Common use of Right to Participate in Defense Clause in Contracts

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (i) the employment thereof has been specifically authorized by the indemnifying Party in writing, (ii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) (in which case the Indemnified Party will control the defense), (iii) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (iv) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***]percent ([***]%) of any such costs and expenses of counsel for the Indemnified Party. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any The Indemnified Party will shall be entitled to participate in, but not control, the defense of such a Third Party Claim and to employ [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. counsel of its choice for such purpose; provided, however, that such employment will shall be at the Indemnified Party’s own sole cost and expense unless (ia) the employment thereof has been specifically authorized by the indemnifying Indemnifying Party in writing, (iib) the indemnifying Indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) 8.2.2 (in which case the Indemnified Party will shall control the defense), or (iiic) the interests of the Indemnified Party and any Forest Indemnitee or Xxxxxxx Indemnitee, as applicable, on the indemnifying Party one hand, and the Indemnifying Party, on the other hand, with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties all such Persons under applicable Applicable Law, ethical rules or equitable principles, or principles (iv) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Indemnifying Party will assume [***]percent ([***]%) shall control its defense and the Indemnified Party shall control the defense of the Forest Indemnitees or the Xxxxxxx Indemnitees, as applicable). In any such event ((a), (b) or (c)), the Indemnifying Party shall reimburse the Indemnified Party (pursuant to Section 8.2.6) for any costs and expenses incurred in connection with such defense (including the cost of counsel for the Indemnified Party. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDcounsel).

Right to Participate in Defense. Without limiting Section 9.6(d)(i16.7(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (i) the employment thereof has been specifically authorized by the indemnifying Party in writing, (ii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i16.7(d)(i) (in which case the Indemnified Party will control the defense), (iii) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse 44 CONFIDENTIAL TREATMENT REQUESTED BY BLUEBIRD BIO, INC. [***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES ACT OF 1934, AS AMENDED to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (iv) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***]percent ([***]%) ] of any such costs and expenses of counsel for the Indemnified Party. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (iA) the employment thereof has been specifically authorized by the indemnifying Party in writing, (iiB) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) (in which case the Indemnified Party will control the defense), (iiiC) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (ivD) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***]] percent ([***]%) of any such costs and expenses of counsel for the Indemnified Party. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 19331934, AS AMENDED.. License Agreement

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Any Indemnified Party will shall be entitled to participate in, but not control, in the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will shall be at the Indemnified Party’s own sole cost and expense unless (i) the employment thereof has been specifically authorized in writing in advance by the indemnifying Indemnifying Party (in writingwhich case, the defense shall be controlled as provided in Section 14.3(b) (Control of Defense), with such provisions applying mutatis mutandis; (ii) the indemnifying Indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i14.3(b) (Control of Defense) (in which case the Indemnified Party will shall control the defense, with the reasonable [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED. out-of-pocket expense with respect thereto borne by the Indemnifying Party), ; or (iii) the interests of the Indemnified Party indemnitee and the indemnifying Indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable LawApplicable Laws, ethical rules or equitable principlesprinciples (in which case, or (iv) the Indemnified Party shall control its defense, with the reasonable out-of-pocket expense with respect thereto borne by the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***]percent ([***]%) of any such costs and expenses of counsel for the Indemnified Party. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED).

Right to Participate in Defense. Without limiting Section 9.6(d)(i)9.5.2, any Indemnified Party will Indemnitee shall be entitled to (a) participate in, but not control, the defense of such Third Third-Party Claim and to employ engage counsel of its choice for such purpose; provided, however, that such employment will engagement shall be at the Indemnified Party’s Indemnitee's own cost and expense unless (i) the employment engagement thereof has been specifically authorized by the indemnifying Party in writing, and (iib) control its defense of such Third-Party Claim and to engage counsel of its choice for such purpose, at the expense of the indemnifying Party, if (i) the indemnifying Party has failed to assume the defense and employ engage counsel in accordance with Section 9.6(d)(i9.5.2, (ii) (in which case the Indemnified use of the counsel chosen by the indemnifying Party will control the defense)would present such counsel with a conflict of interest, (iii) the interests of actual or potential defendants in, or targets of, such action include both the Indemnifying Party and the Indemnitee or the Indemnified Party, and the Indemnified Party and reasonably concludes that there may be legal defenses available to it or the Indemnitee that are different from or additional to those available to the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable LawParty, ethical rules or equitable principles, or (iv) the indemnifying Party no longer satisfies denies or fails to timely admit its obligation to defend and indemnify the Litigation Conditionsaction, or (v) in which case the indemnifying Party will assume [***]percent ([***]%) of any such costs and expenses reasonable opinion of counsel for to the Indemnified Party. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDthe claim could result in the Indemnitee or the Indemnified Party becoming subject to injunctive relief or relief other than the payment of money damages that could have a materially adverse effect on the ongoing business of such Indemnitee of the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Any Indemnified Party will shall be entitled to participate in, but not control, in the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will shall be at the Indemnified Party’s own sole cost and expense unless (i) the employment thereof has been specifically authorized in writing in advance by the indemnifying Indemnifying Party (in writingwhich case, the defense shall be controlled as provided in Section 13.3(b) (Control of Defense), with such provisions applying mutatis mutandis; (ii) the indemnifying Indemnifying Party has failed to assume the defense CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [*****], HAS BEEN OMITTED BECAUSE VISTAGEN THERAPEUTICS, INC. HAS DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO SUPER LEAGUE GAMING, INC. IF PUBLICLY DISCLOSED. and employ counsel in accordance with Section 9.6(d)(i13.3(b) (Control of Defense) (in which case the Indemnified Party will shall control the defense, with the reasonable out-of-pocket expense with respect thereto borne by the Indemnifying Party), ; or (iii) the interests of the Indemnified Party indemnitee and the indemnifying Indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable LawApplicable Laws, ethical rules or equitable principlesprinciples (in which case, or (iv) the Indemnified Party shall control its defense, with the reasonable out-of-pocket expense with respect thereto borne by the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***]percent ([***]%) of any such costs and expenses of counsel for the Indemnified Party. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED).

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (iA) the employment thereof has been specifically authorized by the indemnifying Party in writing, (iiB) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) (in which case the Indemnified Party will control the defense), (iiiC) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (ivD) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***]percent ([***]%) ] of any such costs and expenses of counsel for the Indemnified Party. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. A COMPLETE VERSION OF THIS EXHIBIT ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 19331934, AS AMENDED.