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits hold harmless the Indemnified Party from taking, and against any action Losses by reason of any such settlement or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedjudgment.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed, or claim asserted against an Indemnified Party by the Indemnifying Party of a notice from third party and the Indemnified Party with respect is entitled to indemnification pursuant to this Agreement, written notice thereof shall be given to the relevant Indemnifying Party as promptly as practicable (and in any claim event no later than 30 days after the service of a third party against the Indemnified Party, for which citation or summons or receipt of other written notice of such claim); the failure of any Indemnified Party seeks to give timely notice shall limit the rights to indemnification hereunder, hereunder only if and to the extent that (i) such failure to give timely notice materially affects the ability or right of the relevant Indemnifying Party shall have the right to assume participate in the defense of such lawsuit or enforcement action or claim, and the Indemnified Party shall cooperate (ii) actual notice is not given to the extent reasonably requested by the relevant Indemnifying Party in defense within a reasonable time, or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, (iii) to the extent that such settlement requires failure to give timely notice causes the relevant Indemnifying Party to incur additional expense with respect to such lawsuit or enforcement action, the Indemnified Party fails to takepromptly reimburse the relevant Indemnifying Party for such additional expense. The relevant Indemnifying Party shall be entitled, if it so elects, to take control of the defense and investigation of such lawsuit, action or prohibits claim, and to employ and engage attorneys of its own choice to handle and defend the same, at the relevant Indemnifying Party's cost, risk and expense; and such Indemnified Party shall cooperate in all reasonable respects, at its cost, risk and expense, with the relevant Indemnifying Party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the Indemnified Party from takingmay, at its own cost, participate in (but not control) such investigation, trial and defense of such lawsuit or action and any action appeal arising therefrom. If the relevant Indemnifying Party does not elect to take control of the defense and investigation of said lawsuit or purports to obligate the Indemnified Partyaction, then the Indemnifying Indemnified Party shall not settle remain in control thereof in such claim manner as it deems appropriate. Neither party shall enter into any settlement, adjustment or compromise of any lawsuit or action without the prior written consent of the Indemnified Party, such other party which consent will not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt If any claim set forth in the Notice of Claim given by the Indemnifying Party of a notice from the an Indemnified Party with respect pursuant to any Section 8.5 hereof is a claim of asserted by a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderparty, the Indemnifying Party shall have 30 days after the right to assume date that the defense Notice of such claim, and Claim is given or deemed given by the Indemnified Party shall cooperate to notify the extent reasonably requested by Indemnified Party in writing of the Indemnifying Party in defense or prosecution thereof and shall furnish Party’s election to defend such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by third party claim on behalf of the Indemnifying Party in connection therewithIndemnified Party. If the Indemnifying Party elects to defend such third party claim, the Indemnified Party shall elect make available to assume the Indemnifying Party and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control as is reasonably required by the Indemnifying Party and shall otherwise cooperate with and assist the Indemnifying Party in the defense of such third party claim. Regardless of which party is defending such third party claim, the Indemnified Party shall not pay, settle or compromise such third party claim without the consent of the Indemnifying Party. If the Indemnifying Party elects to defend such third party claim, the Indemnified Party shall have the right to participate in the defense of such third party claim, at the Indemnified Party’s own expense. In the event, however, that the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and the Indemnified Party may present such counsel with a conflict of interest, then such Indemnified Party may employ its own separate counsel to represent or defend it in any such caseaction or proceeding and the Indemnifying Party will, but subject to the provisions of this Article 8, pay the reasonable fees and expenses disbursements of such counsel shall be at the expense of the Indemnified Partywhen due under such counsel’s customary billing practices. If the Indemnifying Party has assumed does not elect to defend such third party claim or does not defend such third party claim in good faith, the Indemnified Party shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnifying Party’s expense, to defend such third party claim; provided, however, that such Indemnified Party’s defense of or its participation in the defense of any such third party claim against shall not in any way diminish or lessen the indemnification obligations of the Indemnifying Party under this Article 8. If the Indemnifying Party subsequently reasonably determines that the Indemnified PartyParty is not defending such third party claim in good faith, the Indemnifying Party shall have the right, in addition to any other right or remedy it may have hereunder, to settle any elect to assume the defense of such third party claim for which indemnification has been sought and is available hereunder; provided thatand, to the extent that such settlement requires the Indemnified Party to takehas not defended such third party claim in good faith, and whether or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then not the Indemnifying Party shall not settle such claim without have subsequently assumed the prior written consent defense thereof, the indemnification obligations of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume under this Article 8 shall be reduced or eliminated to the defense of a third party claim and disputes the Indemnified Party’s right extent that such failure to indemnification, the Indemnified Party defend in good faith shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at materially adversely affected the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlementability to defend against, compromise settle or other legal proceeding. In no circumstance may the satisfy any liability, damage, loss, claim or demand for which such Indemnified Party compromise or settle a claim with a third party for which it seeks is otherwise entitled to indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedhereunder.

Defense of Third Party Claims. Upon receipt by The duty to defend hereunder is wholly independent of and separate from the Indemnifying Party duty to indemnify and such duty to defend exists regardless of any ultimate liability of the indemnifying party. Such defense obligation shall arise immediately upon presentation of written notice to the indemnifying party of a notice from the Indemnified Claim by any indemnified party. Promptly following receipt of any written claim or legal proceeding asserted by a person or entity which is not a party to this Amendment (“Third Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderClaim”), the Indemnifying Party indemnified party shall have notify the right to assume indemnifying party of such claim in writing. In matters that pose no conflict of interest, the indemnifying party thereafter shall undertake and diligently pursue the defense of such claim, and the Indemnified Third Party shall cooperate Claim with counsel reasonably acceptable to the extent reasonably requested by indemnified party; provided, however, that the Indemnifying Party in defense indemnifying party shall not consent to entry of judgment or prosecution thereof enter into any settlement agreement without the consent of the indemnified party, which does not include a complete and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by unconditional agreement of the Indemnifying Party in connection therewithindemnified party or which imposes injunctive or other equitable relief against the indemnified party. If the Indemnifying Party shall elect indemnifying party fails to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume diligently pursue the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationThird Party Claim, the Indemnified indemnified party may defend against such Third Party shall have Claim in such manner as it may deem appropriate, including without limitation, settlement thereof on such terms as the right indemnified party may reasonably deem appropriate, and to assume control of pursue such remedies as may be available to the defense of such claim through counsel of its choiceindemnified party against the indemnifying party. Notwithstanding the foregoing, the reasonable costs indemnified party shall not consent to entry of which shall be at judgment or enter into any settlement agreement without the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, such consent which does not to be unreasonably withheld, conditioned include a complete and unconditional agreement of indemnifying party or delayedwhich imposes injunctive or other equitable relief against indemnifying party.

Defense of Third Party Claims. Upon receipt by the Indemnifying Each indemnified Party shall give notice as promptly as reasonably practicable to each indemnifying Party of a notice from the Indemnified any Third Party with Claim asserted against it in respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification indemnity may be sought hereunder, but failure to so notify an indemnifying Party shall not relieve such indemnifying Party from any liability hereunder to the Indemnifying extent it is not materially prejudiced as a result thereof and in such event, only to the extent of such prejudice. The indemnified Party shall have the right to assume undertake and control the defense defense, compromise and settlement of such claim, and the Indemnified . An indemnifying Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ participate at its own counsel expense in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Partysuch action; provided, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thathowever, that (a) counsel to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying indemnifying Party shall not settle such claim (except with the consent of the indemnified Party) also be counsel to the indemnified Party and (b) no indemnifying Party shall, without the prior written consent of the Indemnified Partyindemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Third Party Claim (whether or not the indemnified Parties are actual or potential parties thereto) unless such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceedingconsent (i) includes an unconditional release of each indemnified Party from all liability arising out of such Third Party Claim and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified Party. In no circumstance may event shall the Indemnified Party compromise indemnifying Parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified Parties in connection with any one action or settle a claim with a third party for which it seeks indemnification from separate but similar or related actions in the Indemnifying Party without first obtaining the prior written consent same jurisdiction arising out of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned same general allegations or delayedcircumstances unless there is a conflict of interest among the indemnified Parties.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party In connection with respect to any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderparty, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the indemnified party may (but shall not be obligated to), upon written notice to the indemnified party, assume the defense of any such claim or legal proceeding if (a) the Indemnifying Party acknowledges to the indemnified party in writing, within 15 days after receipt of notice from the indemnified party, its obligations to indemnify the indemnified party with respect to all elements of such claim, (b) the Indemnifying Party provides the indemnified party with evidence reasonably acceptable to the indemnified party that the Indemnifying Party will have the right financial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is not in the good faith judgment of the indemnified party, likely to establish a pattern or practice adverse to the continuing business interests of the indemnified party. The indemnified party will be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, that if there are one or more legal defenses available to the indemnified party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to defend diligently the claim after receiving notice from the indemnified party that it believes the Indemnifying Party has failed to do so, the indemnified party may assume the defense of such claim; provided, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such recordsfurther, information and testimony and attend all such conferenceshowever, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel that in any such case, but circumstances in which the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party indemnified party has assumed the defense of any claim against the Indemnified Partya claim, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall indemnified party may not settle such claim without the prior written consent of the Indemnified Indemnifying Party, such which consent may not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume indemnified party assumes the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationclaim, the Indemnified Indemnifying Party shall have reimburse the right indemnified party on a monthly basis for the reasonable fees and expenses of counsel retained by the indemnified party, which counsel shall be reasonably satisfactory to assume control of the Indemnifying Party, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim through claim, with its counsel and at its own expense. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of its choiceeach other in order to insure the proper and adequate defense of any action, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of suit or proceeding, whether or not subject to indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedhereunder.

Defense of Third Party Claims. Upon receipt (a) Subject to Section 8.8(d), upon receiving a Notice of Claim relating to any Third Party Claim, the Indemnifying Party shall be entitled to participate in the investigation and defense of such Third Party Claim and, if it so elects, to assume the investigation and defense of such Third Party Claim with counsel selected by the Indemnifying Party (and reasonably acceptable to the Indemnified Party). The Indemnified Party shall cooperate in good faith in any such defense. The Indemnified Party shall have the right, at its own cost and expense, to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. (b) In order to assume the investigation and defense of a Third Party Claim, the Indemnifying Party must give the Indemnified Party written notice from of its election and acceptance of the defense within 20 days of the Indemnifying Party’s receipt of the Notice of Claim. (c) Subject to Section 8.8(d), if the Indemnifying Party assumes the investigation and defense of a Third Party Claim: (i) the Indemnifying Party will pay for all costs and expenses of the investigation and defense of the Third Party Claim except that the Indemnifying Party will not, so long as it diligently conducts such defense, be liable to the Indemnified Party for any fees of other counsel or any other expenses with respect to the defense of the Third Party Claim incurred by the Indemnified Party after the date the Indemnifying Party validly exercised its right to assume the investigation and defense of the Third Party Claim; (ii) the Indemnifying Party will reimburse the Indemnified Party for all reasonable costs and expenses incurred by the Indemnified Party in connection with the investigation and defense of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defense of the Third Party Claim; and (iii) if the Indemnifying Party thereafter fails to defend the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such defense and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Third Party Claim. (d) Where the named parties to any claim of a third party against the Indemnified Party, for which Third Party Claim include the Indemnified Party seeks indemnification hereunderas well as the Indemnifying Party and the Indemnified Party determines in good faith, based on written advice from its legal counsel, that joint representation would be inappropriate due to the actual or potential differing interests between them or there may be one or more legal defenses available to the Indemnified Party which are different from or in addition to those available to the Indemnifying Party, and the Indemnified Party notifies the Indemnifying Party in writing that it elects to retain separate counsel, the Indemnifying Party shall not have the right to assume the defense of such claim, and Third Party Claim on behalf of the Indemnified Party and shall cooperate be liable to pay the reasonable fees and expenses of counsel of the Indemnified Party. (e) If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable Law to incur losses or make a payment to any Third Party with respect to the extent reasonably requested Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may incur such Losses or make such payment and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under such Third Party Claim, as finally determined, is less than the amount that was paid by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party shall, forthwith after the receipt of the difference from the Third Party, pay the amount of such difference, together with any interest thereon paid by the Third Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then to the Indemnifying Party. In addition, the Indemnifying Party shall post all security required by any court, regulatory body or other authority having jurisdiction, including without limitation, for purposes of enabling the Indemnifying Party to contest any Third Party Claim. (f) If the Indemnified Party undertakes the defense of the Third Party Claim, the Indemnifying Party will not be bound by any compromise or settlement of the Third Party Claim effected without the consent of the Indemnifying Party (which consent may not be unreasonably withheld, conditioned or delayed) unless such compromise or settlement includes an unconditional release of the Indemnifying Party from all liability and obligations arising from such Third Party Claim. (g) The Indemnified Party and the Indemnifying Party shall cooperate fully with each other with respect to Third Party Claims, and shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available). (h) The Indemnifying Party will not be permitted to compromise and settle such claim or to cause a compromise and settlement of a Third Party Claim without the prior written consent of the Indemnified Party, such which consent may not to be unreasonably withheld, conditioned or delayed. If , unless: (i) the terms of the compromise and settlement require only the payment of money for which the Indemnified Party is entitled to full indemnification under this Agreement and the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right agrees to indemnification, timely pay such amount in full; and (ii) the Indemnified Party shall have the right is not required to assume control admit any wrongdoing, take or refrain from taking any action, acknowledge any rights of the defense of such claim through counsel of its choice, Person making the reasonable costs of which shall be at the Indemnifying Party’s expense in the event Third Party Claim or waive any rights that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance Party may have against the Indemnified Person making the Third Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedClaim.

Defense of Third Party Claims. Upon receipt (a) If the Indemnified Party’s claim for Indemnification is based, under this Agreement, on an Action, judicial or otherwise, brought by a third party, and the Indemnifying Party does not object under Section 8.4(b), the Indemnifying Party may, participate in the defense of such Action and may assume the defense of such Action with counsel satisfactory to the Indemnified Party if (i) the Indemnified Party agrees to assumption thereof by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, or (ii) the Indemnifying Party shall have confirmed in writing (without reservation or qualification) its obligation to provide indemnification for the right liability asserted in such action. If the Indemnified Party shall reasonably conclude that its interests in such Action are materially different from those of the Indemnifying Party or that it may have defenses that are different from or in addition to assume those available to the Indemnifying Party, the Indemnified Party may use separate counsel to protect such interests and assert such defenses and otherwise participate in the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithAction. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right with counsel satisfactory to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle not be liable for any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate legal expenses (other than investigation expenses) subsequently incurred by the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, unless the Indemnified Party shall have employed separate counsel in accordance with the preceding sentence. (b) The right to indemnification conferred in this Article VIII shall include the right to assume control of be paid by the defense of Indemnifying Party the expenses incurred in defending any proceeding for which such claim through counsel right to indemnification is applicable in advance of its choicefinal disposition (hereinafter an “advancement of expenses”); provided, the reasonable costs however, that, if, but only if, a court or arbitration panel of which competent jurisdiction requires, all amounts paid as an advancement of expenses shall be at repaid to the Indemnifying Party’s expense in the event Party if it shall be Finally Determined that the Indemnified Party’s right of indemnification Party is ultimately established through settlement, compromise not entitled to be indemnified for such expenses under this Agreement or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with otherwise. (c) If an Action is brought by a third party for in which it seeks the liability as between Alloy and ▇▇▇▇▇*s is alleged to be joint or in which the entitlement to indemnification from hereunder is not determinable or as to which there has been a reservation of rights, the Indemnifying Party parties shall cooperate in a joint defense. Such joint defense shall be under the general management and supervision of the party which is expected to bear the greater share of the liability; provided, however, that neither party shall settle or compromise any such joint defense matter without first obtaining the prior written consent of the Indemnifying Partyother. The costs of such joint defense shall be borne as the parties may agree, or in the absence of such agreement, such consent not costs shall be borne by the party incurring such costs, subject to be unreasonably withheld, conditioned or delayedultimate resolution pursuant to Article X hereof.

Defense of Third Party Claims. Upon receipt by (a) For purposes of this Article XIII, the Indemnifying term “indemnifying Party” when used in connection with particular Damages shall mean the Party of a notice from the Indemnified Party having an obligation to indemnify another Person or Persons with respect to any claim such Damages pursuant to this Article XIII, and the term “indemnified party” when used in connection with particular Damages shall mean the party having the right to be indemnified, with respect to such Damages by the other Party pursuant to this Article XIII. (b) Promptly after receipt by an indemnified party under Section 13.1 or Section 13.2 of a third party claim for Damages or notice of the commencement of any Proceeding against it (each a “Third Party Claim”), such indemnified party shall, if a claim is to be made against an indemnifying Party under such Section, give notice to the Indemnified indemnifying Party of the commencement of such Third Party Claim, together with a claim for indemnification pursuant to this Article XIII. The failure of any indemnified party to give a notice of a Third Party Claim as provided in this Section 13.6 shall not alter or relieve the indemnifying Party of its obligations under this Article XIII except to the extent, but only to the extent, such failure materially prejudices the indemnifying Party. (c) If any Third Party Claim is brought against an indemnified party and the indemnified party gives a notice to the indemnifying Party of the commencement of such Third Party Claim, the indemnifying Party shall have fifteen (15) days from its receipt of the notice to notify the indemnified party whether it admits or denies its liability to defend the indemnified party against such Third Party Claim at the sole cost and expense of the indemnifying Party. The indemnified party is authorized, prior to and during such fifteen (15) day period, to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the indemnifying Party and that is not prejudicial to the indemnifying Party, for which and any costs, fees or expenses incurred by the Indemnified indemnified party in furtherance of investigating, review and responding to such Third Party seeks Claim shall be Damages subject to indemnification hereunder. (d) If the indemnifying Party admits its liability to defend the indemnified party against such Third Party Claim, it shall have the right and obligation to diligently defend, at its sole cost and expense, the Indemnifying indemnified party against such Third Party Claim with counsel reasonably satisfactory to the indemnified party, and, after notice from the indemnifying Party to the indemnified party of the indemnifying Party’s election to assume the defense of such Third Party Claim, the indemnifying Party shall not, as long as it diligently conducts such defense, be liable to the indemnified party under this Article XIII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case subsequently incurred by the indemnified party in connection with the defense of such claim or Proceeding (provided, however, that the indemnifying Party shall not have the right to assume the defense of such claim, and Third Party Claim if (i) the Indemnified indemnifying Party shall cooperate fails to provide reasonable assurance to the extent reasonably requested by indemnified party of its financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim, (ii) the Indemnifying Third Party in defense Claim primarily seeks injunctive or prosecution thereof and shall furnish such recordsother non-monetary or equitable relief against the indemnified party or (iii) the Third Party Claim relates to any criminal proceeding, information and testimony and attend all such conferencesindictment, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithallegation or investigation). If the Indemnifying indemnifying Party assumes the defense of a Third Party Claim, no compromise or settlement of such Third Party Claim may be effected by the indemnifying Party without the indemnified party’s prior written consent unless (A) there is no finding or admission of any violation of Applicable Laws or any violation of the rights of any Person and no effect on any other third party claims that may be made against the indemnified party, (B) there is a full general release in customary form of all the claims in connection with the Third Party Claim against the indemnified party from all parties to the Third Party Claim, and (C) the sole relief provided is monetary damages that are paid in full by the indemnifying Party (i.e., neither the indemnified party nor any of its Affiliates are required to perform any covenant or refrain from engaging in any activity), and (D) the indemnified party shall elect have no liability with respect to any compromise or settlement of such Third Party Claim effected without its consent. (e) If the indemnifying Party does not admit its liability or admits its liability to defend the indemnified party against a Third Party Claim, but is either unable to assume the defense of such claimThird Party Claim as set forth above or fails to diligently prosecute, indemnify against or settle the Indemnified Third Party Claim, then the indemnified party shall have the right to employ its own counsel in any such case, but defend against the fees and expenses of such counsel shall be Third Party Claim at the sole cost and expense of the Indemnified indemnifying Party, with counsel of the indemnified party’s choosing, subject to the right of the indemnifying Party to admit its liability and assume the defense of the Third Party Claim at any time prior to settlement or final determination thereof (unless the indemnifying Party is unable to assume the defense of such Third Party Claim as set forth above). If the Indemnifying indemnifying Party has assumed not yet admitted its liability to defend the defense indemnified party against a Third Party Claim, the indemnified party shall send written notice to the indemnifying Party of any claim against proposed settlement and the Indemnified Party, the Indemnifying indemnifying Party shall have the right option for ten (10) days following receipt of such notice to settle any claim for which indemnification has been sought (i) admit in writing its liability to indemnify the indemnified party from and is available hereunder; provided thatagainst the liability and either consent to or reject such proposed settlement, to the extent that such settlement requires the Indemnified Party to takein its reasonable judgment, or prohibits (ii) deny liability. Any failure to respond to such notice by the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party indemnified party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not be deemed to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedan election under subsection (ii) above.

Defense of Third Party Claims. Upon Should any claim be made or suit or proceeding be instituted against an Indemnitee which, if prosecuted successfully, would be a matter for which such Indemnitee is entitled to indemnification under this Article VII (a "Third Party Claim"), the obligations and liabilities of the parties hereunder with respect to such Third Party Claim shall be subject to the following terms and conditions: (a) Indemnitee shall give the Indemnifying Party written notice of any such Third Party Claim promptly after receipt by Indemnitee of notice thereof, and the Indemnifying Party may, subject to the prior written consent of the Indemnitee, undertake control of the defense thereof by counsel of his or its own choosing reasonably acceptable to Indemnitee. If Indemnifying Party has undertaken control of the defense of the matter, Indemnitee may participate in the defense through his or its own counsel at his or its own expense. In the event the Shareholder as an Indemnitee desires to assume the defense of the matter, the Shareholders shall provide Buyer with reasonable assurances of the Shareholders' ability to bear the costs of such defense and any likely outcome. If, however, the Indemnifying Party fails or refuses to undertake the defense of such Third Party Claim within fifteen (15) days after written notice of such claim has been delivered to the Shareholders by Indemnitee, Indemnitee shall have the right to undertake the defense, compromise and settlement of such Third Party Claim in any manner which the Indemnitee deems is reasonable with counsel of its own choosing; provided, however that the Shareholders may not settle a claim in a manner that would materially affect Buyer's business or that would exceed the value of the Escrow Shares. In the circumstances described in the preceding sentence, Indemnitee shall, promptly upon its assumption of the defense of such Third Party Claim, make an Indemnification Claim as specified in Section 7.3(b), which shall be deemed an Indemnification Claim that is not a Third Party Claim for the purposes of the procedures set forth herein. Failure of Indemnitee to furnish written notice to the Indemnifying Party of a notice Third Party Claim shall not release the Indemnifying Party from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification his or its obligations hereunder, except to the extent he or it is prejudiced by such failure. (b) Indemnitee and the Indemnifying Party shall have the right to assume cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim, claim and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals furnishing employees of Vista as may be reasonably requested by necessary for the preparation of the defense of any such Third Party Claim or for testimony as witness in any proceeding relating to such claim. (c) Unless the Indemnifying Party in connection therewith. If has failed to fulfill his or its obligations under this Article VII, no settlement by Indemnitee of a Third Party Claim shall be made without the prior written consent by or on behalf of the Indemnifying Party Party, which consent shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall not be at the expense of the Indemnified Partyunreasonably withheld or delayed. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Partya Third Party Claim as contemplated by this Section 7.4, no settlement of such Third Party Claim may be made by the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent by or on behalf of the Indemnified PartyIndemnitee, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon receipt by the An Indemnified Party shall give prompt written notice to any Indemnifying Party of a notice from the Indemnified Party with respect to commencement or assertion of any action, proceeding, demand or claim of by a third party against the Indemnified Party(collectively, for a “third-party action”) in respect of which the such Indemnified Party seeks shall seek indemnification hereunder. Any failure so to notify an Indemnifying Party shall not relieve such Indemnifying Party from any liability that it, he or she may have to such Indemnified Party under this Article 11 unless the failure to give such notice materially and adversely prejudices such Indemnifying Party. The Indemnifying Party shall have the right to assume control of the defense of, settle or otherwise dispose of such third-party action on such terms as it deems appropriate; provided, however, that: (a) the Indemnified Party shall be entitled, at its own expense, to participate in the defense of such claimthird-party action (provided, however, that the Indemnifying Party shall pay the attorneys’ fees of the Indemnified Party if (i) the employment of separate counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such third-party action, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third-party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel); (b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into or making any settlement, compromise, admission or acknowledgment of the validity of such third-party action or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party or if, in the opinion of the Indemnified Party, such settlement, compromise, admission or acknowledgment could have an adverse effect on its business; (c) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such third-party action; and (d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall cooperate be entitled to have sole control over, the defense or settlement, compromise, admission or acknowledgment of any third-party action (i) as to which the Indemnifying Party fails to assume the defense within a reasonable length of time or (ii) to the extent reasonably requested by the third-party action seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, assets or financial condition of the Indemnified Party; provided, however, that the Indemnified Party shall make no settlement, compromise, admission or acknowledgment that would give rise to liability on the part of any Indemnifying Party without the prior written consent of such Indemnifying Party. The parties hereto shall extend reasonable cooperation in connection with the defense or prosecution thereof and of any third-party action pursuant to this Article 11 and, in connection therewith, shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedrequested.

Defense of Third Party Claims. Upon receipt by the An Indemnified Party shall give prompt written notice to any Indemnifying Party of a notice from the Indemnified Party with respect to commencement or assertion of any action, proceeding, demand or claim of by a third party against the Indemnified Party(collectively, for a "third-party action") in respect of which the such Indemnified Party seeks shall seek indemnification hereunder. Any failure so to notify an Indemnifying Party shall not relieve such Indemnifying Party from any liability that it, he or she may have to such Indemnified Party under this Article X except to the extent the failure to give such notice materially and adversely prejudices such Indemnifying Party. The Indemnifying Party shall have the right to assume control of the defense of, settle or otherwise dispose of such third-party action on such terms as he, she or it deems appropriate; provided, however, that: (a) The Indemnified Party shall be entitled, at his, her or its own expense, to participate in the defense of such claimthird-party action (provided, however, that the Indemnifying Parties shall pay the attorneys' fees of the Indemnified Party if (i) the employment of separate counsel shall have been authorized in writing by any such Indemnifying Party in connection with the defense of such third-party action, (ii) the Indemnifying Parties shall not have promptly employed counsel reasonably satisfactory to the Indemnified Party to take charge of such third-party action, or (iii) the Indemnified Party's counsel shall have advised the Indemnified Party in writing, with a copy to the Indemnifying Party, that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel or that there are defenses available to the Indemnified Party that are not available to the Indemnifying Party); (b) The Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into or making any settlement, compromise, admission or acknowledgment of the validity of such third-party action or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party; (c) To the extent that the Indemnified Party participates in the defense of any third party action as contemplated by Section 10.3(a), the Indemnified Party shall obtain the prior written approval of the Indemnifying Party before entering into or making any settlement, compromise, admission or acknowledgment of the validity of such third party action or any liability in respect thereof; (d) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by (e) The Indemnifying Party shall not be entitled to control (but shall be entitled to participate at his, her or its own expense in the defense of), and the Indemnified Party shall cooperate be entitled to have sole control over, the defense or settlement, compromise, admission or acknowledgment of any third-party action (i) as to which the Indemnifying Party fails to assume the defense within a reasonable length of time or (ii) to the extent reasonably requested by the third-party action seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, properties, assets condition (financial or other) or results of operations of the Indemnified Party; provided, however, that the Indemnified Party shall make no settlement, compromise, admission or acknowledgment that would give rise to liability on the part of any Indemnifying Party without the prior written consent of such Indemnifying Party. The parties hereto shall extend reasonable cooperation in connection with the defense or prosecution thereof and of any third-party action pursuant to this Article X and, in connection therewith, shall furnish such records, information information, and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedrequested.

Defense of Third Party Claims. Upon receipt (a) If the Indemnified Party's claim for indemnification is based, under this Agreement, on a claim, demand, investigation, action or proceeding, judicial or otherwise, brought by a third party, and the Indemnifying Party does not object under Section 3.10 hereof, the Indemnifying Party shall, within the 30-day period (or any extended period) referred to in Section 5.1(b) above, assume and conduct the defense of such third-party claim at its sole cost and expense (thereafter designated as the "Case Handler"), with attorneys employed by the Indemnifying Party of a notice from the Indemnified Party with respect and reasonably acceptable to any claim of a third party against the Indemnified Party, for which ; provided that (i) the third-party claim solely seeks (and continues to seek) monetary damages and (ii) the Indemnifying Party expressly agrees in writing that as between the Indemnifying Party and the Indemnified Party seeks indemnification hereunderParty, the Indemnifying Party shall have be solely obligated to satisfy and discharge the right third-party claim (the conditions set forth in clauses (i) and (ii) are collectively referred to assume as "Litigation Conditions"). The Indemnifying Party or the Indemnified Party, as the case may be, may retain attorneys of its own choosing to participate in (but not control) the defense of such claimany third-party claim which the other is defending at its sole cost and expense, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such recordsprovided, information and testimony and attend all such conferenceshowever, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, that the Indemnified Party shall have the right to employ its own counsel to represent such Indemnified Party if, in any such caseIndemnified Party's reasonable judgement, but a conflict of interest between such Indemnified Party and the Indemnifying Party exists in respect of such claim which would make representation of both such parties by one counsel inappropriate, and in such event the fees and expenses of such separate counsel shall be at the expense of the Indemnified Party. If paid by the Indemnifying Party has assumed Party. (b) Notwithstanding the defense of any claim against the Indemnified Partyforegoing, the Indemnifying Party shall have not be entitled to assume the right to settle defense of any claim Third Party Claim (and shall be liable for which indemnification has been sought the fees and is available hereunder; provided that, to the extent that such settlement requires expenses of counsel incurred by the Indemnified Party to takein defending such third party Claim) if the third party claim seeks an order, injunction or prohibits other equitable relief or relief for other than money damages against the Indemnified Party from taking, any action or purports to obligate which the Indemnified PartyParty reasonably determines, then after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the third party claim can be so separated from that for money damages, the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not be entitled to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right portion relating to indemnificationmoney damages (provided, the Indemnifying Party shall indemnify the Indemnified Party shall have for the right to assume control fees and expenses of counsel incurred by Indemnified Party in defending such portion of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or seeking relief for other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedthan money damages).

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the An Indemnified Party with respect shall give prompt written notice to any Person who is obligated to provide indemnification hereunder (an "Indemnifying Party") of the commencement or assertion of any action, proceeding, demand or claim of by a third party against the Indemnified Party(collectively, for a "third- party action") in respect of which the such Indemnified Party seeks shall seek indemnification hereunder, . Any failure so to notify an Indemnifying Party shall not relieve such Indemnifying Party from any liability that it may have to such Indemnified Party under this Article VIII unless the failure to give such notice materially and adversely prejudices such Indemnifying Party. The Indemnifying Party shall have the right to assume control of the defense of, settle or otherwise dispose of such third-party action on such terms as it deems appropriate; provided, however, that: (a) The Indemnified Party shall be entitled, at its own expense, to participate in the defense of such claimthird-party action (provided, however, that the Indemnifying Party shall pay the attorney's fees of one counsel (provided that if any such third-party action is brought in a jurisdiction other than Texas, the Indemnifying Party shall also pay the attorney's fees of one local counsel) to the Indemnified Party if (i) the employment of separate counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such third-party action, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third-party action, (iii) counsel to the Indemnified Party shall have reasonably concluded that there may be defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party, (iv) counsel to the Indemnified Party and the Indemnifying Party shall have advised their respective clients in writing, with a copy delivered to the other party, that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel) or (v) the third-party action is a proceeding brought by a stockholder of the Company (in such stockholder's name or derivatively on behalf of the Company) in respect of the transactions contemplated by this Agreement); (b) The Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into or making any settlement, compromise, admission or acknowledgment of the validity of such third-party action or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party or if, in the opinion of the Indemnified Party, such settlement, compromise, admission or acknowledgment could have a material adverse effect on its business; (c) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such third-party action; and (d) The Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall cooperate be entitled to have sole control over, the defense or settlement, compromise, admission or acknowledgment of any third-party action (i) as to which the Indemnifying Party fails to assume the defense within a reasonable length of time; or (ii) to the extent reasonably requested by the third-party action seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, assets or financial condition of the Indemnified Party; provided, however, that the Indemnified Party shall make no settlement, compromise, admission or acknowledgment that would give rise to liability on the part of any Indemnifying Party without the prior written consent of such Indemnifying Party. The parties hereto shall extend reasonable cooperation in connection with the defense or prosecution thereof and of any third-party action pursuant to this Article VIII and, in connection therewith, shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedrequested.

Defense of Third Party Claims. Upon receipt If indemnification is sought for a claim by or in respect of any third Person (a “Third Party Claim”) against a Parent Indemnified Party or a Company Securityholder Indemnified Party (as applicable, the Indemnifying Party of a notice from “Indemnified Party”), the Indemnified Party with respect shall also give the Stockholder Representative or Parent, as applicable, written notice of such claim as to any claim of a third party against the which such Indemnified Party, for Party may request indemnification hereunder or as to which the Threshold may be applied as soon as is practicable and in any event within ten (10) days of the time that such Indemnified Party seeks learns of such claim; provided, however, that the failure to do so shall not relieve the party with the indemnification hereunderobligation hereunder (the “Indemnifying Party”) from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state all of the information then available regarding the amount and nature of such claim and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. In the case of any Third Party Claim, the Indemnifying Party Stockholder Representative or Parent, as applicable, shall have the right to assume direct, through counsel of its own choosing, the defense or settlement of any such claim, and the Indemnified Party shall cooperate claim at its own expense (subject to the extent reasonably requested by the Indemnifying Party limitations set forth in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewiththis Section 8). If the Indemnifying Party shall elect Stockholder Representative or Parent, as applicable, elects to assume the defense of any such claim, the Stockholder Representative or Parent, as applicable, shall consult with the Indemnified Party for the purpose of allowing the Indemnified Party to participate in such defense. If the Stockholder Representative or Parent, as applicable, elects not to defend or if, after commencing or undertaking any such defense, the Stockholder Representative or Parent, as applicable, fails to diligently prosecute or withdraws from such defense, the Indemnified Party shall have the right to employ its own counsel in any such case, but undertake the fees and expenses of such counsel shall be at the expense of the Indemnified Partydefense. If the Indemnifying Stockholder Representative or Parent, as applicable, does not so assume control of such defense, the Indemnified Party has assumed shall control such defense (the “Controlling Party”). The party not controlling such defense (the “Non-controlling Party”) may participate therein at its own expense, which expense shall not be recoverable as part of any indemnification claim. The Non-controlling Party shall provide, and shall cause the Surviving Corporation and its Subsidiaries to provide, as applicable, the Controlling Party and its counsel with access to its records and personnel relating to any such claim during normal business hours and shall otherwise cooperate with the Controlling Party in the defense or settlement thereof. If the Controlling Party elects to direct the defense of any claim against the Indemnified Partysuch claim, the Indemnifying Non-controlling Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Controlling Party consents in writing to such payment. If the Controlling Party assumes the defense of any such claim and proposes to settle such claim prior to a final judgment thereon or to forego any appeal with respect thereto, then the Controlling Party shall give the Non-controlling Party prompt written notice thereof, and the Non-controlling Party shall have the right to settle any claim for which indemnification has been sought participate in and is available hereunder; provided that, to the extent that approve (such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent approval not to be unreasonably withheld, conditioned ) the settlement or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of or reassume the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may For the avoidance of doubt, in each case where the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining is, collectively, the prior written consent of the Company Securityholder Indemnified Parties, then in each such case all references to such Indemnified Party or Indemnifying Party, as the case may be, in this Section 8(f) shall be deemed (except for provisions relating to an obligation to make or a right to receive any payments) to refer to the Stockholder Representative acting on behalf of such consent not to be unreasonably withheldIndemnified Party or Indemnifying Party, conditioned or delayedas applicable).

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third The indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense conduct and control, through counsel of such claimtheir own choosing, and the Indemnified Party shall cooperate reasonably acceptable to the extent reasonably requested by the Indemnifying Party in defense indemnified party, any third party Legal Action or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseother Claim, but the fees indemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that if the indemnifying party shall fail to defend any such Legal Action or other Claim, then the indemnified party may defend, through counsel of its own choosing, such Legal Action or other Claim, and (so long as it gives the indemnifying party at least fifteen (15) days' written notice of the terms of the proposed settlement thereof and permits the indemnifying party to then undertake the defense thereof) settle such Legal Action or other Claim and to recover the amount of such settlement or of any judgment and the reasonable costs and expenses of such counsel defense. The indemnifying party shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to not compromise or settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, Legal Action or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim other Claim without the prior written consent of the Indemnified Partyindemnified party; provided, however, that if the indemnified party fails or refuses to consent in writing to any compromise of settlement proposed by the indemnifying party and agreed to in writing by the claimant in such consent Legal Action or other Claim (the "Settlement Proposal") within ten (10) business days after receipt of written notice of all of the material terms and conditions of the Settlement Proposal, and such terms and conditions (a) include a full release of the indemnified party from the Legal Action or other Claim which is the subject of the Settlement Proposal, and (b) if the indemnified party is ATS, do not to be unreasonably withheldinclude any term or condition which would restrict in any material manner the continued ownership or operations of the Diablo Assets or the conduct of the Diablo Business in substantially the manner then being theretofore owned, conditioned or delayed. If operated and conducted by ATS, then, unless the Indemnifying Party does not assume indemnifying party forthwith withdraws the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationSettlement Proposal, the Indemnified Party indemnified party (i) shall have the right but not the obligation to assume control undertake the conduct of the defense of such claim through counsel Legal Action or other Claim, and (ii) whether or not it shall so undertake the defense of its choicesuch Legal Action or other Claim, shall bear, and shall indemnify and hold the reasonable indemnifying party harmless from, all Loss and Expense arising from such Legal Action or other Claim (to the extent not theretofore (x) accrued with respect to the costs and expenses of which shall be at the Indemnifying Party’s expense defense of such Legal Action or other Claim or (y) paid with respect to such Legal Action or other Claim) in excess of the amount contained in the event Settlement Proposal, it being understood, in such event, that the Indemnified Party’s right indemnifying party shall bear all Loss and Expense, including subsequently incurred Loss and Expense (including without limitation those attributable to legal fees and -33- expenses) up to the amount contained in the Settlement Proposal, even if the ultimate disposition of indemnification is ultimately established through settlement, compromise such Legal Action or other legal proceeding. In no circumstance may Claim results in payments to the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from claimant of less than those contained in the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedSettlement Proposal.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with With respect to any claim or demand set forth in a notice of claim relating to a third party against Third Party Claim (as defined below), the Indemnifying Stockholders may, at their sole discretion, elect to participate in, and, by giving written notice to the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderto assume, the Indemnifying Party shall have the right to assume the defense of any Third-Party Claim at such claimthe Indemnifying Stockholders’ own expense and by such Indemnifying Stockholders’ own counsel, and the Indemnified Party shall (a) will cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish good faith in such recordsdefense, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall (b) will have the right to employ its own counsel in any (at such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed ’s own expense) to participate in the defense of any claim against the Indemnified Partysuch Third Party Claim, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that(c) will not, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnifying Stockholders, enter into any settlement of such Third Party Claim which would lead to liability or create any financial or other obligation (including but not limited to any indemnification obligation under this Agreement) on the part of the Indemnifying Stockholders, or which provides for injunctive or other non-monetary relief applicable to the Indemnifying Stockholders. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified PartyParty for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Stockholders desire to accept and agree to such offer, such consent not the Indemnifying Stockholders will give written notice to be unreasonably withheld, conditioned or delayedthe Indemnified Party to that effect. If the Indemnifying Indemnified Party does not assume the defense fails to consent and agree to such firm offer within ten days after its receipt of a third party claim and disputes the Indemnified Party’s right to indemnificationsuch notice, then the Indemnified Party shall have may continue to contest or defend such Third Party Claim and, in such event, the right to assume control maximum liability of the defense Indemnifying Stockholders as to such Third Party Claim will not exceed the amount of such claim through counsel of its choice, the reasonable costs of which shall be at settlement offer. The Indemnified Party will provide the Indemnifying Party’s expense in the event that the Indemnified Party’s right Stockholders with reasonable access during normal business hours to books, records and employees of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle necessary in connection with the Indemnifying Stockholders’ defense of any Third Party Claim that is the subject of a claim with for indemnification by an Indemnified Party hereunder. For purposes of this Agreement, a third “Third Party Claim” means any claim, demand, action, suit, or proceeding made or brought by any person or entity who or which is not a party for to this Agreement or who or which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent is not an affiliate of the Indemnifying Party, such consent not any party to be unreasonably withheld, conditioned or delayedthis Agreement.

Defense of Third Party Claims. Upon receipt by (i) From and after the Indemnifying Party delivery of a notice from the Indemnified Party with Notice of Claim in respect to any claim of a third party against the Indemnified PartyThird Party Claim, for which the Indemnified Party seeks indemnification hereunderand until such time as it is determined or agreed that Seller has no liability to Buyer in respect thereof, the Indemnifying Party Seller shall have the right (but not the obligation) to assume the defense of such claimThird Party Claim and to retain (at Seller’s expense) counsel of its choice, and the Indemnified reasonably acceptable to Buyer, to represent Buyer, provided, however, that this option shall not be available to Seller for Third Party shall cooperate to the extent reasonably requested by the Indemnifying Party Claims (i) which may result in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery criminal proceedings, hearingsinjunctions or other equitable remedies in respect of Buyer or its Affiliates or (ii) also involves Seller or its Affiliates as a party and counsel to Seller determines in good faith that joint representation would give rise to a conflict of interest, trials for which defense shall be assumed by Buyer with the right to retain (at Seller’s expense) counsel of its choice, reasonably acceptable to Seller. Seller shall have twenty (20) days from the receipt of the Notice of Claim to notify Buyer whether or not it desires to defend such Third Party Claim failing which Seller shall be deemed to have waived such option and appeals as may be reasonably requested responsible for costs and fees incurred by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the Buyer for defense of such claimThird Party Claim. The Party assuming defense of a Third Party Claim is hereinafter referred to as the “Controlling Party” and the other Party as the “Co-Defendant”. (ii) In defending the Third Party Claim, the Indemnified Controlling Party shall act in good faith and use commercially reasonable means and defenses available to it given due consideration to the interests of Buyer. The Co-Defendant shall take such actions as reasonably necessary or appropriate under the circumstances to cooperate with the Controlling Party and its counsel in defending such Third Party Claim. The Controlling Party shall keep the Co-Defendant reasonably informed of the development of the underlying claim. In the case where the Buyer is the Co-Defendant, the Co-Defendant shall have the right to employ participate, at its sole cost and expense in the defense of a Third Party Claim using its own counsel (unless (x) the Controlling Party shall not have employed counsel in any the defense of such caseClaim after ten (10) days notice; or (y) such Co-Defendant shall have determined in good faith that joint representation would give rise to a conflict of interest, but and in either of the foregoing events such fees and expenses of such counsel shall be at borne by the expense Controlling Party). (iii) Other than settlements, compromises or agreements involving solely monetary payment obligations (in any amount in respect of settlement, compromises or agreements being made by Seller, and in any amount under Ten Thousand US Dollars (USD 10,000) in respect of those being made by Buyer), neither the Indemnified Party. If Co-Defendant nor the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Controlling Party shall have the right conclude any settlements, compromises, agreements or withdrawals in response to settle any claim for which indemnification has been sought and is available hereunder; provided thatclaims, to the extent that such settlement requires the Indemnified Party to takeverifications, or prohibits the Indemnified Party from taking, any action legal or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim administrative proceedings in which it may be involved without the prior written consent of the Indemnified Partyother party, such which consent shall not to be unreasonably withheld, conditioned in particular with respect to the settlement of disputes with customers, for which customary practice and the commercial relationship shall be taken into account and involving the assets, business or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control operations of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedCompany.

Defense of Third Party Claims. Upon (a) Promptly following receipt by the Indemnifying an indemnified Party of notice of a notice from the Indemnified Third Party Claim with respect to which such indemnified Party may be entitled to indemnification pursuant hereto, such indemnified Party shall provide written notice thereof to the Party obligated to indemnify under this Agreement; provided, however, that the failure to so notify the indemnifying Party shall not relieve the indemnifying Party from liability hereunder with respect to such Third Party Claim, except to the extent that the indemnifying Party is materially prejudiced thereby, and in any claim event, only to the extent of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying such prejudice. The indemnifying Party shall have the right right, upon written notice delivered to the indemnified Party within twenty (20) days thereafter, to assume the defense of such claimThird Party Claim. In the event, and however, that the Indemnified indemnifying Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense declines or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect fails to assume the defense of the Third Party Claim within such claimtwenty (20)-day period, then the indemnified Party shall assume the defense of such Third Party Claim. With respect to any Third Party Claim, the Indemnified indemnified Party or the indemnifying Party, whichever is not assuming the defense thereof, shall have the right to employ participate in such defense and to retain its own counsel at such Party’s own expense; provided, however, that if the indemnifying Party assumes the defense of such Third Party Claim, the indemnified Party shall be entitled to participate in any such casedefense and to retain its own counsel at the indemnifying Party’s expense if (i) requested by the indemnifying Party to employ such counsel, but (ii) in the opinion of counsel to the indemnified Party (which counsel shall be reasonably satisfactory to the indemnifying Party) the indemnified Party has potential defenses or counter-claims available to it that are inconsistent with or in addition to those available to the indemnifying Party or (iii) the indemnified Party determines in good faith that there is a reasonable probability that a Third Party Claims may adversely affect it other than as a result of monetary damages for which it would be entitled to indemnification under this Article VIII. In such circumstances, the indemnifying Party shall reimburse the indemnified Party for all reasonable fees and expenses of a single counsel (plus all reasonable fees and expenses of a single local counsel) associated with such counsel defense. The indemnifying Party or the indemnified Party (as the case may be) shall be at all times use commercially reasonable efforts to keep the expense other Party reasonably apprised of the Indemnified Party. If the Indemnifying Party has assumed status of the defense of any claim against matter the Indemnified Partydefense of which it is maintaining. Each of the indemnifying Parties and the indemnified Parties shall reasonably cooperate with each other with respect to the defense of any such matter. In the event of a conflict between this Section 8.5 and Section 7.5, the Indemnifying provisions of Section 7.5 shall control. (b) No indemnified Party shall have may settle or compromise any Third Party Claim or consent to the right entry of any judgment with respect to settle any claim for which indemnification has been is being sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim hereunder without the prior written consent of the Indemnified Party, such consent indemnifying Party (which may not to be unreasonably withheld, conditioned withheld or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification), the Indemnified Party shall have the right to assume control of the defense of unless such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceedingconsent includes an unconditional release of each indemnifying Party from all liability arising out of or resulting from such Third Party Claim. In no circumstance No indemnifying Party may settle or compromise any Third Party Claim or consent to the Indemnified Party compromise or settle a claim entry of any judgment with a third party for respect to which it seeks indemnification from the Indemnifying Party is being sought hereunder without first obtaining the prior written consent of the Indemnifying Partyindemnified Party (which may not be unreasonably withheld or delayed) unless such settlement, compromise or consent (x) includes an unconditional release of each indemnified Party from all liability arising out of, or related to, such consent Third Party Claim and (y) and (ii) does not include a statement as to be unreasonably withheldor an admission of fault, conditioned culpability or delayed.failure to act by or on behalf of any indemnified Party

Defense of Third Party Claims. Upon receipt If an Indemnity Claim is to be made by the Indemnifying Party of a notice from the an Indemnified Party with entitled to indemnification hereunder in respect to of, arising out of or involving a claim made by any claim of a third party against the Indemnified Party(each, for which the Indemnified a “Third-Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim Claim”) against the Indemnified Party, the Indemnified Party shall give a Notice to the Sellers’ Representative or Buyer Indemnifying Parties, as the case may be, as soon as practicable after becoming aware of such Third-Party Claim. The failure of any Indemnified Party to give timely Notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Sellers’ Representative or Buyer Indemnifying Parties, as the case may be, demonstrate that an Indemnifying Party was actually prejudiced by such failure. The Sellers’ Representative or Buyer Indemnifying Parties, as the case may be, shall have 30 days (or less if the right nature of the Third-Party Claim requires) from its receipt of the Notice to settle any claim for notify the Indemnified Party whether (subject to the written consent of the Indemnified Party, which indemnification has been sought consent may be withheld in its sole and is available hereunderabsolute discretion) the Indemnifying Party or Parties desire, at the Indemnifying Party’s and Parties’ sole cost and expense and by counsel of its own choosing (who shall be reasonably acceptable to the Indemnified Party or Parties), to assume the defense against such Third-Party Claim; provided that, to the extent that such settlement requires if the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to take, or prohibits the such Indemnified Party that are different from taking, any action or purports additional to obligate the Indemnified those available to an applicable Indemnifying Party, then such Indemnified Party shall be entitled, at the Indemnifying Parties’ cost, risk and expense, to one separate counsel of its own choosing (who shall be reasonably acceptable to the Indemnifying Party or Parties). The Indemnifying Party or Parties shall not compromise or settle such claim without Third-Party Claim only with the prior written consent of the Indemnified Party, such consent not to be unreasonably withheldwithheld or delayed, conditioned provided that any such compromise or settlement shall provide for the absolute and unconditional release of the Indemnified Parties from any Liability with respect to such Third-Party Claim and shall provide for only the payment of monetary Damages and shall not create any continuing obligation of the Indemnified Party or any of its Affiliates or otherwise adversely affect the operations of the Indemnified Party or any of its Affiliates. If the Sellers’ Representative or Buyer Indemnifying Parties, as the case may be, assume the defense of a Third-Party Claim, the Indemnified Party shall cooperate in all reasonable respects with the Sellers’ Representative or Buyer Indemnifying Parties, as the case may be, and its attorneys in the investigation, trial and defense of such Third-Party Claim and any appeal arising therefrom, at the cost and expense of the Indemnifying Party; provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Sellers’ Representative or Buyer Indemnifying Parties, as the case may be, fail to assume the defense of such claim within fifteen (15) calendar days after receipt of the Notice (whether as a result of its election not to assume such defense or the refusal of the Indemnified Party or Parties to grant a request of the Indemnifying Party or Parties to assume such defense), the Indemnified Party against which such claim has been asserted will have the right to undertake, at the Indemnifying Party’s cost, risk and expense, the defense, compromise or settlement of such Third-Party Claim on behalf of and for the account and risk of the Indemnifying Party; provided, however, that such claim shall not be compromised or settled without the written consent of the Sellers’ Representative or Buyer Indemnifying Parties, as the case may be, which consent shall not be unreasonably withheld or delayed. If the Indemnifying Indemnified Party does not assume assumes the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationclaim, the Indemnified Party shall have will keep the right to assume control Sellers’ Representative or Buyer Indemnifying Parties, as the case may be, reasonably informed of the progress of any such defense, compromise or settlement; provided, however, that the Indemnifying Party may, at its own cost, participate in the investigation, trial and defense of such claim through counsel of its choice, the reasonable costs of which lawsuit or action and any appeal arising therefrom. The Indemnifying Party or Parties shall be at the Indemnifying Party’s expense liable for any settlement of any Third-Party Claim effect ed pursuant to and in the event that the Indemnified Party’s accordance with this Section 8.04 and for any final judgment (subject to any right of indemnification is ultimately established through settlementappeal), compromise or other legal proceeding. In no circumstance may subject to the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedlimitations set forth in Section 8.02.

Defense of Third Party Claims. Upon receipt If the claim or demand set forth in the Notice of Claim given by Indemnitee pursuant to Section 9.3 hereof is a claim or demand asserted by a third party, Indemnitor shall have ten (10) business days after the date on which such Notice of Claim is given by the Indemnifying Party Indemnitee to notify Indemnitee in writing of a notice from the Indemnified Party with respect Indemnitor's election to any claim of a defend such third party against claim or demand on behalf of Indemnitee. If Indemnitor elects to defend such third party claim or demand, Indemnitee shall make available to Indemnitor and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnified PartyIndemnitee's possession or under the Indemnitee's control as is reasonably required by Indemnitor and shall otherwise cooperate with and assist Indemnitor in the defense of such third party claim in good faith. Indemnitee shall not pay, for which the Indemnified Party seeks indemnification hereundersettle or compromise such third party claim or demand. If Indemnitor elects to defend such third party claim or demand, the Indemnifying Party Indemnitee shall have the right to assume participate in the defense of such claimthird party claim or demand, and at Indemnitee's own expense. In the Indemnified Party shall cooperate event, however, that the named parties to the extent action or proceeding include both Indemnitor and Indemnitee and Indemnitee reasonably requested determines that representation by counsel to Indemnitor of both Indemnitor and Indemnitee may present such counsel with a conflict of interest, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and Indemnitor will pay the Indemnifying Party in defense or prosecution thereof reasonable fees and shall furnish disbursements of such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithcounsel. If the Indemnifying Party shall Indemnitor does not elect to assume the defense of defend such claimthird party claim or demand or does not defend such third party claim or demand in good faith, the Indemnified Party Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at Indemnitor's expense, to employ its own counsel defend such third party claim or demand; provided, however, that (a) Indemnitor shall not have any obligation to participate in the defense of, or defend, any such case, but the fees third party claim or demand; and expenses (b) Indemnitee's defense of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed or its participation in the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes or demand shall not in any way diminish or lessen the Indemnified Party’s right to indemnification, obligations of Indemnitor under the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right agreements of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedset forth in this Article 9.

Defense of Third Party Claims. Upon receipt by the Indemnifying of an Indemnity Claim Notice involving a Third Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified an indemnifying Party seeks indemnification hereunderbelieves it may have an obligation of indemnity under this Agreement, the Indemnifying indemnifying Party shall have the shall, if it so elects in accordance with this Section 8.9 (without prejudice to its right to contest its obligation of indemnity under this Agreement), assume the defense of such claim, the Third Party Claim with counsel selected by the indemnifying Party and reasonably satisfactory to the Indemnified Party indemnified Person as provided hereinbelow. The indemnified Person shall cooperate in all reasonable respects; provided, however, it shall not be obligated to the extent reasonably requested by the Indemnifying Party incur any out-of-pocket cost or expense in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithdefense. If any Third Party Claim involves a fact pattern wherein each Party may have an obligation to indemnify the Indemnifying other Party, each Party shall elect to may assume the defense of such claimand hire counsel for that portion of the Third Party Claim for which it may have an obligation of indemnity. In all instances, the Indemnified indemnified Person may employ separate counsel and participate in the defense of any Third Party shall have Claim; provided, however, if the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying indemnifying Party has assumed the defense of any claim against a Third Party Claim pursuant to this Section 8.9 and has agreed to indemnify the Indemnified Partyindemnified Person, the Indemnifying fees and expenses of counsel employed by the indemnified Person shall be borne solely by the indemnified Person. If (a) the underlying Third Party Claim meets any applicable per-Claim threshold, (b) the underlying Third Party Claim plus all previously asserted underlying Claims that meet any applicable per-Claim threshold have exceeded the Indemnity Deductible Amount, if applicable in the circumstances, and (c) the indemnifying Party elects, by written notice, to undertake the defense of the Third Party Claim within thirty (30) Days after receipt of the Indemnity Claim Notice, then, subject to the limitations on indemnity contained in this Agreement, (i) the indemnifying Party shall have defend the right indemnified Person against such Third Party Claim, (ii) the indemnifying Party shall pay any judgment entered or settlement with respect to settle any claim for which indemnification has been sought and is available hereunder; provided thatsuch Third Party Claim, to (iii) the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying indemnifying Party shall not settle consent to the entry of any judgment or enter into any settlement with respect to such claim Third Party Claim that (A) does not include a provision whereby the plaintiff or claimant in the matter releases the indemnified Person from all liability with respect to such Third Party Claim and (B) would restrict such indemnified Person’s ability to conduct its business, and (iv) the indemnified Person shall not consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim without the indemnifying Party’s prior written consent of the Indemnified Partyconsent, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying indemnifying Party does has not assume elected to undertake the defense of a third party claim and disputes Third Party Claim, or if the Indemnified Party’s right indemnifying Party assumes the defense of a Third Party Claim pursuant to indemnificationthis Section 8.9 but fails to diligently prosecute or settle the Third Party Claim, then the Indemnified Party indemnified Person shall have the right to assume defend, at the sole cost and expense of the indemnifying Party (to the extent the indemnified Person is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings. In such instances, the indemnified Person shall have full control of the such defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event and proceedings; provided that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may indemnified Person shall not settle such Third Party Claim without the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying indemnifying Party, such which consent shall not to be unreasonably withheld, conditioned or delayed; provided, however, that if the indemnifying Party fails to notify the indemnified Person in writing as to whether or not it consents to such proposed settlement within the shorter of (i) fifteen (15) Days following its receipt of notice of such proposed settlement from the indemnified Person and (ii) the offer period under such proposed settlement (but in no event less than five (5) Business Days following its receipt of notice of such proposed settlement), then such consent shall be deemed given. Any notification by such indemnifying Party that it is withholding its consent to any proposed settlement shall provide a reasonably detailed explanation of the reasons for withholding its consent. The indemnifying Party may participate in, but not control, any defense or settlement controlled by an indemnified Person pursuant to this Section 8.9, and the indemnifying Party shall bear its own costs and expenses with respect to such participation. Notwithstanding the other provisions of this Section 8.9, if the indemnifying Party disputes its potential liability to the indemnified Person under this Section 8.9 and if such dispute is resolved in favor of the indemnifying Party, the indemnifying Party shall not be required to bear any costs and expenses of the Third Party Claim or the indemnified Person’s defense pursuant to this Section 8.9 and, to the extent incurred by the indemnifying Party, such costs and expenses shall be promptly reimbursed by the indemnified Party.

Defense of Third Party Claims. Upon receipt by All claims for indemnification made under this Agreement resulting from, related to or arising out of a third-party claim against an Indemnified Party shall be made in accordance with the following procedures. An Indemnified Party shall give prompt written notification to the Indemnifying Party of the commencement of any action, suit or proceeding relating to a notice from third-party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a third party. Such notification shall include a description in reasonable detail (to the extent known by the Indemnified Party) of the facts constituting the basis for such third-party claim and the amount of the Damages claimed. Within 15 days after delivery of such notification, the Indemnifying Party with respect may, upon written notice thereof to any claim of a third party against the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim at its sole cost and expense with counsel reasonably satisfactory to the Indemnified Party; provided that (i) the Indemnifying Party may only assume control of such defense if it acknowledges in writing to the Indemnified Party that any Damages or other Liabilities that may be assessed against the Indemnified Party in connection with such third-party claim constitute Damages for which the Indemnified Party seeks indemnification hereunder, shall be indemnified pursuant to this Section 4 and (ii) the Indemnifying Party shall have the right to may not assume control of the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party a third-party claim involving criminal liability or in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of which equitable relief is sought against the Indemnified Party. If the Indemnifying Party has assumed does not, or is not permitted under the defense terms hereof to, so assume control of any claim against such defense, the Indemnified Party, Party shall control such defense. The Party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought assumes control of such defense and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to takesuch action, suit, proceeding or claim, the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith shall be considered “Damages” for purposes of this Agreement; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel for all Indemnified Parties. The party controlling such defense shall keep the other party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other party with respect thereto. The Indemnified Party shall not agree to any settlement of, or prohibits the entry into judgment arising from, any such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim that does not include a complete release of the Indemnified Party from taking, all liability with respect thereto or that imposes any action liability or purports to obligate obligation on the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the An Indemnified Party with respect shall give prompt written notice to any entity or person who is obligated to provide indemnification under Section 11.1 or 11.2 (an "Indemnifying Party") of the commencement or assertion of any action, proceeding, demand, or claim of by a third party against the Indemnified Party(collectively, for a "third-party action") in respect of which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate seek indemnification hereunder. Any failure so to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the notify an Indemnifying Party shall not settle relieve such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume from any liability that it, he, or she may have to such Indemnified Party under this Article XI unless the defense of a third party claim failure to give such notice materially and disputes the Indemnified adversely prejudices such Indemnifying Party’s right to indemnification, the Indemnified . The Indemnifying Party shall have the right to assume control of the defense of, settle, or otherwise dispose of such claim through counsel of its choicethird-party action on such terms as it deems appropriate; provided, the reasonable costs of which however, that: (a) The Indemnified Party shall be entitled, at its own expense, to participate in the defense of such third-party action (provided, however, that the Indemnifying Parties shall pay the attorneys' fees of the Indemnified Party if (i) the employment of separate counsel shall have been authorized in writing by any such Indemnifying Party in connection with the defense of such third-party action, (ii) the Indemnifying Parties shall not have employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third-party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party’s , or (iv) the Indemnified Party's counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel); (b) The Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into or making any settlement, compromise, admission, or acknowledgment of the validity of such third-party action or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission, or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party or if, in the opinion of the Indemnified Party, such settlement, compromise, admission, or acknowledgment could have a material adverse effect on its business; (c) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such third-party action; and (d) The Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the event defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement, compromise, admission, or acknowledgment of any third-party action (i) as to which the Indemnifying Party fails to assume the defense within a reasonable length of time or (ii) to the extent the third-party action seeks an order, injunction, or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, assets, or financial condition of the Indemnified Party; PROVIDED, HOWEVER, that the Indemnified Party’s right of indemnification is ultimately established through Party shall make no settlement, compromise compromise, admission, or other legal proceeding. In no circumstance may acknowledgment that would give rise to liability on the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the part of any Indemnifying Party without first obtaining the prior written consent of the such Indemnifying Party. The parties hereto shall extend reasonable cooperation in connection with the defense of any third-party action pursuant to this Article XI and, in connection therewith, shall furnish such consent not to records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be unreasonably withheld, conditioned or delayedreasonably requested.

Defense of Third Party Claims. Upon receipt All claims for indemnification by any Indemnified Party involving third party actions, as defined below, shall be asserted and resolved as follows: (i) An Indemnified Party shall give prompt written notice (the "Claim Notice") to any entity or person who is obligated to provide indemnification hereunder (an "Indemnifying Party") of the commencement or assertion of any action, proceeding, demand or claim by a third party (collectively, a "third-party action") in respect of which such Indemnified Party shall seek indemnification hereunder. Any failure so to notify an Indemnifying Party shall not relieve such Indemnifying Party from any liability that it, he or she may have to such Indemnified Party under this Article X unless the failure to give such notice prejudices such Indemnifying Party in any material respect. (ii) The Indemnifying Party shall have thirty (30) days (the "Notice Period") from the delivery of the Claim Notice in accordance with Section 10.8 to notify the Indemnified Party (i) whether or not it disputes entitlement of the Indemnified Party to indemnification hereunder with respect such claim or demand, or (ii) whether or not it agrees to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer, or other pleading which it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party of a notice from and not materially prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party with respect within the Notice Period that it agrees to any defend the Indemnifying Party against such claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderor demand and except as hereinafter provided, the Indemnifying Party shall have the right to assume defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. (iii) The Indemnified Party shall be entitled, at his, her or its own expense, to participate in the defense of such claimthird-party action (provided, however, that the Indemnifying Parties shall pay the attorneys' fees of the Indemnified Party only if (1) the employment of separate counsel shall have been authorized in writing by any such Indemnifying Parties in connection with the defense of such third-party action, (2) the Indemnifying Parties shall not have employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third-party action, or (3) the Indemnified Party's counsel shall have advised the Indemnified Party in writing, with a copy to the Indemnifying Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel). (iv) The Indemnifying Party shall obtain the prior written approval of the Indemnified Party, which approval shall not be unreasonably withheld, before entering into or making any settlement, compromise, admission, or acknowledgment of the validity of such third-party action or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission, or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party. (v) Without the prior consent of the applicable Indemnified Party, which shall not be unreasonably withheld, no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such third-party action. (vi) The Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall cooperate be entitled to have sole control over, the extent reasonably requested by defense or settlement, compromise, admission, or acknowledgment of any third-party 77 action (A) as to which the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect fails to assume the defense within a reasonable length of such claimtime or (B) to the extent the third-party action seeks an order, injunction, or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, assets, or financial condition of the Indemnified Party; provided, however, that the Indemnified Party shall have make no settlement, compromise, admission, or acknowledgment that would give rise to liability on the right to employ its own counsel in part of any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of such Indemnifying Party, which consent shall not be unreasonably withheld. (vii) The parties hereto shall extend reasonable cooperation in connection with the defense of any third-party action pursuant to this Article X and, if appropriate and related to the claim in question, in making any counterclaim against the person asserting the complaint against the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationIn connection therewith, the Indemnified Party parties shall have the right to assume control of the defense of furnish such claim through counsel of its choicerecords, the reasonable costs of which shall information, and testimony as may be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedreasonably requested.

Defense of Third Party Claims. Upon receipt by In the event of the occurrence of any event that any party asserts is an indemnifiable event pursuant to this Section 9, the party claiming indemnification (the "Indemnified Party") shall provide prompt notice to the party required to provide indemnification (the "Indemnifying Party of a notice from Party"), specifying in reasonable detail the Indemnified Party facts and circumstances with respect to any such claim or Legal Proceeding and the basis for which indemnification is available hereunder. If such claim or Legal Proceeding involves the claim of a any third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderparty, the Indemnifying Party shall have the right to assume control the defense or settlement (using counsel reasonably acceptable to the Indemnified Party); provided, however, that (a) the Indemnified Party shall be entitled to participate in the defense of such claimLegal Proceeding at its own expense, (b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party (which approval shall not be unreasonably withheld or delayed) before entering into any settlement of such Legal Proceeding if, pursuant to or as a result of such settlement, injunctive or other non-monetary relief would be imposed against the Indemnified Party, and (c) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall cooperate be entitled to have sole control over, with respect to the defense or settlement of any claim or Legal Proceeding to the extent reasonably requested by the Indemnifying Party in defense such claim or prosecution thereof and shall furnish such recordsLegal Proceeding seeks an order, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, injunction or other equitable relief or a declaration against the Indemnified Party shall have which, if successful, would materially interfere with the right to employ its own counsel in any such casebusiness, but the fees and expenses of such counsel shall be at the expense operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, or SRC or to the extent that such settlement requires claim or Legal Proceeding is also brought against the Indemnifying Party and the Indemnifying Party and the Indemnified Party to takehave conflicting interests in the claim or Legal Proceeding, or prohibits the Indemnified Party from takingincluding different defenses, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, provided that the Indemnified Party shall have provide written notice to the right Indemnifying Party of its election to assume control of over the defense of such claim through counsel pursuant to this Section 9.6. Notwithstanding anything to the contrary in the foregoing, in no event shall the Stockholders, their heirs, executors or legal representatives be entitled to control the defense of its choiceany Legal Proceeding against the Parent Indemnitees involving the claim of any Governmental Body with which any of the Parent Indemnitees are conducting business at the time such Legal Proceeding is brought; provided, however, that the reasonable costs of which Stockholders shall be entitled, at the Indemnifying Party’s expense their own expense, to participate (in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, non-leading role) in such consent not to be unreasonably withheld, conditioned or delayedLegal Proceedings.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with With respect to any claim or demand set forth in a notice of claim relating to a third party against Third Party Claim (as defined below), the Indemnifying Shareholder may, at their sole discretion, elect to participate in, or, by giving written notice to the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderto assume, the Indemnifying Party shall have the right to assume the defense of any Third-Party Claim at such claimthe Indemnifying Shareholder’s own expense and by such Indemnifying Shareholder’s own counsel, and the Indemnified Party shall (a) will cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish good faith in such recordsdefense, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall (b) will have the right to employ its own counsel in any (at such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed ’s own expense) to participate in the defense of any claim against the Indemnified Partysuch Third Party Claim, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that(c) will not, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnifying Shareholder, enter into any settlement of such Third Party Claim which would lead to liability or create any financial or other obligation (including but not limited to any indemnification obligation under this Agreement) on the part of the Indemnifying Shareholder, or which provides for injunctive or other non-monetary relief applicable to the Indemnifying Shareholder. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified PartyParty for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Shareholder desires to accept and agree to such offer, such consent not the Indemnifying Shareholder will give written notice to be unreasonably withheld, conditioned or delayedthe Indemnified Party to that effect. If the Indemnifying Indemnified Party does not assume the defense fails to consent and agree to such firm offer within ten days after its receipt of a third party claim and disputes the Indemnified Party’s right to indemnificationsuch notice, then the Indemnified Party shall have may continue to contest or defend such Third Party Claim and, in such event, the right to assume control maximum liability of the defense Indemnifying Shareholder as to such Third Party Claim will not exceed the amount of such claim through counsel of its choice, the reasonable costs of which shall be at settlement offer. The Indemnified Party will provide the Indemnifying Party’s expense in the event that the Indemnified Party’s right Shareholder with reasonable access during normal business hours to books, records and employees of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle necessary in connection with the Indemnifying Shareholder’s defense of any Third Party Claim that is the subject of a claim with for indemnification by an Indemnified Party hereunder. For purposes of this Agreement, a third “Third Party Claim” means any claim, demand, action, suit, or proceeding made or brought by any person or entity who or which is not a party for to this Agreement or who or which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent is not an affiliate of the Indemnifying Party, such consent not any party to be unreasonably withheld, conditioned or delayedthis Agreement.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the An Indemnified Party with respect shall give prompt written notice to any entity or person who is obligated to provide indemnification hereunder (an "Indemnifying Party") of the commencement or assertion of any action, proceeding, demand, or claim of by a third party against the Indemnified Party(collectively, for a "third-party action") in respect of which the such Indemnified Party seeks shall seek indemnification hereunder, the . Any failure so to notify an Indemnifying Party shall relieve such Indemnifying Party from any liability that it, he, or she may have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, under this Article XI to the extent that the failure to give such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified notice materially and adversely prejudices such Indemnifying Party, then the . The Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of, settle, or otherwise dispose of such claim through counsel of its choicethird-party action on such terms as they deem appropriate; provided, the reasonable costs of which however, that: (a) The Indemnified Party shall be entitled, at its own expense, to participate in the defense of such third-party action (provided, however, that the Indemnifying Party’s expense Parties shall pay the attorneys' fees of the Indemnified Party if (i) the employment of separate counsel shall have been authorized in writing by any such Indemnifying Party in connection with the event that defense of such third- party action, (ii) such third-party action could reasonably be expected to result in Buyer Indemnified Costs in excess of the remainder of the Holdback Amount then held by the Escrow Agent pursuant to the terms of the Indemnification Escrow Agreement (and not subject to pending claims), or (iii) the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may 's counsel shall have advised the Indemnified Party compromise or settle a claim in writing, with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of copy delivered to the Indemnifying Party, that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel); (b) The Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into or making any settlement, compromise, admission, or acknowledgment of the validity of such consent third-party action or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission, or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party or if, in the opinion of the Indemnified Party, such settlement, compromise, admission, or acknowledgment could reasonably be expected to have an adverse effect on its business which approval shall not to be unreasonably withheldwithheld or delayed (it shall not be deemed unreasonable for Buyer to withhold consent with respect to any settlement, conditioned compromise, admission, or delayed.acknowledgment if the amount of Buyer Indemnified Costs resulting therefrom could reasonably be expected to exceed the remainder of the Holdback

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against any party entitled to the Indemnified Partybenefit of indemnity hereunder with respect thereto, for which a Claim Notice thereof shall be given to the Indemnified Party seeks indemnifying party as promptly as practicable (and, in any event, within thirty (30) days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the Indemnifying Party shall have extent that the right to assume indemnifying party demonstrates that the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested claim is prejudiced by the Indemnifying Party indemnified party’s delay or failure to give such notice. After such notice, if the indemnifying party shall acknowledge, in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatwriting, to the extent indemnified party that the indemnifying party is obligated under the terms of its indemnity hereunder in connection with such settlement requires the Indemnified Party to take, lawsuit or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Partyaction, then the Indemnifying Party indemnifying party shall not settle be entitled, if it elects to do so, at its own cost, risk and expense, (i) to take control of the defense and investigation of such claim lawsuit or action, (ii) to employ and engage legal counsel of its own choice, but, in any event, reasonably acceptable to the indemnified party, to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event, the indemnified party shall be entitled, at the indemnifying party’s cost, risk and expense, to separate counsel of its own choosing. The indemnifying party shall not, without the prior written consent of the Indemnified Partyindemnified party, such consent which shall not to be unreasonably withheld, conditioned or delayed. If , (i) settle or compromise any Claim or consent to the Indemnifying Party entry of any judgment which does not assume include an unconditional written release, by the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationclaimant or plaintiff, the Indemnified Party shall have the right to assume control of the defense indemnified party, from all liability in respect of such claim through counsel Claim or (ii) settle or compromise any Claim if the settlement imposes equitable remedies or material obligations on the indemnified party other than financial obligations for which such indemnified party will be indemnified hereunder. No Claim which is being defended in good faith by the indemnifying party in accordance with the terms of its choice, the reasonable costs of which this Agreement shall be at settled or compromised by the Indemnifying Party’s expense in indemnified party without the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, such which consent shall not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon After receipt by any Indemnified Party of notice of the existence of any claim made or threatened by a third party, to which the indemnification obligations hereunder apply, such Indemnified Party shall give written notice thereof to the Indemnifying Party, but the omission to so notify the Indemnifying Party of a notice will not relieve the Indemnifying Party from any liability except to the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, extent that the Indemnifying Party shall have been prejudiced as a result of the failure in giving such notice. Such notice shall state the information then available regarding the amount and nature of such claim and shall specify the provision or provisions of this Agreement under which the liability or obligation is asserted. If within twenty (20) days after receiving such notice, the Indemnifying Party gives written notice to such Indemnified Party stating that they dispute and intend to defend against such claim at its own cost and expense (subject to the consent of such Indemnified Party which consent shall not be unreasonably withheld), such Indemnified Party shall make no payment on such claim as long as the Indemnifying Party is conducting a good faith and diligent defense. Notwithstanding anything herein to the contrary, such Indemnified Party shall at all times have the right to assume fully participate in such defense at such Indemnified Party's own expense directly or through counsel; provided, however, if the named parties to the action include both (i) any Indemnifying Party and (ii) such Indemnified Party and representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the expense of one separate counsel for such Indemnified Party shall be paid by the Indemnifying Party. If no timely notice of intent to dispute and defend is given by the Indemnifying Party, or if such diligent good faith defense is not being or ceases to be conducted, after written notice to the Indemnifying Party and the failure of the Indemnifying Party to initiate or conduct such a defense within fifteen (15) days after such notice, such Indemnified Party, at the expense of the Stockholders, shall have the right but not the obligation to undertake the defense of such claim, liability or expense, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of same (exercising reasonable business judgment). If such claim, liability or expense is one that by its nature cannot be defended solely by the Indemnifying Party, then such consent not to be unreasonably withheld, conditioned or delayedIndemnified Party shall make available all information and assistance that the Indemnifying Party may reasonably request and shall cooperate with the Indemnifying Party in such defense.

Defense of Third Party Claims. Upon receipt If any Action (including the commencement of any administrative proceeding, including an administrative proceeding with respect to Taxes) is filed against any Indemnified Party, written notice thereof shall be given by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim Person from whom or which indemnification will be sought pursuant to the terms of a third party against this Agreement as promptly as practicable. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the Indemnified Partyextent that the Indemnifying Parties have suffered actual prejudice by such failure. After such notice, for which if the relevant Indemnifying Party shall acknowledge in writing to the Indemnified Party seeks indemnification hereunder, that the relevant Indemnifying Party shall have be obligated under the right terms of its indemnity hereunder in connection with such Action, then the Indemnifying Parties shall be entitled, if they so elect at their own cost, risk and expense, (i) to take control of the defense and investigation of such Action, (ii) to employ and engage attorneys of their own choice to handle and defend the same unless the named parties to such action or proceeding include both the relevant Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised by counsel that joint counsel for the Indemnified Party and the relevant Indemnifying Party shall result in a conflict under the applicable rules of professional conduct, in which event the Indemnified Party shall be entitled, at the Indemnifying Parties’ cost, risk and expense to separate counsel of its own choosing, and (iii) to compromise or settle such claim; provided that the relevant Indemnifying Party shall not agree to any compromise or settlement that does not include a complete release of the Indemnified Party from all Liability with respect thereto or that imposes any Liability on the Indemnified Party without the consent of Indemnified Party. The Indemnified Party may, at its own cost and expense, participate in (but not control) the investigation, trial and defense of such Action and any appeal arising therefrom. If the Indemnifying Parties fail to assume the defense of such claimclaim within 30 days after receipt of the notice of claim by the Indemnifying Parties, and the Indemnified Party shall cooperate against which such claim has been asserted will (upon delivering notice to such effect to the extent reasonably requested by Indemnifying Parties) have the right to undertake, at the Indemnifying Party in defense or prosecution thereof Parties’ cost, risk and shall furnish such recordsexpense, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim on behalf of and for the account and risk of the Indemnifying Parties (but shall not have authority to settle such claim without the consent of the Indemnifying Parties). If the Indemnified Party assumes the defense of the claim, the Indemnified Party shall have will keep the right to employ its own counsel in Indemnifying Parties reasonably informed of the progress of any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayeddefense.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the The Indemnifying Party shall have the right to compromise or defend, at its own expense and by its counsel, any third party claim made against the Indemnitee; provided, however, that no compromise of any claim shall be made without the consent of the Indemnitee unless such compromise results in the full and unconditional release of all claims against the Indemnitee by the person asserting such claim. The Indemnifying Party shall notify the Indemnitee whether it elects to assume the defense of such claim, and any third party claim within ten (10) days after the Indemnified Indemnifying Party receives notice thereof from the Indemnitee as provided in Section 8.3. The Indemnitee shall cooperate to with the extent Indemnifying Party or its counsel in the defense against any such third party claim and in any compromise thereof. Such cooperation shall include, but not be limited to, furnishing the Indemnifying Party with any books, records or information reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such recordsParty. Except as provided below, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by after the Indemnifying Party in connection therewith. If has notified the Indemnitee of its intention to undertake to compromise or defend any such third party claim, the Indemnifying Party shall elect to assume not be liable for any additional legal expense incurred by the defense of such claimIndemnitee. However, the Indemnified Party Indemnitee shall have the right to employ retain its own counsel and participate in any such case, but the fees and expenses defense of such counsel shall be claim at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified PartyIndemnitee, in which case the Indemnifying Party shall have cooperate in providing information to and consulting with the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to Indemnitee about the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayedclaim. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationsuch claim, the Indemnified Party shall have the right to assume control of the defense of Indemnitee may defend against or settle such claim through counsel of its choicein such manner and on such terms as it deems appropriate, the reasonable costs of which and shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from indemnified by the Indemnifying Party without first obtaining for the prior written amount of any judgment or settlement and for all losses or expenses, including attorneys' and other professional fees and costs, incurred by the Indemnitee in connection with the defense or settlement of such claim. Any issue can only be settled with the consent of the Indemnifying PartyIndemnitee, such in the understanding that if no consent not can be reached, the parties will have to be unreasonably withheld, conditioned or delayedresolve the dispute by arbitration according to point 9.2 of this agreement.

Defense of Third Party Claims. Upon receipt An Indemnitee against whom a third party claim is made shall give the Indemnifying Party an opportunity to defend such claim, at the Indemnifying Party's sole expense and with counsel selected by the Indemnifying Party of a notice from and reasonably satisfactory to the Indemnified Party with respect to any claim of a third party against the Indemnified PartyIndemnitee, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party provided that such Indemnitee at all times also shall have the right to participate fully in defense at its sole expense. Failure of an Indemnifying Party to give an Indemnitee written notice of its election to defend such claim within thirty (30) days after receipt of notice thereof shall be deemed a waiver by such Indemnifying Party of its right to defend such claim. If an Indemnifying Party shall elect not to assume the defense of such claim (or if such Indemnifying Party shall be deemed to have waived its right to defend such claim), the Indemnitee against whom such claim is made shall have the right, but not the obligation, to undertake the sole defense of, and to compromise or settle, the Indemnified Party shall cooperate to claim on behalf, for the extent reasonably requested by account, and at the risk and expense, of the Indemnifying Party (including without limitation the payment by such Indemnifying Party of the Indemnitees' reasonable attorneys' fees); provided, however, that if the Indemnitee undertakes the sole defense of such claim on behalf of the account, and at the risk and expense of the Indemnifying party, it shall defend such claim in defense or prosecution thereof good faith and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by apprise the Indemnifying Party in connection therewithfrom time to time as the Indemnitee deems appropriate of the progress of such defense. If one or more of the Indemnifying Party shall elect to assume Parties assumes the defense of such claim, the Indemnified obligation of such Indemnifying Party hereunder as to such claim shall have include taking all steps necessary in the right defense or settlement of such claim. The Indemnifying Party, in the defense of such claim, shall not consent to employ its own counsel the entry of any judgment or enter into any settlement (except with the written consent of the Indemnitee) which does not include as an unconditional term thereof the giving by the claimant to the Indemnitee against whom such claim is made of a release from all liability in respect of such claim (which release shall exclude only any obligations incurred in connection with any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Partysettlement). If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, is one that cannot by its nature be defended solely by the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party Indemnitee shall not settle such claim without the prior written consent of the Indemnified Partymake available, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event 's expense, all information and assistance that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedreasonably may request.

Defense of Third Party Claims. Upon receipt If any Valid Claim arises out of or involves a claim or demand made by any person against the Second Step Surviving Corporation or the indemnified party (a “Third Party Claim”), then the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the Indemnifying indemnifying party; provided, that such counsel is not reasonably objected to by the indemnified party; and provided further, that if either (i) any indemnified party reasonably concludes that there may be one or more legal defenses available to it that are different from or in addition to (and are inconsistent with) those available to the indemnifying party, or that a conflict or potential conflict exists between any indemnified party, on the one hand, and any indemnifying party, on the other hand (a “Conflicting Matter”), or (ii) the Third Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified PartyClaim seeks an order, injunction or other equitable relief or relief for other than money damages which the Indemnified Party seeks indemnification hereunderindemnified party reasonably concludes cannot be separated from any related claim for money damages (a “Specific Performance Matter”), the Indemnifying Party shall indemnifying party will not have the right to assume direct the defense of such claimaction on behalf of such indemnified party with respect to such Conflicting Matter or Specific Performance Matter, and the Indemnified Party indemnified party shall cooperate to direct the extent reasonably requested by defense of the Indemnifying Party in defense portion of such claim that constitutes a Conflicting Matter or prosecution thereof and shall furnish such recordsSpecific Performance Matter through counsel (including a local counsel, information and testimony and attend all such conferencesif necessary) of its choosing, discovery proceedings, hearings, trials and appeals as may be reasonably requested by at the Indemnifying Party in connection therewithexpense of the indemnified party. If Should the Indemnifying Party shall indemnifying party so elect to assume the defense of such claima Third Party Claim, the Indemnified Party indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel in any employed by the indemnifying party, it being understood that the indemnifying party shall control such casedefense. Notwithstanding the foregoing, but the indemnifying party shall be liable for the fees and expenses of such counsel employed by the indemnified party for any period during which the indemnifying party has failed to assume the defense thereof (other than during the period prior to the time the indemnified party shall be at the expense have given notice of the Indemnified PartyThird Party Claim as provided above). If the Indemnifying indemnifying party so elects to assume the defense of any Third Party has Claim, the indemnified party shall cooperate with the indemnifying party in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed the defense of any claim against the Indemnified Partya Third Party Claim, the Indemnifying Party indemnified party shall have the right to settle not admit any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to takeliability with respect to, or prohibits the Indemnified settle, compromise or discharge, such Third Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim Claim without the indemnifying party’s prior written consent of the Indemnified Party, such (which consent shall not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume indemnifying party shall have assumed the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationThird Party Claim, the Indemnified Party indemnified party shall have the right agree to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through any settlement, compromise or other legal proceeding. In no circumstance discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnifying party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third-party claim or any threatened third-party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third-party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third-party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 7.06(a) with respect to such third-party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third-party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of an indemnification for any claim against the Indemnified Partysuch third-party claim, then: (i) Except as set forth in Section 7.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and (iii) The Indemnified Party shall not be required to admit any liability with respect to such third-party claim. (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third-party claim within thirty (30) days of receipt of notice of such claim in accordance with Section 7.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third-party claim following any such acceptance, (iii) the third-party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party, or (v) the third-party claim includes damages that could exceed the limitations in Section 7.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third-party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third-party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third-party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this ARTICLE VII in respect of such third-party claim, then the Losses recoverable by Indemnified Party shall include all costs and expenses, including of the defense set forth herein. (c) No third-party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No third-party claim may be settled by the Indemnifying Party without notice to, and the written consent of, the Indemnified Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 7.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by In case an Action shall be brought, or such an Action is threatened, against any indemnitee and it shall notify promptly an indemnifying party of the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderexistence thereof, the Indemnifying Party indemnifying party shall have be entitled to participate therein and, to the right extent that it may wish to assume the defense thereof, engage counsel satisfactory to such indemnitee. If the indemnifying party so assumes the defense thereof, it may not agree to any settlement of such claimAction as the result of which, and any remedy or relief, other than monetary damages for which the Indemnified Party indemnifying party shall cooperate be responsible hereunder, shall be applied to or against the indemnitee, without the prior written consent of the indemnitee. If the indemnifying party does not assume the defense thereof, it shall, to the extent reasonably requested that it has any indemnification obligations with respect thereto, be bound by any settlement to which the indemnitee agrees, irrespective of whether the indemnifying party consents thereto; provided, however, if any settlement of any claim is effected by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect indemnitee prior to assume the defense commencement of such claimany Action relating thereto, the Indemnified Party indemnifying party shall be bound thereby only if it has consented in writing thereto or has unreasonably withheld its consent. The indemnitee shall have the right to employ its own counsel in any such case, including circumstances in which the indemnitee shall have reasonably concluded that there may be defenses available to it that are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct any such different or additional defense of such Action on behalf of the indemnitee, but the fees and expenses of such counsel shall be at the expense of such indemnitee unless the Indemnified Party. If employment of such counsel shall have been authorized in writing in advance by the Indemnifying Party has assumed indemnifying party in connection with the defense of any claim against such Action or the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party indemnifying party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not have employed counsel promptly to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control take charge of the defense of such claim through counsel Action, in any of its choicewhich events such fees and expenses shall be borne by the indemnifying party). Except as expressly provided above, the reasonable indemnifying party shall not be liable to any indemnitee for the costs of which investigating, preparing or defending against such Action subsequent to such time as the indemnifying party assumes the defense of such Action, unless such investigation, preparation or defense shall be have been conducted at the Indemnifying Party’s expense in request of the indemnifying party, its counsel or the insurer. In the event that any Actions could result in both parties being liable to the Indemnified Party’s right other under these indemnification provisions, the parties shall endeavor, acting reasonably and in good faith, to agree upon a manner of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may conducting the Indemnified Party compromise or settle a claim defense and/or settlement of such Action with a third party for which it seeks indemnification from view to minimizing the Indemnifying Party without first obtaining legal expenses and associated costs that might otherwise be incurred by the prior written consent parties under the provisions of this Section 8.04. To the extent possible, the costs of such defense and/or settlement shall be allocated by the parties on the basis of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedeventual determination of liability.

Defense of Third Party Claims. Upon receipt (a) The liability of the Company Stockholders under this Article IX with respect to Damages arising from Third Party Claims shall be governed by and contingent upon the following additional terms and conditions: If a Macrovision Indemnified Party shall receive notice of any Third Party Claim, the Macrovision Indemnified Party shall give the Indemnifying Party notice of a notice from such Third Party Claim in accordance with Section 9.4. The Company Stockholders, acting through the Indemnified Party with respect to any claim of a third party against the Indemnified PartyRepresentative, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right be entitled to assume and control the defense of such claimThird Party Claim, other than a Specified Third Party Claim, (with Macrovision entitled to participate at its option and at its own expense in such defense (without control or decision making authority in connection therewith)), at their expense and through counsel of its choice (and reasonably acceptable to the Macrovision Indemnified Party) if the Representative gives notice of its intention to do so to Macrovision within thirty (30) days of the receipt of such notice from a Macrovision Indemnified Party; provided that if there exists a material conflict of interest (other than one that is of a monetary nature) that would make it inappropriate for the same counsel to represent both the Macrovision Indemnified Party and the Company Stockholders, then the Macrovision Indemnified Party shall cooperate be entitled to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ retain its own counsel in any such casecounsel, but the fees and expenses of such counsel shall be at the expense of the Company Stockholders; provided further that the Company Stockholders shall not be obligated to pay the reasonable fees, costs and expenses of more than one separate counsel for all Macrovision Indemnified PartyParties, taken together. If the Indemnifying Third Party has assumed Claim is a Specified Third Party Claim (as defined below) or if the defense of any claim against the Indemnified Party, the Indemnifying Party Company Stockholders shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party any Third Party Claim or litigation resulting therefrom during such thirty (30) day period the Macrovision Indemnified Party may, at the expense of the Company Stockholders, defend against such claim or litigation in such manner as such Macrovision Indemnified Party may deem appropriate. The Representative may participate, at its option and disputes expense, in such defense, but shall not control or have decision making authority in connection therewith. In the Indemnified Party’s event the Representative exercises the Company Stockholders’ right to indemnificationundertake any such defense against any such Third Party Claim as provided above, the Macrovision Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.shall

Defense of Third Party Claims. Upon receipt In the event of a claim (an “Indemnity Claim”) being made by a third party against a party (the “Indemnified Party”) in respect of which, subject to section 9.2 another party (the “Indemnifier”) is or may be obligated under or arising out of this Agreement to indemnify, pay damages to or otherwise compensate the Indemnified Party, the following provisions shall apply. The Indemnified Party shall promptly give written notice to the Indemnifier of any Indemnity Claim in respect of which the Indemnified Party intends to claim for indemnification against the Indemnifier. Such notice shall specify with reasonable particularity (to the extent that the information is available) the nature of the Indemnity Claim. The Indemnifier shall, at its own expense, assume control of the negotiation, settlement and defense of such Indemnity Claim. The Indemnified Party shall co-operate with the Indemnifier in respect of such Indemnity Claim and the Indemnifier shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable expenses as a result of the Indemnifier’s assumption of such Indemnity Claim and arising from the Indemnified Party’s co-operation. The Indemnified Party will have the right to participate in the negotiation, settlement and defense of such Indemnity Claim at its own expense and will have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifier and the Indemnified Party shall be retained by the Indemnifying Indemnifier. If the Indemnifier fails to defend any Indemnity Claim within a reasonable time, the Indemnified Party will be entitled to assume control of a notice from the Indemnity Claim at the expense of the Indemnifier and the Indemnifier will be bound by the results obtained by the Indemnified Party with respect to such Indemnity Claim. The following provisions shall also apply with respect to Indemnity Claims: (a) In the event that any claim Indemnity Claim is of a third party against the Indemnified Party, for which nature such that the Indemnified Party seeks indemnification hereunderis legally bound or required by applicable law to make a payment to any person (a “Third Party”) with respect to such Indemnity Claim before the completion of settlement negotiations or related legal proceedings, including, without limitation, the Indemnifying Party shall have the right posting of any security to assume the defense stay any process of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense execution or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimjudgment, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel Indemnifier shall be at the expense obligated to make such payment or post security therefore on behalf of the Indemnified Party. If the Indemnifying Indemnifier fails to do so, the Indemnified Party has assumed may make such payment or post security therefore and the defense Indemnifier shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for any such payment or cause the security to be replaced and released. If the amount of any claim against liability of the Indemnified Party under the Indemnity Claim in respect of which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifier to the Indemnified Party, the Indemnifying Indemnified Party shall have shall, forthwith after receipt of the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatdifference from the Third Party, pay the amount of such difference to the extent that such Indemnifier. (b) Except in the circumstance contemplated by subsection 9.3(a) above, and unless the Indemnifier fails to assume control of the negotiation, settlement requires and defense of any Indemnity Claim, the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without negotiate, settle, compromise or pay any Indemnity Claim except with the prior written consent of the Indemnifier (which consent shall not be unreasonably withheld). (c) The Indemnified Party shall not permit any right of appeal in respect of any Indemnity Claim to terminate without giving the Indemnifier notice thereof and an opportunity to contest such Indemnity Claim. (d) The Indemnified Party and the Indemnifier shall co-operate fully with each other with respect to Indemnity Claims, shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available) and shall each designate a senior officer who will keep himself informed about and be prepared to discuss the Indemnity Claim with his or her counterpart and with counsel at all reasonable times. (e) Notwithstanding the above provisions of this section 9.3, the Indemnifier shall not settle any Indemnity Claim or conduct any related legal or administrative proceeding in a manner which would, in the opinion of the Indemnified Party, such consent not to be unreasonably withheldacting reasonably, conditioned or delayed. If the Indemnifying Party does not assume the defense of have a third party claim and disputes material adverse impact on the Indemnified Party’s right . (f) The provisions of this section 9.3 are intended to indemnificationset out the procedures to be followed with respect to an Indemnity Claim and, provided the Indemnified Party shall have follows such procedures in all material respects, nothing contained in this section 9.3 will derogate from the right Indemnifier’s obligations to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that indemnify the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt (i) If any lawsuit or enforcement action is filed by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against any party entitled to the Indemnified Partybenefit of indemnity hereunder with respect thereto, for which written notice thereof shall be given to the Indemnified Party seeks indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the Indemnifying Party extent that the indemnifying party has been damaged by such failure. After such notice, if the indemnifying party shall have acknowledge in writing to the right indemnified party that the indemnifying party is obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the indemnifying party shall be entitled, if it elects to do so, at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage legal counsel of its own choice, but, in any event, reasonably acceptable to the indemnified party, to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party’s cost, risk and expense, to separate counsel of its own choosing. The indemnifying party shall not, without the written consent of the indemnified party, which shall not be unreasonably withheld, conditioned or delayed, (i) settle or compromise any Claim or consent to the entry of any judgment which does not include an unconditional written release by the claimant or plaintiff of the indemnified party from all Liability in respect of such Claim, (ii) settle or compromise any Claim if the settlement imposes equitable remedies or material obligations on the indemnified party other than financial obligations for which such indemnified party will be indemnified hereunder or (iii) settle or compromise any Claim if such settlement or compromise would affect the Tax position or Tax liability of the indemnified party for any Post-Closing Tax Period. No Claim which is being defended in good faith by the indemnifying party in accordance with the terms of this Agreement shall be settled or compromised by the indemnified party without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. (ii) If the indemnifying party fails to assume the defense of such claimlawsuit or action within thirty (30) calendar days after receipt of the Claim Notice, and the Indemnified Party shall cooperate indemnified party against which such lawsuit or action has been asserted will (upon delivering notice to such effect to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall indemnifying party) have the right to employ its own counsel in any such caseundertake, but at the fees indemnifying party’s cost and expenses expense, the defense, compromise or settlement of such counsel shall be at lawsuit or action on behalf of and for the expense account and risk of the Indemnified Partyindemnifying party; provided, however, that such lawsuit or action shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that indemnified party settles or compromises such settlement requires the Indemnified Party to take, lawsuit or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Partyindemnifying party, the indemnifying party will bear no Liability hereunder for or with respect to such consent not to be lawsuit or action unless the indemnifying party unreasonably withheld, conditioned or delayed. If withheld consent. (iii) In the Indemnifying Party does not assume event either party assumes the defense of a third party claim and disputes particular lawsuit or action in the Indemnified Party’s right to indemnificationmanner contemplated above, the Indemnified Party shall have party assuming such defense will keep the right to assume control other party reasonably informed of the defense progress of any such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceedingsettlement. In no circumstance may The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 7.2 and for any final judgment (subject to any right of appeal), and the Indemnified Party compromise indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any Damages by reason of such settlement or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedjudgment.

Defense of Third Party Claims. Upon receipt In the event of the assertion or commencement by any Person of any claim or Proceeding (whether against Purchaser, the Company, the Selling Stockholders, any other Indemnitee or any other Person) with respect to which a party hereto may become obligated hereunder to indemnify, hold harmless, compensate or reimburse any Indemnitee pursuant to this Section 11, the party to be indemnified (the "INDEMNIFIED PARTY") shall reasonably promptly, but in any event within thirty (30) days following the Indemnified Party's actual knowledge thereof, notify the Person providing the indemnification hereunder (the "INDEMNIFYING PARTY") of such claim or Proceeding by providing notice to the Holder Representative. In any such event, the Indemnified Party may proceed with the defense of such claim or Proceeding and the Indemnifying Party shall bear and pay all reasonable costs and expenses (including attorneys fees and costs) in connection with the Indemnified Party's defense of any such claim or Proceeding (whether or not incurred by the Indemnified Party); PROVIDED, that all such expenses paid by the Selling Stockholders, combined with any other indemnification, will in no event exceed the respective indemnification limitations set forth in Section 11.2(a). If the Indemnified Party so proceeds with the defense of any such claim or Proceeding: (a) all expenses reasonably incurred and relating to the defense of such claim or Proceeding (whether or not incurred by the Indemnified Party) shall be borne and paid exclusively by the Indemnifying Party; (b) the Indemnifying Party of a notice from shall make available to the Indemnified Party with respect any documents and materials in the possession or control of the Indemnifying Party that may be necessary to any the defense of such claim of a third party against the Indemnified Party, for which or Proceeding; (c) the Indemnified Party seeks indemnification hereunder, shall keep the Indemnifying Party Holder Representative informed of all material developments and events relating to such claim or Proceeding; (d) the Selling Stockholders shall have the right to assume participate in the defense of such claim, and claim or Proceeding at their own expense; and (e) the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense not settle, adjust or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle compromise such claim or Proceeding without the prior written consent of the Indemnified PartySelling Stockholders or the Holder Representative, such which consent shall not to be unreasonably withheld, conditioned or delayed. If Notwithstanding the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationforegoing, the Indemnified Party Selling Shareholders shall have the right (but not the obligation), at their own expense, to assume control of the defense of such claim through counsel of its choicecontrol, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefend, settle, compromise or prosecute in any manner any audit, examination, investigation, hearing or other legal proceedingproceeding with respect to any Company Return involving only periods ending on or before the Closing Date; PROVIDED, HOWEVER, that the Selling Shareholders shall not settle, or compromise any such audit, etc. In no circumstance may without the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the Purchaser's timely and reasonable prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedconsent.

Defense of Third Party Claims. Upon receipt (a) In the event of any claim by the Indemnifying a Person not a Party of a notice from the Indemnified Party to this Agreement with respect to any claim of a third party against the Indemnified Party, for matter to which the Indemnified Party seeks indemnification hereunderSections 8.1 or 8.2 hereof relates, the Indemnifying Party indemnified party, after not less than thirty (30) days’ written notice to the indemnifying party containing the terms of the proposed settlement, may make settlement of such claim, and such settlement shall be binding on the Parties hereto for the purposes of this Section 8.3; provided, however, that, if within such thirty (30) day period, the indemnifying party shall have requested the indemnified party to contest any such claim at the expense of the indemnifying party, the indemnified party shall promptly comply, and the indemnifying party shall have the right to assume direct the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense claim or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithany litigation based thereon at its own expense through counsel of its own choosing. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party The indemnified party also shall have the right to employ its own counsel participate in the settlement of any such claim or in any such caselitigation so long as its participation is at its own expense and with the understanding that the indemnifying party may settle in its own discretion at its sole expense so long as any such settlement provides for a complete release and discharge of the indemnified party and does not impose any liabilities or obligations on the indemnified party. Any payment or settlement made by the indemnifying party in such contest, but together with the fees and expenses of such counsel total expense thereof, shall be at binding on the expense indemnified party and the indemnifying party for the purposes of this Section 8.3. (b) In the Indemnified Party. If the Indemnifying Party has assumed the defense of event that any litigation, proceeding, controversy, claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and or other matter is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of initiated by a third party claim against Purchaser or a Seller, and disputes Purchaser or Sellers, as the Indemnified Party’s right case may be, are obligated or potentially obligated to indemnificationindemnify, defend and hold the other harmless under this Article VIII, the Indemnified Party shall have indemnified or potentially indemnified party will reasonably cooperate with the right indemnifying or potentially indemnifying party with respect to assume control of the investigation and defense of such litigation, proceeding, controversy or claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedmatter.

Defense of Third Party Claims. Upon receipt In the event of a claim (an “Indemnity Claim”) being made by a third party against a party to this Agreement (the “Indemnified Party”) in respect of which, subject to Section 12.2, another party to this Agreement (the “Indemnifier”) is or may be obligated under or arising out of this Agreement to indemnify, pay damages to or otherwise compensate the Indemnified Party, the following provisions shall apply. The Indemnified Party shall promptly give written notice to the Indemnifier of any Indemnity Claim in respect of which the Indemnified Party intends to claim for indemnification against the Indemnifier. Such notice shall specify with reasonable particularity (to the extent that the information is available) the nature of the Indemnity Claim. The Indemnifier may, at its own expense, assume control of the negotiation, settlement and defense of such Indemnity Claim. The Indemnified Party shall co-operate with the Indemnifier in respect of such Indemnity Claim and the Indemnifier shall reimburse the Indemnified Party for all the Indemnified Party's reasonable expenses as a result of the Indemnifier's assumption of such Indemnity Claim and arising from the Indemnified Party's co-operation. The Indemnified Party will have the right to participate in the negotiation, settlement and defense of such Indemnity Claim at its own expense and will have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifier and the Indemnified Party shall be retained by the Indemnifying Indemnifier. If the Indemnifier fails to defend any Indemnity Claim within a reasonable time, the Indemnified Party will be entitled to assume control of a notice from the Indemnity Claim at the expense of the Indemnifier and the Indemnifier will be bound by the results obtained by the Indemnified Party with respect to such Indemnity Claim. The following provisions shall also apply with respect to Indemnity Claims: (a) In the event that any claim Indemnity Claim is of a third party against the Indemnified Party, for which nature such that the Indemnified Party seeks indemnification hereunderis legally bound or required by applicable law to make a payment to any person (a “Third Party”) with respect to such Indemnity Claim before the completion of settlement negotiations or related legal proceedings, including, without limitation, the Indemnifying Party shall have the right posting of any security to assume the defense stay any process of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense execution or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimjudgment, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel Indemnifier shall be at the expense obligated to make such payment or post security therefor on behalf of the Indemnified Party. If the Indemnifying Indemnifier fails to do so, the Indemnified Party has assumed may make such payment or post security therefor and the defense Indemnifier shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for any such payment or cause the security to be replaced and released. If the amount of any claim against liability of the Indemnified Party under the Indemnity Claim in respect of which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifier to the Indemnified Party, the Indemnifying Indemnified Party shall have shall, forthwith after receipt of the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatdifference from the Third Party, pay the amount of such difference to the extent that such Indemnifier. (b) Except in the circumstance contemplated by Section 12.4(a) above, and unless the Indemnifier fails to assume control of the negotiation, settlement requires and defense of any Indemnity Claim, the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without negotiate, settle, compromise or pay any Indemnity Claim except with the prior written consent of the Indemnifier (which consent shall not be unreasonably withheld). (c) The Indemnified Party shall not permit any right of appeal in respect of any Indemnity Claim to terminate without giving the Indemnifier notice thereof and an opportunity to contest such Indemnity Claim. (d) The Indemnified Party and the Indemnifier shall co-operate fully with each other with respect to Indemnity Claims, shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available) and shall each designate a senior officer who will keep himself or herself informed about and be prepared to discuss the Indemnity Claim with his or her counterpart and with counsel at all reasonable times. (e) Notwithstanding the above provisions of this Section 12.4, the Indemnifier shall not settle any Indemnity Claim or conduct any related legal or administrative proceeding in a manner which would, in the opinion of the Indemnified Party, such consent not to be unreasonably withheldacting reasonably, conditioned or delayed. If the Indemnifying Party does not assume the defense of have a third party claim and disputes Material adverse impact on the Indemnified Party’s right . (f) The provisions of this Section 12.4 are intended to indemnificationset out the procedures to be followed with respect to an Indemnity Claim and, provided the Indemnified Party shall have follows such procedures in all Material respects, nothing contained in this Section 12.4 will derogate from the right Indemnifier's obligations to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that indemnify the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt ​ (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third-party claim or any threatened third-party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third-party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third-party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 8.06(a) with respect to such third-party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third-party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of an indemnification for any claim against the Indemnified Partysuch third-party claim, then: ​ ​ ​ (i) Except as set forth in Section 8.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; ​ (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and ​ (iii) The Indemnified Party shall not be required to admit any liability with respect to such third-party claim. ​ (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third-party claim within thirty (30) days of receipt of notice of such claim in accordance with Section 8.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third-party claim following any such acceptance, (iii) the third-party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party, or (v) the third-party claim includes damages that could exceed the limitations in Section 8.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third-party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third-party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third-party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this ARTICLE VIII in respect of such third-party claim, then the Losses recoverable by Indemnified Party shall include all costs and expenses, including of the defense set forth herein. ​ ​ (c) No third-party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No third-party claim may be settled by the Indemnifying Party without notice to, and the written consent of, the Indemnified Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 8.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.. ​

Defense of Third Party Claims. Upon receipt If a claim for Damages (a “Claim”) is to be made by a party entitled to indemnification hereunder against the Indemnifying Party indemnifying party, the party claiming such indemnification shall, subject to this Article VII, give written notice (a “Claim Notice”) to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of a any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Article VII, provided that the failure of any indemnified party to give prompt notice from hereunder shall not affect rights to indemnification hereunder except to the Indemnified Party with respect to extent that the indemnifying party is damaged by such failure or the Damages that are the subject of the Claim are exacerbated. If any claim of lawsuit or enforcement action is filed by a third party against any party entitled to the Indemnified Party, for which the Indemnified Party seeks indemnification benefit of indemnity hereunder, the Indemnifying Party written notice thereof shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate be given to the extent reasonably requested by indemnifying party as promptly as practicable, provided that the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense failure of any claim against the Indemnified Party, the Indemnifying Party indemnified party to give prompt notice hereunder shall have the right not affect rights to settle any claim for which indemnification has been sought and is available hereunder; provided that, hereunder except to the extent that the indemnifying party is damaged by such settlement requires failure or the Indemnified Party Damages that are the subject of the Claim are exacerbated. After such notice, if the indemnifying party shall acknowledge in writing to take, the indemnified party that the indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Partyaction, then the Indemnifying Party indemnifying party shall not be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party’s cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim without claim, which compromise or settlement shall be made only with the prior written consent of the Indemnified Partyindemnified party, such consent not to be unreasonably withheld; provided, conditioned however, if the resolution of any such Claim is reasonably expected to have an adverse effect on the indemnified party’s business operations, then, notwithstanding the foregoing, the indemnified party shall be entitled to control such resolution, including, without limitation, to take control of the defense and investigation of such lawsuit or delayedaction, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party’s cost, risk and expense, and to compromise or settle such Claim. If the Indemnifying Party does not assume the defense of a third indemnifying party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right fails to assume control of the defense of such claim through counsel within thirty (30) calendar days after receipt of its choicethe Claim Notice, the reasonable costs of indemnified party against which shall be such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the Indemnifying Partyindemnifying party’s expense in cost and expense, the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceeding. In no circumstance may settlement of such claim on behalf of and for the Indemnified Party compromise account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised or settle a claim with a third party for which it seeks indemnification from settled without the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, such which consent shall not to be unreasonably withheld. In the event the indemnified party assumes the defense of the claim, conditioned the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or delayedsettlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Article VII and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment. The right to indemnification, payment of Damages or other remedy based on any representations, warranties, covenants and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable or being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedies based on such representations, warranties, covenants and obligations.

Defense of Third Party Claims. Upon receipt (a) The indemnified party seeking indemnification under this Agreement shall promptly notify the indemnifying party of the assertion of any claim, or the commencement of any Action or Proceeding by any Third Party, in respect of which indemnity may be sought hereunder and shall give the indemnifying party such information with respect thereto as the indemnifying party may reasonably request, but failure to give such notice shall not relieve the indemnifying party of any liability hereunder (except to the extent that the indemnifying party has suffered actual prejudice by such failure). The indemnifying party shall have the right, but not the obligation, exercisable by written notice to (which shall contain the unconditional undertaking by the Indemnifying indemnifying party to bear all Liabilities, obligations and Losses with respect to such Third Party Claim) the indemnified party within thirty (30) days of a receipt of notice from the Indemnified indemnified party of the commencement of or assertion of any claim, Action or Proceeding by a Third Party in respect of which indemnity may be sought hereunder (a "Third-Party Claim" to assume the defense at its sole expense such Third-Party Claim that (i) involves (and continues to involve) solely money damages or (ii) involves (and continues to involve) claims for both money damages and equitable relief against the indemnified party that cannot be severed, where the claims for money damages are the primary claims asserted by the Third Party and the claims for equitable relief are incidental to the claims for money damages, and where the indemnified party reasonably determines (and continues to reasonably determine) that defense of the claim by the indemnifying party will not have a material adverse effect on the indemnified party. If the indemnifying party does not assume the defense of any such Third-Party Claim, the indemnifying party shall, in addition to any other amounts due under this Article X, indemnify the indemnified party for all actual expenses of the defense of such Third-Party Claim (including court costs, reasonable fees of attorneys, accountants and other experts and other reasonable expenses of litigation), including with respect to any claim of a third Third Party Claim which, if the facts alleged therein were proven to be true, would otherwise constitute an indemnifiable claim. (b) The indemnifying party against or the Indemnified Partyindemnified party, for which as the Indemnified Party seeks indemnification hereundercase may be, the Indemnifying Party shall have the right to assume participate in (but not control), at its own expense, the defense of any Third-Party Claim that the other is defending pursuant to this Agreement. (c) The indemnifying party, if it has assumed the defense of any such claimThird-Party Claim pursuant to this Agreement, shall not, without the indemnified party's prior written consent (not to be unreasonably withheld), enter into any compromise or settlement, it being agreed that no such compromise or settlement may be entered into that (i) results in any liability to the indemnified party, (ii) commits the indemnified party to take, or to forbear to take, any action or (iii) does not provide for a complete release by such Third Party of the indemnified party. The indemnifying party shall not, without the indemnified party's prior written consent, enter into any compromise or settlement where the amount of such compromise or settlement would cause the applicable cap on the indemnifying party's liability, as provided herein, to be exceeded. The indemnified party shall have the sole and exclusive right to settle any Third- Party Claim, with the Indemnified Party consent of the indemnifying party, which shall cooperate not be unreasonably withheld or delayed, on such terms and conditions as it deems reasonably appropriate, to the extent reasonably requested by such Third-Party Claim involves equitable or other nonmonetary relief against the Indemnifying Party in defense or prosecution thereof indemnified party, and shall furnish such recordshave the right to settle, information and testimony and attend all such conferencesat the indemnifying party's sole expense, discovery proceedings, hearings, trials and appeals as may be reasonably requested by any Third-Party Claim involving money damages for which the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume indemnifying party has not assumed the defense pursuant to this Section 10.6 with the written consent of such claimthe indemnifying party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Indemnified Party indemnified party shall have the right to employ separate counsel at the indemnifying party's expense and to control its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right such asserted liability if (i) there are or may be legal defenses available to settle any claim for which indemnification has been sought and is such indemnified party that are different from or additional to those available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, indemnifying party or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, (ii) in the reasonable costs opinion of which shall be at counsel to such indemnified party, conflict or potential conflict exists between the Indemnifying Party’s expense in the event indemnifying party and such indemnified party that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, would make such consent not to be unreasonably withheld, conditioned or delayedseparate representation advisable.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed against any Indemnified Party by a third party (a “Third Party Claim”) for which indemnification may be available to the Indemnified Party in this Agreement, written notice thereof shall be given to the Indemnifying Party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of a notice from the citation or summons); provided, however, the failure of any Indemnified Party with respect to give timely notice hereunder shall not affect its rights to indemnification hereunder, except to the extent that any claim Indemnifying Party is prejudiced by such failure. After such notice, the Indemnifying Party may assume the defense of a third party against such Third Party Claim by written notice to the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder. Upon delivery of such notice, the Indemnifying Party shall have the right to assume (i) take control of the defense and investigation of the Third Party Claim, and (ii) employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such claim, Third Party Claim include both any Indemnifying Party and any Indemnified Party and the Indemnified Party shall cooperate has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the extent reasonably requested by the Indemnifying Party Party, in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, which event the Indemnified Party shall have the right to employ its own counsel in any such casebe entitled, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event cost, risk and expense, to separate counsel of its own choosing, provided that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party to compromise or settle a claim such claim, which compromise or settlement shall be made only with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, conditioned trial and defense of the Third Party Claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of the Third Party Claim and any appeal arising therefrom. If the Indemnifying Party fails to assume the defense of the Third Party Claim within fifteen (15) calendar days after receipt of the notice of the Third Party Claim, the Indemnified Party against which such Third Party Claim has been asserted will upon delivering notice to such effect to the Indemnifying Party have the right to undertake, at the Indemnified Party’s cost, risk and expense, the defense, compromise or delayedsettlement of such Third Party Claim on behalf of and for the account and risk of Indemnifying Parties; provided, however, that such Third Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the Third Party Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement of any action effected pursuant to and in accordance with this subsection (e) for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any Adverse Consequences by reason of such settlement or judgment, subject to any limitations set forth herein.

Defense of Third Party Claims. Upon receipt by If the Indemnifying Party assumes the defense of a notice from the Indemnified Third Party with respect Claim pursuant to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderSection 9.3(a), the Indemnifying Party will appoint counsel reasonably satisfactory to the Indemnitee for the defense of such Third Party Claim, will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee shall cooperate with the Indemnifying Party and its counsel, including permitting reasonable access to books, records, and personnel, in connection with the defense of any Third Party Claim (provided, that any out-of-pocket costs incurred by the Indemnitee in providing such cooperation shall be paid by the Indemnifying Party). The Indemnitee will have the right to assume participate in such defense, including appointing separate counsel, but the costs of such participation shall be borne solely by the Indemnitee. The Indemnifying Party will have full authority, in consultation with the Indemnitee, to make all decisions and determine all actions to be taken with respect to the defense and settlement of such claimthe Third Party Claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have including the right to employ its own counsel in any such casepay, but the fees and expenses compromise, settle, or otherwise dispose of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Third Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be Claim at the Indemnifying Party’s expense in expense; provided, that any such settlement will be subject to the event prior consent of the Indemnitee, which shall not be unreasonably withheld or delayed. If a firm offer is made to settle a Third Party Claim, which the Indemnifying Party desires to accept and which acceptance requires the consent of the Indemnitee pursuant to the immediately preceding sentence, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnified Party’s right Indemnitee fails to consent to such firm offer within 10 days after its receipt of indemnification such notice, and such firm offer involves only the payment of money, the maximum liability of the Indemnifying Party with respect to such Third Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the date of such notice for which the Indemnifying Party is ultimately established through settlement, compromise or other legal proceedingotherwise liable. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from event will the Indemnifying Party without first obtaining have authority to agree to any relief binding on the prior written consent Indemnitee other than the payment of money damages by the Indemnifying Party, such consent not Party unless agreed to be unreasonably withheld, conditioned or delayedby the Indemnitee.

Defense of Third Party Claims. Upon receipt (a) If the Indemnified Party's claim for indemnification is based, under this Agreement, on a claim, demand, investigation, action or proceeding, judicial or otherwise, brought by a third party, and the Indemnifying Party does not object under SECTION 7.4(b) of this Agreement, the Indemnifying Party shall, within the 30 day period (or any extended period) referred to in SECTION 7.4(a) of this Agreement, assume the defense of such third-party claim at its sole cost and expense and shall thereafter be designated as the "CASE HANDLER." Any such defense shall be conducted by attorneys employed by the Indemnifying Party. The Indemnified Party may retain attorneys of a notice from its own choosing to participate in such defense at the Indemnified Party's sole cost and expense. (b) If the Indemnifying Party assumes the defense of any such third-party claim, the Indemnifying Party may settle or compromise the claim without the prior consent of the Indemnified Party with respect so long as all present and future claims relating to any the compromised claim of a third party against the Indemnified Party, Party are irrevocably and unconditionally released in full. (c) The Indemnifying Party shall pay to the Indemnified Party in immediately available funds the amount for which the Indemnified Party seeks indemnification hereunder, is entitled to be indemnified within 30 days after the Indemnifying Party shall have the right to assume the defense settlement or compromise of such claim, and third-party claim or the Indemnified Party shall cooperate judgment of a court of competent jurisdiction (or within such longer period as agreed to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayedparties). If the Indemnifying Party does not assume the defense of any such third-party claim, the Indemnifying Party shall be bound by the result obtained with respect thereto by the Indemnified Party, except that the Indemnifying Party has the right to contest that it is obligated to the Indemnified Party under the terms of this Agreement, provided the Indemnifying Party shall have raised its objection in a timely manner under SECTION 7.4 of this Agreement. (d) In the event a claim, demand, action or proceeding is brought by a third party claim in which the liability as between the ILP and disputes the Indemnified Party’s right Transferors and their Affiliates is alleged to indemnificationbe joint or in which the entitlement to indemnification hereunder is not readily determinable, the Indemnified Party parties shall have cooperate in a joint defense. Such joint defense shall be under the right to assume control general management and supervision of the party which is expected to bear the greater share of the liability, and which will be considered the Case Handler, unless otherwise agreed; PROVIDED, HOWEVER, that neither party shall settle or compromise any such joint defense of such claim through counsel of its choice, matter without the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyother. The costs of such joint defense, any settlement and any award or judgment (unless the award or judgment specifies otherwise) shall be borne as the parties may agree; or in the absence of such agreement, such consent not costs shall be borne by the party incurring such costs, subject to be unreasonably withheld, conditioned or delayedultimate resolution between the ILP and the Transferors pursuant to SECTION 8 of this Agreement.

Defense of Third Party Claims. Upon Should any claim be made, or suit or proceeding (including, without limitation, a binding arbitration or an audit by any taxing authority) be instituted against Indemnitee by a Third Party which, if prosecuted successfully, would be a matter for which Indemnitee is entitled to indemnification under this Agreement (a “Third Party Claim”), the obligations and liabilities of the parties hereunder with respect to such Third Party Claim shall be subject to the following terms and conditions: (a) The Indemnitee shall give the Indemnitor written notice of any such claim promptly after receipt by the Indemnifying Party Indemnitee of a notice from thereof, and the Indemnified Party Indemnitor will undertake the defense thereof by representatives of its own choosing reasonably acceptable to the Indemnitee. The assumption of the defense of any such claim by the Indemnitor shall be an acknowledgement by the Indemnitor of its obligation to indemnify the Indemnitee with respect to any such claim of a third party against the Indemnified Partyhereunder. If, for which the Indemnified Party seeks indemnification hereunderhowever, the Indemnifying Party Indemnitor fails or refuses to undertake the defense of such claim within fifteen (15) days after written notice of such claim has been given to the Indemnitor by the Indemnitee, the Indemnitee shall have the right to assume undertake the defense, compromise, and, settlement of such claim with counsel of its own choosing. The Indemnitor shall have the right to participate in any defense assumed by the Indemnitee, at its sole cost and expense. In the circumstances described in the preceding sentence, the Indemnitee shall, promptly upon its assumption of the defense of such claim, make an Indemnification Claim as specified in Section 7.4, which shall be deemed an Indemnification Claim that is not a Third Party Claim for the purposes of the procedures set forth herein. (b) The Indemnitee and the Indemnified Party Indemnitor shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim and furnishing, without expense to the extent reasonably requested by Indemnitor, management employees of the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals Indemnitee as may be reasonably requested by necessary for the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense preparation of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, or for testimony as witnesses in any proceeding relating to such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedclaim.

Defense of Third Party Claims. Upon receipt by the An Indemnified Party shall give prompt written notice to any Indemnifying Party of a notice from the Indemnified Party with respect to commencement or assertion of any claim of Claim by a third party against the Indemnified Party(collectively, for a "THIRD PARTY CLAIM") in respect of which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate seek indemnification hereunder. Any failure so to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the notify an Indemnifying Party shall not settle relieve such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume from any liability that it, he, or she may have to such Indemnified Party under this Article 7 except to the defense of a third party claim extent the failure to give such notice materially and disputes the Indemnified adversely prejudices such Indemnifying Party’s right to indemnification, the Indemnified . The Indemnifying Party shall have the right to assume control of the defense of, settle, or otherwise dispose of such claim through counsel of its choiceThird-Party Claim on such terms as it deems appropriate; provided, the reasonable costs of which however, that: (a) The Indemnified Party shall be entitled, at its own expense, to participate in the defense of such Third-Party Claim (provided, however, that the Indemnifying Parties shall pay the legal fees of the Indemnified Party if (i) the employment of separate counsel shall have been authorized in writing by all Indemnifying Parties in connection with the defense of such Third-Party Claim, (ii) the Indemnifying Parties shall not have employed counsel reasonably satisfactory to the Indemnified Party to defend such Third-Party Claim, or (iii) the Indemnified Party's counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party’s , that there is a material conflict of interest that could reasonably be expected to violate applicable standards of professional conduct to have common counsel); (b) The Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into or making any settlement, compromise, admission, or acknowledgment of the validity of such Third-Party Claim or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission, or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party or if, in the opinion of the Indemnified Party, such settlement, compromise, admission, or acknowledgment could have a material adverse effect on the Indemnified Party; (c) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such Third-Party Claim; and (d) The Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the event defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement, compromise, admission, or acknowledgment of any Third-Party Claim (i) as to which the Indemnifying Party fails to assume the defense within a reasonable length of time; or (ii) to the extent the Third-Party Claim seeks an order, injunction, or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, assets, or financial condition of the Indemnified Party; provided, however, that the Indemnified Party’s right of indemnification is ultimately established through Party shall make no settlement, compromise compromise, admission, or other legal proceeding. In no circumstance may acknowledgment that would give rise to liability on the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the part of any Indemnifying Party without first obtaining the prior written consent of the such Indemnifying Party. The parties hereto shall extend reasonable cooperation in connection with the defense of any Third-Party Claim pursuant to this Article 7 and, in connection therewith, shall furnish such consent not to records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be unreasonably withheld, conditioned or delayedreasonably requested.

Defense of Third Party Claims. Upon receipt In the event of the assertion or commencement by any Person of any claim or Proceeding against either party hereto (the "Indemnitee") with respect to which the other party (the "Indemnifying Party") may become obligated to indemnify, hold harmless, compensate or reimburse the Indemnitee pursuant to this Section 11, (A) the Indemnitee shall promptly deliver to the Indemnifying Party a written notice describing such claim or Proceeding in reasonable detail, provided, however, that the failure to provide such notice shall not affect the obligation of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party unless it is materially prejudiced thereby and such notice is unreasonably delayed and (B) the Indemnitee shall have the right right, at its election, to designate the Indemnifying Party to assume the defense of such claim, and claim or Proceeding at the Indemnified Party shall cooperate sole expense of the Indemnifying Party. If the Indemnitee so elects to the extent reasonably requested by designate the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of any such claim, claim or Proceeding: (A) the Indemnified Indemnifying Party shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the Indemnitee; (B) the Indemnitee shall make available to the Indemnifying Party any non-privileged documents and materials in the possession of the Indemnitee that may be necessary to the defense of such claim or Proceeding; (C) the Indemnifying Party shall keep the Indemnitee informed of all material developments and events relating to such claim or Proceeding; (D) the Indemnitee shall have the right to employ its own counsel participate in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any such claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then Proceeding; (E) the Indemnifying Party shall not settle settle, adjust or compromise such claim or Proceeding without the prior written consent of the Indemnified Party, such consent Indemnitee which may not to be unreasonably withheld, conditioned or delayed. If ; and (F) the Indemnitee may at any time (notwithstanding the prior designation of the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel or Proceeding) assume the defense of its choicesuch claim or Proceeding. If the Indemnitee does not elect to designate the Indemnifying Party to assume the defense of any such claim or Proceeding (or if, after initially designating the Indemnifying Party to assume such defense, the Indemnitee elects to assume such defense), the Indemnitee may proceed with the defense of such claim or Proceeding on its own. If the Indemnitee so proceeds with the defense of any such claim or Proceeding on its own: (I) the Indemnitee shall proceed to defend such claim or Proceeding in a diligent manner; (II) all reasonable costs expenses relating to the defense of which such claim or Proceeding shall be at borne and paid exclusively by the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from ; (III) the Indemnifying Party shall make available to the Indemnitee any documents and materials in the possession or control of the Indemnifying Party that may be necessary to the defense of such claim or Proceeding; (IV) the Indemnitee shall keep the Indemnifying Party informed of all material developments and events relating to such claim or Proceeding; and (V) the Indemnitee shall not have the right to settle, adjust or compromise such claim or Proceeding without first obtaining the prior written consent of the Indemnifying Party; provided, however, that the Indemnifying Party shall not unreasonably withhold such consent not to be unreasonably withheld, conditioned or delayedconsent.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed against an Indemnified Party by any third party (each, a “Third Party Claim”) for which indemnification under this Article X may be sought, Notice thereof shall be given to the Indemnifying Party as promptly as practicable. The failure of a notice from the any Indemnified Party with respect to any claim give timely Notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party was actually prejudiced by such failure. The Indemnifying Party shall be entitled, if it so elects at its own cost, risk and expense, (a) to take control of a third party against the defense and investigation of such Third Party Claim, (b) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the Indemnified Party) to handle and defend the same, for which unless the named parties to such action or proceeding include both one or more Indemnifying Parties and an Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claimParty, and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to an applicable Indemnifying Party, in which event such Indemnified Party shall cooperate be entitled, at the Indemnifying Parties’ reasonable cost, risk and expense, to separate counsel (provided that such counsel is reasonably acceptable to the extent reasonably requested by the Indemnifying Party in defense Party), and (c) to compromise or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of settle such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel which compromise or settlement shall be at made only (A) with the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned withheld and (B) if such compromise or delayedsettlement contains an unconditional release of the Indemnified Party in respect of such claim. If the Indemnifying Party does not elects to assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationThird Party Claim, the Indemnified Party shall have cooperate in all reasonable respects with the right Indemnifying Party and its attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers. If the Indemnifying Party fails to assume control of the defense of such claim through counsel within fifteen (15) calendar days after receipt of its choicethe Notice, the reasonable costs of Indemnified Party against which shall be such claim has been asserted will have the right to undertake, at the Indemnifying Party’s expense in Parties’ reasonable cost, risk and expense, the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceeding. In no circumstance may settlement of such Third Party Claim on behalf of and for the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from account and risk of the Indemnifying Party Parties; provided, however, that such claim shall not be compromised or settled without first obtaining the prior written consent of the Indemnifying Party, such which consent shall not to be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, conditioned the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or delayedsettlement.

Defense of Third Party Claims. Upon receipt If a claim for indemnification pursuant to Section 10.2 or 10.3 shall arise from any Action made or brought by a third party that would reasonably be expected to result in indemnifiable Losses (a “Third Party Claim”), the Indemnifying Party may assume the defense of the Third Party Claim. If the Indemnifying Party assumes the defense of the Third Party Claim, the defense shall be conducted by counsel chosen by the Indemnifying Party of a notice from Party, who shall be reasonably acceptable to the Indemnified Party, provided that the Indemnified Party shall retain the right to employ its own counsel and participate in the defense of the Third Party Claim at its own expense (which shall not be recoverable from the Indemnifying Party under this Article X unless (i) the Indemnified Party is advised by counsel reasonably satisfactory to the Indemnifying Party that use of counsel of the Indemnifying Party’s choice would be expected to give rise to a conflict of interest, (ii) the Indemnifying Party shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the assertion of any such claim or institution of any such Action, or (iii) the Indemnifying Party shall authorize the Indemnified Party in writing to employ separate counsel at the expense of the Indemnifying Party, in each of which cases the reasonable expenses of counsel to the Indemnified Party shall be reimbursed by the Indemnifying Party). In no event shall the Indemnifying Party be obligated to pay the fees and expenses of more than one counsel (other than local counsel) for all Indemnified Parties with respect to any claim indemnified under this Article X; provided, that an Indemnified Party shall be entitled to employ separate counsel at the expense of the Indemnifying Party if the Indemnified Party is advised by counsel reasonably satisfactory to the Indemnifying Party that use of such other counsel would give rise to a third party against conflict of interest, in which case the reasonable expenses of counsel to such Indemnified Party shall be reimbursed by the Indemnifying Party. Notwithstanding the foregoing provisions of this Section 10.5(b), (A) no Indemnifying Party shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 10.2 or 10.3 without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, unless it has assumed the defense of such Third Party Claim and as part of the settlement the Indemnified Party is released from all liability with respect to the Third Party Claim and the settlement does not impose any equitable remedy on the Indemnified Party or require the Indemnified Party to admit any fault, culpability or failure to act by or on behalf of the Indemnified Party, and (B) no Indemnified Party shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 10.2 or 10.3 without the Indemnified Indemnifying Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, unless the Third Party seeks indemnification hereunderClaim is for money damages only and such settlement does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of the Indemnifying Party shall have the right to assume the defense and as part of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by settlement the Indemnifying Party in defense or prosecution thereof is released from all liability (for indemnification pursuant to this Article X and shall furnish otherwise) with respect to such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Third Party in connection therewithClaim. If the Indemnifying Party shall elect does not notify the Indemnified Party within twenty (20) Business Days after receipt of the Indemnified Party’s notice of a Third Party Claim of indemnity hereunder that it elects to assume the control of the defense of such claimany Third Party Claim, the Indemnified Party shall have the right to employ its own counsel in contest the Third Party Claim but shall not thereby waive any such case, but right to indemnity therefor pursuant to this Agreement and the fees and expenses costs of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, Actions by the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at paid by the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by In the Indemnifying case of any Third-Party of Claim that may give rise to a notice from claim for indemnification pursuant to this Article 12, the Indemnified Party shall defend, and shall have the right to compromise or settle and select counsel for, any Third Party Claim and the costs and expenses incurred by Indemnified Party in connection with respect to any claim of a third party against such defense (including, but not limited to, reasonable attorney's fees, other professionals' and experts' fees and court or arbitration costs) will be included in the Indemnified Party, Damages for which the Indemnified Party seeks and the other Indemnitees may seek indemnity pursuant to a demand for indemnification made hereunder, the . The Indemnifying Party shall have the right to assume the defense receive copies of such claimall pleadings, notices and the Indemnified communications with respect to any Third Party shall cooperate Claim to the extent reasonably requested that receipt of such documents by the such Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect does not affect any privilege relating to assume the defense of such claim, the Indemnified Party shall have or the right to employ other Indemnitees, and may at its own counsel sole expense participate in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against or demand with its own counsel or in any settlement negotiations with respect to the Third Party Claim. The Indemnified Party shall not enter into any settlement of a Third Party Claim without the prior written consent of Indemnifying Party, the which consent shall not be unreasonably withheld, PROVIDED, that if Indemnifying Party shall have the right consented in writing to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Partysettlement, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not have no power or authority to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right object to indemnification, any demand for indemnification by the Indemnified Party shall have for the right to assume control of the defense amount of such claim through counsel of its choice, the reasonable costs of which shall be at the settlement and Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may Party will remain responsible to indemnify the Indemnified Party compromise for all Damages they may incur arising out of, resulting from, or settle a claim with a third party for which it seeks indemnification from caused by, the Indemnifying Third Party without first obtaining Claim to the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedfullest extent provided in this Article 12.

Defense of Third Party Claims. Upon receipt by If a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity or unenforceability of any of the Indemnifying Licensed Patents (an “Invalidity Action”), the Party first having notice of a notice from the Indemnified Party with respect to any claim of a third party against Invalidity Action shall promptly notify the Indemnified other Party, for which and the Indemnified Party seeks indemnification hereunderParties shall promptly confer to consider the Invalidity Action and the appropriate course of action. JASPER shall have the first right, but not the Indemnifying Party obligation, to defend or control the defense of any Invalidity Action. For clarity, if AMGEN is named in an Invalidity Action but not JASPER, then JASPER shall have the right to assume join and control the defense of such claim, Invalidity Action at JASPER’s own expense and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithusing counsel of JASPER’s choice. If JASPER elects not to defend or control the Indemnifying Party defense of an Invalidity Action, then AMGEN shall elect have the right, but not the obligation, to assume defend or control the defense of such claimInvalidity Action, the Indemnified at AMGEN’s own expense and using counsel of AMGEN’s choice. Neither Party shall have the right to employ its own counsel in enter into any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense settlement of any claim against the Indemnified Party, the Indemnifying described in this Section 4.4 (Defense of Third Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, Claims) that admits to the extent that invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified other Party, then the Indemnifying Party shall not settle such claim without the ’s prior written consent of the Indemnified Partyconsent, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying The Party does not assume defending or controlling the defense of a third party claim an Invalidity Action (the “Defending Party”) shall keep the other Party reasonably informed, in person or by telephone or e-mail, regarding the status of such Invalidity Action. In any event, the other Party shall reasonably assist the Defending Party and disputes cooperate in any such litigation at the Indemnified Defending Party’s right to indemnification, request and the Indemnified Defending Party shall have reimburse the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying other Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedreasonable out-of-pocket costs associated therewith.

Defense of Third Party Claims. Upon receipt In the event of the assertion or commencement by any Person of any claim or Proceeding with respect to which any Indemnitee may be entitled to be indemnified pursuant to this ARTICLE VII (each, a “Third Party Claim”), the following shall apply: (a) The applicable Indemnitee shall promptly notify (such notice, the “Third Party Claim Notice”) the applicable Seller (in the case of indemnification sought by a Buyer Indemnitee) or Buyer (in the case of indemnification sought by an Seller Indemnitee) after such Indemnitee receives written notice of such Third Party Claim (it being understood that any failure by any Indemnitee to so notify shall have no effect on such Indemnitee’s ability to recover Losses pursuant to this ARTICLE VII, except to the extent that the applicable Indemnifying Party is prejudiced thereby; provided that such Third Party Claim Notice has been delivered within the applicable Survival Period for such claim). Such Third Party Claim Notice shall describe in reasonable detail the facts giving rise or that could reasonably be expected to give rise to the claim for indemnification hereunder that is the subject of the Third Party Claim Notice, the amount and the method of computation of the amount of such claim, a reference to the provision of this Agreement upon which such claim is based and all material documentation relevant to the claim described in the Third Party Claim Notice. The Indemnifying Party, at its sole expense, shall have the right, at its election, to proceed with the defense of such Third Party Claim on its own with counsel reasonably acceptable to the applicable Indemnitee; provided, that the Indemnitee may participate in such defense through counsel chosen by such Indemnitee and paid at its own expense. If the Indemnifying Party so proceeds with the defense of a notice from any such Third Party Claim, then the Indemnified applicable Indemnitee shall make available to the Indemnifying Party with respect any documents and materials that the Indemnifying Party determines in good faith may be necessary to any claim the defense of a third party against such Third Party Claim. Notwithstanding anything to the Indemnified Party, for which the Indemnified Party seeks indemnification hereundercontrary contained herein, the Indemnifying Party shall have not be entitled to control the right defense of a Third Party Claim (and the Indemnitee shall be entitled to maintain or assume control of the defense of such claimThird Party Claim and all costs and expenses (including reasonable attorneys’, accountants’, investigators’ and experts’ fees and expenses) of defending such Third Party Claim shall constitute indemnifiable Losses) if (i) the Indemnified Third Party shall cooperate Claim involves a demand or request for relief other than monetary damages, (ii) the Third Party Claim relates to or involves any criminal or quasi criminal Proceeding, (iii) the Indemnitee reasonably believes an adverse determination with respect to the extent reasonably requested by Third Party Claim would be detrimental to or injure the Indemnitee’s reputation or future business prospects, (iv) the Third Party Claim seeks an injunction or other equitable relief against the Indemnitee, (v) the Third Party Claim involves Taxes, or (vi) the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the at any time, fails to vigorously prosecute or defend such Third Party Claim. (b) The Indemnifying Party shall have the full right to settle settle, adjust or compromise such Third Party Claim; provided, however, that (i) except for the settlement of a Third Party Claim that involves (A) no obligation of any claim for which indemnification has been sought Indemnitee other than the payment of money to be paid by the Indemnifying Party pursuant to (and is available hereunder; provided that, subject to the extent that such settlement requires limitations of) this Agreement and (B) a release from all Liability in favor of the Indemnified Party to takeIndemnitee, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim or compromise any Third Party Claim without the prior written consent of the Indemnified PartyIndemnitee, such which consent shall not to be unreasonably withheld, conditioned or delayed. ; and (ii) the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a Third Party Claim that does not include a release of the Indemnitee from all Liability in respect of such Third Party Claim. (c) If the Indemnifying Party does not assume elect to proceed with the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationany such Third Party Claim or does not reasonably diligently prosecute such defense, the Indemnified Party Indemnitee shall have (at the right to assume control sole expense of the Indemnifying Party) proceed with the defense of such claim through Third Party Claim with counsel of its choice, reasonably acceptable to the reasonable costs of which Indemnitee; provided that (i) the Indemnifying Party shall be entitled to a right to participate in any such Third Party Claim at its own cost and expense; (ii) except for the settlement of a Third Party Claim that involves (A) no obligation of any Indemnifying Party other than the payment of money pursuant to (and subject to the limitations of this ARTICLE VII) and (B) a release from all Liability in favor of the Indemnifying Party’s expense in , the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, Indemnitee shall not settle or compromise or other legal proceeding. In no circumstance may the Indemnified any Third Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party Claim without first obtaining the prior written consent of the Indemnifying Party, such which consent shall not to be unreasonably withheld, conditioned or delayed; and (iii) the Indemnitee may not consent to entry of any judgment or enter into any settlement in respect of a Third Party Claim that does not include a release of the Indemnifying Party from all Liability in respect of such Third Party Claim. (d) The party controlling the defense of any Third Party Claim (the “Controlling Party”) shall (i) permit the other applicable parties (collectively, the “Non-Controlling Party”) to participate, at their own expense, in the defense of such Third Party Claim, (ii) conduct the defense of such Third Party Claim with reasonable diligence and keep the Non-Controlling Party reasonably informed of material developments in such Third Party Claim at all stages thereof, (iii) promptly submit to the Non-Controlling Party copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (iv) permit the Non-Controlling Party and its counsel to confer on the conduct of the defense thereof and (v) permit the Non-Controlling Party and its counsel an opportunity to review all legal papers to be submitted prior to their submission and consider in good faith any comments from the Non-Controlling Party and its counsel thereto.