Common use of Settlement of Third Party Claims Clause in Contracts

Settlement of Third Party Claims. The Indemnifying Party shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The Should any claim be made by a person or entity not a party to this Agreement with respect to any matter covered by the indemnities contained in this Article VI, including without limitation, any claim by a governmental body in connection with the audit of any federal, state or local tax return, the party or parties being indemnified (the “Indemnified Party”), on not less than 30 days’ notice to the party making the indemnification (the “Indemnifying Party”), may make settlement (including payment in full) of such claim and such settlement shall be binding upon all parties hereto for the purposes hereof, unless within said 30-day period the Indemnifying Party shall have requested the Indemnified Party to contest such claim at the expense of the Indemnifying Party. In such event, the Indemnified Party shall, upon posting of the bond or alternative security described below, comply with such request and the Indemnifying Party shall have the right to direct the defense of such claim or any litigation based thereon at the Indemnifying Party’s expense through counsel of its own choosing on condition that such counsel agrees to look solely to the Indemnifying Party for payment of its fees. If the Indemnifying Party does retain counsel on such terms, then the Indemnified Party shall not be liable entitled to indemnification under the next sentence of this paragraph for the cost of any Third separate counsel it may retain in the matter. In the event the Indemnifying Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is shall so request the Indemnified PartyParty to contest such claim, no amounts payable the Indemnifying Party shall first furnish to the Indemnified Party as indemnity against the contested claim a bond in respect the amount of the third party claim plus the amount of any such settlement expenses reasonably likely to be incurred by the Indemnified Party in contesting, defending and litigating the same. In no event shall the Indemnifying Party or compromise of a Third Party Claim made its counsel, without the prior written consent of the Indemnifying Party shall be taken into account in Indemnified Party, settle or compromise any claim or consent to the computation entry of any judgment which does not include as an unconditional term thereof the Cumulative Threshold Amount). In such connection, in giving by the event that (x) claimant or the plaintiff to the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive a release from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party all liability in respect of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimclaim.

Settlement of Third Party Claims. The Should any claim be made by a person or entity not a party to this Agreement with respect to any matter covered by the indemnities contained in this Article VI, including without limitation, any claim by a governmental body in connection with the audit of any federal, state or local tax return, the party or parties being indemnified (the "Indemnified Party"), on not less than 30 days' notice to the party making the indemnification (the "Indemnifying Party"), may make settlement (including payment in full) of such claim and such settlement shall be binding upon all parties hereto for the purposes hereof, unless within said 30-day period the Indemnifying Party shall have requested the Indemnified Party to contest such claim at the expense of the Indemnifying Party. In such event, the Indemnified Party shall, upon posting of the bond or alternative security described below, comply with such request and the Indemnifying Party shall have the right to direct the defense of such claim or any litigation based thereon at the Indemnifying Party's expense through counsel of its own choosing on condition that such counsel agrees to look solely to the Indemnifying Party for payment of its fees. If the Indemnifying Party does retain counsel on such terms, then the Indemnified Party shall not be liable entitled to indemnification under the next sentence of this paragraph for the cost of any Third separate counsel it may retain in the matter. In the event the Indemnifying Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is shall so request the Indemnified PartyParty to contest such claim, no amounts payable the Indemnifying Party shall first furnish to the Indemnified Party as indemnity against the contested claim a bond in respect the amount of the third party claim plus the amount of any such settlement expenses reasonably likely to be incurred by the Indemnified Party in contesting, defending and litigating the same. In no event shall the Indemnifying Party or compromise of a Third Party Claim made its counsel, without the prior written consent of the Indemnifying Party shall be taken into account in Indemnified Party, settle or compromise any claim or consent to the computation entry of any judgment which does not include as an unconditional term thereof the Cumulative Threshold Amount). In such connection, in giving by the event that (x) claimant or the plaintiff to the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive a release from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party all liability in respect of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimclaim.

Settlement of Third Party Claims. The Indemnifying In the event that the Indemnified Party shall not be liable for settles any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party, the Indemnifying Party shall be taken into account in have no further indemnification obligations under this Article V with respect to such Third Party Claim; provided, however, that if the computation Indemnifying Party refuses to defend or otherwise handle such Third Party Claim and it is subsequently determined that the Indemnifying Party is or was obligated to defend or indemnify the Indemnified Party with respect to such Third Party Claim, then the Indemnifying Party shall remain obligated with respect to such settlement amount. If the Indemnifying Party controls the defense of any such Third Party Claim, the Cumulative Threshold Amount). In such connection, in Indemnifying Party shall obtain the event that (x) prior written consent of the Indemnified Party (which shall not be unreasonably withheld or if the Purchaser is the Indemnified Party, the Companydelayed) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of before entering into any settlement of a Third Party Claim (or ceasing to defend such Third Party Claim if, pursuant to or as a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party result of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding theretosettlement or cessation, injunctive or reasonably in advance of making such Settlement Offer, and other equitable relief shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either be imposed against the Indemnified Party or if such settlement or cessation does not expressly and unconditionally release the Indemnifying Party, the Parties will consult in good faith Indemnified Party from all liabilities and obligations with respect to any such Settlement Offer. The Indemnifying Third Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement OfferClaim, without prejudice. In the event that the Indemnifying Party proposes a Settlement Offer is received settlement to any Third Party Claim which the Indemnifying PartyParty is or was entitled to defend, but not which settlement is satisfactory to the Indemnified Partyparty instituting such Third Party Claim, is willing to accept, and the Indemnified Party may elect withholds its consent to continue such settlement, and thereafter a final judgment is entered against the defense Indemnifying Party or Indemnified Party pursuant to which damages exceed the amount of the proposed settlement, then in such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited have no obligation to indemnify the lesser of: (i) Indemnified Party under this Article V against and in respect of the amount by which the damages resulting from such final judgment exceed the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimsettlement.

Settlement of Third Party Claims. The Indemnifying (A) If the Seller elects to control of the defense of a Third Party Claim as provided in Section 7.4(d)(ii), the Seller shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made by the Purchaser or the Company without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount)consent. In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is or the Indemnified Party, the Company) shall receive Company receives from a Third Party or (y) the Indemnified Party (or if the Purchaser is or the Indemnified Party, the Company) shall propose Company proposes to make to a Third Party, Party an offer of settlement of a such Third Party Claim (a “Settlement Offer”"SETTLEMENT OFFER"), the Indemnified Party Purchaser or the Company shall notify the Indemnifying Party Seller of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party Seller to assess the relative merits of the Settlement Offer. At the reasonable request re- quest of either of the Indemnified Party or the Indemnifying PartyParties, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party Within 20 Business Days from the receipt of the Settlement Offer notification, the Seller shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer, which consent shall not be unreasonably withheld. In the event that If a Settlement Offer involving only the payment of monetary damages is received received, which the Indemnifying PartySeller, but not the Indemnified PartyPurchaser, is willing to accept, the Indemnified Party Purchaser may elect to continue the defense of such Third Party Claim at its own expense; provided that, in which case that case, the liability of the Indemnifying Party Seller shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; , and (ii) the Damages actually suffered by the Indemnified Party (or, if Purchaser or the Purchaser is the Indemnified Party, the Company), Company taking into account the final determination of the Third Party Claim. The Seller shall not consent to any Settlement Offer involving relief other than or in addition to the payment of monetary damages without the Purchaser's written consent.

Settlement of Third Party Claims. In connection with any indemnification claim arising out of a claim or legal proceeding (a “Third Party Claim”) by a person or entity who is not a Party, the Indemnifying Party shall be entitled to control the defense of any such claim with counsel reasonably acceptable to the Indemnified Party at the Indemnifying Party’s own cost and expense, including the cost and expense of reasonable attorneys’ fees and disbursements in connection with such defense. The Indemnifying Party shall not be liable for entitled to agree to a settlement of, or the stipulation of any judgment arising from, any such Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is Claim, provided, however, that the Indemnified Party, no amounts payable in respect Party shall have the right to consult as to the conduct of any such settlement or compromise stipulation, including, without limitation, the strategy to be employed and the amounts and nature of a Third any settlement or the terms of any stipulation, including consent thereto, which consent shall not be unreasonably withheld or delayed by the Indemnified Party; provided, further, that no such consent shall be required from the Indemnified Party Claim made without the prior written consent of if (A) the Indemnifying Party shall pays or causes to be taken into account in paid all Losses arising out of such settlement or judgment concurrently with the computation of the Cumulative Threshold Amount). In such connection, in the event that effectiveness thereof (x) as well as all other Losses theretofore incurred by the Indemnified Party which then remain unpaid or unreimbursed and are otherwise indemnifiable pursuant to this Article VIII), (or if B) in the Purchaser case of a settlement, the settlement is conditioned upon a complete release by the claimant of the Indemnified Party, and (C) such settlement or judgment does not require the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer encumbrance of settlement any asset of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Partyimpose any restriction upon its conduct of business or otherwise materially adversely affect its business, the Parties will consult in good faith with respect to including, without limitation, use of any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party ClaimIntellectual Property.

Settlement of Third Party Claims. The Should any claim be made by a -------------------------------- person or entity not a party to this Agreement with respect to any matter covered by the indemnities contained in this Article IX or in Article X, including without limitation, any claim by a governmental body in connection with the audit of any federal, state or local tax return, the party or parties being indemnified (the "Indemnified Party"), on not less than 30 days' notice to the party making the indemnification (the "Indemnifying Party"), may make settlement (including payment in full) of such claim and such settlement shall be binding upon all parties hereto for the purposes hereof, unless within said 30-day period the Indemnifying Party shall have requested the Indemnified Party to contest such claim at the expense of the Indemnifying Party. In such event, the Indemnified Party shall, upon posting of the bond or alternative security described below, comply with such request and the Indemnifying Party shall have the right to direct the defense of such claim or any litigation based thereon at the Indemnifying Party's expense through counsel of its own choosing on condition that such counsel agrees to look solely to the Indemnifying Party for payment of its fees. If the Indemnifying Party does retain counsel on such terms, then the Indemnified Party shall not be liable entitled to indemnification under the next sentence of this paragraph for the cost of any Third separate counsel it may retain in the matter. In the event the Indemnifying Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is shall so request the Indemnified PartyParty to contest such claim, no amounts payable the Indemnifying Party shall first furnish to the Indemnified Party as indemnity against the contested claim a bond in respect the amount of the third party claim plus the amount of any expenses reasonably likely to be incurred by the Indemnified Party in contesting , defending and litigating the same, provided, however, that to the extent any balance is owing under this Agreement from the Indemnified Party to the Indemnifying Party (e.g., any balance owed under the Note or the Annual Earn-Out Payment), the Indemnified Party shall be required to accept as alternative security for such settlement indemnity a suspension of any payments of such balance until final resolution of the third party claim. In no event shall the Indemnifying Party or compromise of a Third Party Claim made its counsel, without the prior written consent of the Indemnifying Party shall be taken into account in Indemnified Party, settle or compromise any claim or consent to the computation entry of any judgment which does not include as an unconditional term thereof the Cumulative Threshold Amount). In such connection, in giving by the event that (x) claimant or the plaintiff to the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive a release from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party all liability in respect of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimclaim.

Settlement of Third Party Claims. The In connection with the settlement or compromise of any Third Party Claim (except for any Third Party Claims that are indemnifiable under SECTION 8.2(a)(viii), the process for which is set forth in SECTION 8.2(d)(ii)), the Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be liable unreasonably withheld or delayed), (A) settle or compromise any Third Party Claims or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third Party Claim of all Indemnified Parties affected by such Third Party Claim or (B) settle or compromise any Third Party Claim if the settlement or compromise imposes equitable remedies or material obligations on the Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder or (C) settle or compromise any Third Party Claim if the Indemnified Party will be required to make any payment with respect to such compromise or settlement due to the application of the limitations of SECTION 8.3. No Third Party Claim which is being defended in good faith by the Indemnifying Party or which is being defended by the Indemnified Party in accordance with the terms of this Agreement shall be settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is by the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party (which consent shall not be taken into account in the computation of the Cumulative Threshold Amountunreasonably withheld or delayed). In such connection; PROVIDED, in the event that (x) the Indemnified Party (or HOWEVER, if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim is being defended by an Indemnified Party pursuant to the last sentence of clause (a “Settlement Offer”), ii) above (unless the Indemnifying Party and Indemnified Party mutually agree that the Indemnified Party shall notify defend such Third Party Claim), the limitations on the Indemnified Party's right to settle or compromise set forth in this clause (iii) shall not apply to such Indemnified Party, unless the Indemnifying Party has been advancing (in a timely manner) payment of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party Indemnified Party's costs and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide expenses associated with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered upon demand therefor by the Indemnified Party (or, if subject to the Purchaser is undertaking of the Indemnified Party, Party to reimburse such advances in the Companyevent such costs of defense are not ultimately to be indemnifiable under this ARTICLE VIII), taking into account the final determination of the Third Party Claim.. E-91

Settlement of Third Party Claims. The In connection with the settlement or compromise of any Third Party Claim, the Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be liable unreasonably withheld), (1) settle or compromise any Third Party Claims or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third Party Claim of all Indemnified Parties affected by such Third Party Claim or (2) settle or compromise any Third Party Claim if the settlement or compromise imposes equitable remedies or obligations on the Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder or (3) settle or compromise any Third Party Claim if the Indemnified Party will be required to make any payment with respect to such compromise or settlement due to the application of the limitations of Section 15(d). No Third Party Claim which is being defended in good faith by the Indemnifying Party or which is being defended by the Indemnified Party in accordance with the terms of this Agreement shall be settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is by the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party (which consent shall not be taken into account in the computation of the Cumulative Threshold Amountunreasonably withheld, conditioned or delayed). In such connection; provided, in the event that (x) the Indemnified Party (or however, if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim is being defended by an Indemnified Party pursuant to the last sentence of clause (a “Settlement Offer”), B) above (unless the Indemnifying Party and Indemnified Party mutually agree that the Indemnified Party shall notify defend such Third Party Claim), the limitations on the Indemnified Party's right to settle or compromise set forth in this clause (C) shall not apply to such Indemnified Party, unless the Indemnifying Party has been advancing (in a timely manner) payment of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party Indemnified Party's costs and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide expenses associated with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered upon demand therefor by the Indemnified Party (or, if subject to the Purchaser is undertaking of the Indemnified Party, Party to reimburse such advances in the Companyevent such costs of defense are not ultimately to be indemnifiable under this Section 15), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, if the Indemnifying’Party assumes the defense of any Third Party Claim pursuant to Section 8.05, (i) the Indemnified Party shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim and (ii) the Indemnifying Party shall not be liable for consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or which consent shall be given if the Purchaser is the Indemnified Party, the Companysettlement by its terms (1) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable obligates the Indemnifying Party to assess pay the relative merits full amount of the Settlement Offer. At the reasonable request of either liability in connection with such Third Party Claim, (2) fully and finally releases the Indemnified Party completely in,oonnection with such Third Party Claim, anci (3) does not iml)ose any obligation or restriction on’sueh In9e111nified Party i or its Affiliates). If the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Iridemni.fying Party shall then determine in the exercise of its own business judgment whether or does not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue assume the defense of such Third Party Claim at its own expenseClaims or fails to diligently prosecute or withdraws from the defense of a Third Party Claim, in the Indemnifying Party will not be obligated to indemnify the Indemnified Party for any settlement entered into Oli any judgment consented to without the prior the Indemnifying Party’s prior written consent (which case the liability of consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding any other provision ofthis Agreement, whether or not the Indemnifying Party shall be limited to 11.ave assumed the lesser of: (i) the amount defense of Damages calculated as if the aThitd·Party·Claim, if.the Indemnified Party admits any liability. with respect to, or settles, compromises or discharges·; such Third Party Claim were settled in accordance with without the proposed Settlement Offer; and Indemnifying Party’s prior written consent (ii) the Damages actually suffered by which consent,shall not be unreasonably withheld, delayed or cmiditioned), then such admission, settlement or ..comptomise wili not be binding upon or constitute.evidence against he Indemnifying Party for purposes-0ftletermining whether the Indemnified Party (or, if has incurred Losses that are indemni:fiable pursuantl to ,this Article,VIII or the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimamount thereof.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not be liable for enter into settlement of any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (which consent shall not be unreasonably withheld or if the Purchaser delayed), except as provided in this Section 7.05(b). If a firm offer is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose made to make to a Third Party, an offer of settlement of settle a Third Party Claim (without leading to liability or the creation of a “Settlement Offer”), financial or other obligation on the part of the Indemnified Party shall notify and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party of desires to accept and agree to such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding theretooffer, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party shall give written notice to assess that effect to the relative merits of the Settlement OfferIndemnified Party. At the reasonable request of either If NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY [****] ARE SUBJECT TO A CONFIDENTIAL TREATMENT REQUEST, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. COMPLETE, UNREDACTED COPIES OF THIS EXHIBIT HAVE BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST. the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not fails to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to acceptsuch firm offer within fifteen (15) Business Days after its receipt of such notice, the Indemnified Party may elect continue to continue contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim at its own expenseupon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 7.05(a), in which case it shall not agree to any settlement without the liability written consent of the Indemnifying Party (which consent shall not be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Companyunreasonably withheld or delayed), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The Indemnifying Party shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “"Settlement Offer”"), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The In connection with the settlement or compromise of any Third Party Claim, the Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be liable unreasonably withheld), (A) settle or compromise any Third Party Claims or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third Party Claim of all Indemnified Parties affected by such Third Party Claim or (B) settle or compromise any Third Party Claim if the settlement or compromise imposes equitable remedies or obligations on the Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder or (C) settle or compromise any Third Party Claim if the Indemnified Party will be required to make any payment with respect to such compromise or settlement due to the application of the limitations of Section 10.4. No Third Party Claim which is being defended in good faith by the Indemnifying Party or which is being defended by the Indemnified Party in accordance with the terms of this Agreement shall be settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is by the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party (which consent shall not be taken into account in the computation of the Cumulative Threshold Amountunreasonably withheld, conditioned or delayed). In such connection; provided, in the event that (x) the Indemnified Party (or however, if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim is being defended by an Indemnified Party pursuant to the last sentence of clause (a “Settlement Offer”), ii) above (unless the Indemnifying Party and Indemnified Party mutually agree that the Indemnified Party shall notify defend such Third Party Claim), the limitations on the Indemnified Party's right to settle or compromise set forth in this clause (iii) shall not apply to such Indemnified Party, unless the Indemnifying Party has been advancing (in a timely manner) payment of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party Indemnified Party's costs and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide expenses associated with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered upon demand therefor by the Indemnified Party (or, if subject to the Purchaser is undertaking of the Indemnified Party, Party to reimburse such advances in the Companyevent such costs of defense are not ultimately to be indemnifiable under this Article X), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The Indemnifying If an Indemnifier elects to assume the defence of any Third Party Claim as provided in Section 5.4 hereof, the Indemnifier shall not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defence thereof. However, if the Indemnifier fails to take reasonable steps necessary to defend diligently such Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is within 30 calendar days after receiving notice from the Indemnified PartyParty that the Indemnified Party bona fide believes on reasonable grounds that the Indemnifier has failed to take such steps, no amounts payable in respect the Indemnified Party may, at its option, elect to assume the defence of any such settlement and to compromise or compromise of a settle the Third Party Claim made without assisted by counsel of its own choosing and the Indemnifier shall be liable for all costs and expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) Indemnifier shall receive from a not enter into any compromise or settlement of any Third Party Claim which would lead to liability or (y) create any financial or other material obligation on the part of the Indemnified Party (or if the Purchaser is for which the Indemnified Party, the Company) shall propose Party is not entitled to make indemnification hereunder. If a firm offer is made to a Third Party, an offer of settlement of settle a Third Party Claim (without leading to liability or the creation of a “Settlement Offer”), financial or other obligation on the part of the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either for which the Indemnified Party or is not entitled to indemnification hereunder and the Indemnifying PartyIndemnifier desires to accept such offer, the Parties will consult in good faith with respect Indemnifier shall give written notice to any such Settlement Offerthe Indemnified Party to that effect. The Indemnifying If the Indemnified Party shall then determine in the exercise of its own business judgment whether or not fails to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to acceptsuch firm offer within 30 calendar days after its receipt of such notice, the Indemnified Party may elect continue to continue the defense of contest or defend such Third Party Claim at its own expenseand, in which case such event, the maximum liability of the Indemnifying Indemnifier with respect to such Third Party Claim shall be limited to the lesser of: (ia) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by offer of settlement which the Indemnified Party refused to accept plus the costs and expenses of the Indemnified Party prior to the date the Indemnifier notifies the Indemnified Party of the offer of settlement and (orb) the actual out-of-pocket amount the Indemnified Party is obligated to pay as a result of continuing to pursue such matter, if the Purchaser whichever is the lesser. An Indemnifier shall be entitled to recover from the Indemnified PartyParty any, the Company), taking into account the final determination additional expenses incurred by such Indemnifier as a result of the decision of the Indemnified Party to contest or defend such Third Party Claim.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, if the Indemnifying Party assumes the defense of any Third Party Claim pursuant to Section 7.05, (i) the Indemnified Party shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim and (ii) the Indemnifying Party shall not be liable for consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or which consent shall be given if the Purchaser is the Indemnified Party, the Companysettlement by its terms (1) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable obligates the Indemnifying Party to assess pay the relative merits full amount of the Settlement Offer. At the reasonable request of either liability in connection with such Third Party Claim, (2) fully and finally releases the Indemnified Party completely in connection with such Third Party Claim, and (3) does not impose any obligation or restriction on such Indemnified Party or its Affiliates). If the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or does not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue assume the defense of such Third Party Claim at its own expenseClaims or fails to diligently prosecute or withdraws from the defense of a Third Party Claim, in the Indemnifying Party will not be obligated to indemnify the Indemnified Party for any settlement entered into or any judgment consented to without the prior the Indemnifying Party’s prior written consent (which case the liability consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding any other provision of this Agreement, whether or not the Indemnifying Party shall be limited to have assumed the lesser of: (i) the amount defense of Damages calculated as a Third Party Claim, if the Indemnified Party admits any liability with respect to, or settles, compromises or discharges, such Third Party Claim were settled in accordance with without the proposed Settlement Offer; and Indemnifying Party’s prior written consent (ii) which consent shall not be unreasonably withheld, delayed or conditioned), then such admission, settlement or compromise will not be binding upon or constitute evidence against the Damages actually suffered by Indemnifying Party for purposes of determining whether the Indemnified Party (or, if has incurred Losses that are indemnifiable pursuant to this Article VII or the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimamount thereof.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, the Indemnifying Party shall will not be liable for enter into settlement of any Third Third-Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Indemnified Party shall (which consent will not be taken into account unreasonably withheld or delayed), except as provided in the computation of the Cumulative Threshold Amountthis Section 7.05(b). In such connection, in If a firm offer is made to settle a Third-Party Claim without leading to liability or the event that (x) creation of a financial or other obligation on the part of the Indemnified Party (other than any such liability or if obligation satisfied by the Purchaser is Indemnifying Party) and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations PR01/ 1485553.8 in connection with such Third-Party Claim (such offer, a “Total Release Firm Offer”) and the Indemnifying Party desires to accept and agree to such Total Release Firm Offer, the Indemnifying Party will give written notice to that effect to the Indemnified Party, the Company) shall receive from a Third Party or (y) . If the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not fails to consent to the Settlement Offer. In the event that a Settlement such Total Release Firm Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to acceptwithin 10 days after its receipt of such notice, the Indemnified Party may elect continue to continue the defense of contest or defend such Third Third-Party Claim at its own expensesole cost and expense and in such event, in which case the maximum liability of the Indemnifying Party shall be limited as to the lesser of: (i) such Third-Party Claim will not exceed the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement such Total Release Firm Offer; and (ii) the Damages actually suffered by . If the Indemnified Party fails to consent to such Total Release Firm Offer and also fails to assume defense of such Third-Party Claim, the Indemnifying Party may settle the Third-Party Claim upon the terms set forth in such Total Release Firm Offer to settle such Third-Party Claim. If a firm offer (orother than a Total Release Firm Offer) is made to settle a Third-Party Claim, if the Purchaser is Indemnifying Party may not settle such Third-Party Claim without the prior written consent of the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimwhich consent shall not be unreasonably withheld or delayed.

Settlement of Third Party Claims. The Should any claim be made by a -------------------------------- person or entity not a party to this Agreement with respect to any matter covered by the indemnities contained in this Article VII, including without limitation, any claim by a governmental body in connection with the audit of any federal, state or local tax return, the party or parties being indemnified (the "Indemnified Party"), on not less than 30 days' notice to the party making the indemnification (the "Indemnifying Party"), may make settlement (including payment in full) of such claim and such settlement shall be binding upon all parties hereto for the purposes hereof, unless within said 30-day period the Indemnifying Party shall have requested the Indemnified Party to contest such claim at the expense of the Indemnifying Party. In such event, the Indemnified Party shall, upon posting of the bond or alternative security described below, comply with such request and the Indemnifying Party shall have the right to direct the defense of such claim or any litigation based thereon at the Indemnifying Party's expense through counsel of its own choosing on condition that such counsel agrees to look solely to the Indemnifying Party for payment of its fees. If the Indemnifying Party does retain counsel on such terms, then the Indemnified Party shall not be liable entitled to indemnification under the next sentence of this paragraph for the cost of any Third separate counsel it may retain in the matter. In the event the Indemnifying Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is shall so request the Indemnified PartyParty to contest such claim, no amounts payable the Indemnifying Party shall first furnish to the Indemnified Party as indemnity against the contested claim a bond in respect the amount of the third party claim plus the amount of any such settlement expenses reasonably likely to be incurred by the Indemnified Party in contesting, defending and litigating the same. In no event shall the Indemnifying Party or compromise of a Third Party Claim made its counsel, without the prior written consent of the Indemnifying Party shall be taken into account in Indemnified Party, settle or compromise any claim or consent to the computation entry of any judgment which does not include as an unconditional term thereof the Cumulative Threshold Amount). In such connection, in giving by the event that (x) claimant or the plaintiff to the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive a release from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party all liability in respect of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimclaim.

Settlement of Third Party Claims. The If the Indemnifying Party shall not be liable for fails to assume control of the defence of any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”)Claim, the Indemnified Party shall notify have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of such Settlement Offer as promptly as practicable upon receipt thereof from the negotiation, settlement or defence of any Third Party and reasonably in advance of responding theretoClaim, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess shall not settle any Third Party Claim without the relative merits written consent of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to acceptwhich consent shall not be unreasonably withheld or delayed; provided, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expensehowever, in which case that the liability of the Indemnifying Party shall be limited to the lesser of: proposed settlement amount if any such consent is not obtained for any reason. Claims Involving Taxes In the case of any proposed or actual assessment of a Tax liability of the Business for which the Purchaser or Land Purchaser is entitled to indemnification from the Vendor or any corporation within the Vendor's Group as provided herein, the Purchaser or Land Purchaser shall give prompt notice to the Vendor of such proposed or actual assessments in accordance with section 9.5 together with a copy of any related correspondence and the Purchaser or Land Purchaser, as the case may be, shall cause the Subco to contest such proposed or actual assessment in the manner directed by the Vendor (iin consultation with the Purchaser or Land Purchaser, as the case may be) through the administrative procedures or judicial appeal procedures available under the relevant Tax laws and regulations. No settlement in respect of such Tax liability shall be agreed to by the Purchaser or the Subco without the prior written consent of the Vendor, not to be unreasonably withheld. The Purchaser or Land Purchaser, as the case may be, shall not cause the relevant Subco to pay the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; assessment, and (ii) the Damages actually suffered by the Indemnified Party (orinterest or penalties, if the Purchaser is the Indemnified Partyany, the Company), taking into account prior to the final determination of the dispute except if requested in writing to do so by the Vendor. If the relevant Subco is required by law, or the Vendor requests the Purchaser or the Land Purchaser, as the case may be, to cause the relevant Subco, to pay the amount of the assessment pending the outcome of the dispute, the Purchaser or Land Purchaser, as the case may be, shall cause the relevant Subco to pay the Tax and shall be entitled to immediate indemnification from the Vendor or the relevant entity within the Vendor's Group (other than any Subco). If the relevant Subco subsequently receives a refund of all of part of the amount paid in respect of such assessment, the relevant Subco shall pay the Vendor or the relevant corporation in the Vendor Group (other than any Subco) the portion of the refund funded by the Vendor (to the extent of the indemnification payment) plus a corresponding portion of the interest, if any, that is paid by the appropriate Taxing Authority to the relevant Subco in respect of the refund. Co-operation The Indemnified Party and the Indemnifying Party shall co-operate fully with each other with respect to Third Party ClaimClaims, and shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available).

Settlement of Third Party Claims. The Indemnifying Seller agrees to notify Buyer of any action by a third party which, in the opinion of Seller, is reasonably likely to give rise to a claim for indemnification hereunder (a “Seller Third Party Action”). Seller may, at its election and at its sole cost and expense, participate in the defense of a Seller Third Party Action and employ counsel separate from the counsel employed by Seller. To the extent that Buyer shall acknowledge its obligations to indemnify Seller for any Seller Third Party Action, Buyer shall have the right to conduct and control, through counsel of its own choosing, any Seller Third Party Action, but Seller may, at its election and at its sole cost and expense, participate in the defense of any such Seller Third Party Action and employ counsel separate from the counsel employed by Buyer, it being understood that Buyer shall have acknowledged its obligation to indemnify Seller and shall control such defense; provided, however, that if Buyer shall fail to diligently defend any such Seller Third Party Action, or is prohibited by a conflict of interest from defending such Seller Third Party Action, then Seller may, through counsel of its own choosing, defend such Seller Third Party Action and settle such Seller Third Party Action, and recover from Buyer the amount of such settlement or of any judgment and the full costs and expenses of such defense. Buyer and Seller agree that they will not settle any Seller Third Party Action without the consent of the other, which consent shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and unreasonably withheld. Seller further agrees that if the Purchaser is the Indemnified Party, no amounts payable in respect of any such Buyer wishes to enter into a settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any a Seller Third Party Action on terms reasonably acceptable to Buyer, Seller will cooperate in such Settlement Offer. The Indemnifying Party shall then determine in settlement, provided that Buyer directly pays the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense full amount of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimsettlement.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not be liable for enter into settlement of any Third Third-Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), except as provided in this Section 6.05(b). 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 Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third-Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall be taken into account in give written notice to that effect to the computation of the Cumulative Threshold Amount)Indemnified Party. In such connection, in the event that (x) If the Indemnified Party fails to consent to such firm offer within ten (or if the Purchaser is the Indemnified Party, the Company10) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer days after its receipt of settlement of a Third Party Claim (a “Settlement Offer”)such notice, the Indemnified Party shall notify may continue to contest or defend such Third-Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third-Party Claim shall not exceed the amount of such Settlement Offer as promptly as practicable upon receipt thereof from settlement offer. If the Third Indemnified Party fails to consent to such firm offer and reasonably in advance also fails to assume defense of responding theretosuch Third-Party Claim, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party may settle the Third-Party Claim upon the terms set forth in such firm offer to assess settle such Third-Party Claim. If the relative merits Indemnified Party has assumed the defense of a Third-Party Claim (including without limitation a Customer Claim) pursuant to Section 6.05(a), it shall not agree to any settlement without the written consent of the Settlement OfferIndemnifying Party (which consent shall not be unreasonably withheld or delayed). At In the reasonable request of event that a dispute arises as to whether consent that may not be unreasonably withheld or delayed has been unreasonably withheld or delayed by either the Indemnified Party or the Indemnifying PartyParty under this Section 6.05(b), as applicable, the Parties will consult in good faith prevailing party to such dispute shall be entitled to receive its reasonable attorneys’ fees and costs with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimdispute.

Settlement of Third Party Claims. The Indemnifying Indemnified Party shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of unilaterally settle a Third Party Claim made for which it seeks or may seek to be indemnified by the Indemnifying Party without the prior written consent of the Indemnifying Party shall be taken into account unless (i) in the computation case of settlement of claims against the Indemnified Party, such settlement will not create any financial liability or other obligation on the part of the Cumulative Threshold Amount). In Indemnifying Party and provides for a complete release of the Indemnifying Party’s continued obligation to defend and/or indemnify the Indemnified Party; or (ii) in the case of a settlement of claims against both the Indemnified Party and the Indemnifying Party, such connectionsettlement will not create any financial liability or other obligation on the part of the Indemnifying Party and provides, in customary form, for the event that (x) unconditional release of each Indemnifying Party from all liabilities and obligations in connection with such Third Party Claim. For the avoidance of doubt, this Section does not require an Indemnified Party to resolve any Third Party Claims against an Indemnifying Party in order to settle claims brought by a third party against the Indemnified Party. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not unilaterally settle any Third Party Claim without the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) unless such settlement will not lead to financial liability or if other obligation on the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) part of the Indemnified Party (or if and provides, in customary form, for the Purchaser is the unconditional release of each Indemnified Party, the Company) shall propose to make to Party from all liabilities and obligations in connection with such Third Party Claim. Direct Claims. Any Action by an Indemnified Party on account of a Third Party, an offer of settlement of Loss which does not result from a Third Party Claim (a “Settlement OfferDirect Claim”)) shall be asserted by the Indemnified Party by giving the Indemnifying Party written notice thereof prior to the expiration of the applicable survival period, if any, relating to the circumstance giving rise to such Direct Claim. Such notice by the Indemnified Party shall notify describe the Indemnifying Party Direct Claim in reasonable detail, shall include copies of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offerall material written evidence thereof, and shall provide with such notice all related available supporting documentation indicate the estimated amount, if reasonably required to enable the Indemnifying Party to assess the relative merits practicable, of the Settlement Offer. At the reasonable request of either Loss that has been or may be sustained by the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine have 30 days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the exercise of Indemnifying Party and its own business judgment whether professional advisors to investigate the matter or not circumstance alleged to consent give rise to the Settlement Offer. In Direct Claim, and whether and to what extent any amount is payable in respect of the event that a Settlement Offer is received which Direct Claim, and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to Sellers’ premises and personnel and the right to examine and copy any accounts, but documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not the Indemnified Party, is willing to acceptso respond within such 30 day period, the Indemnified Indemnifying Party may elect shall be deemed to continue the defense of have rejected such Third Party Claim at its own expenseclaim, in which case the liability of the Indemnifying Indemnified Party shall be limited free to the lesser of: (i) the amount of Damages calculated pursue such remedies as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by may be available to the Indemnified Party (or, if on the Purchaser is terms and subject to the Indemnified Party, the Company), taking into account the final determination provisions of the Third Party Claimthis Agreement.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not be liable for enter into settlement of any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from except as provided in this Section 8.05(b). If a Third Party or (y) the Indemnified Party (or if the Purchaser firm offer is the Indemnified Party, the Company) shall propose made to make to a Third Party, an offer of settlement of settle a Third Party Claim (without leading to liability or the creation of a “Settlement Offer”), financial or other obligation on the part of the Indemnified Party shall notify and provides, in customary form, for the Indemnifying Party unconditional release of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the each Indemnified Party or the Indemnifying Party, the Parties will consult from all liabilities and obligations in good faith connection with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of and the Indemnifying Party shall be limited desires to accept and agree to such offer, the lesser of: Indemnifying Party (i) the amount of Damages calculated as or, if the Third Indemnifying Party Claim were settled in accordance with is a Seller, the proposed Settlement Offer; and (iiSellers’ Representative) the Damages actually suffered by shall give written notice to that effect to the Indemnified Party (or, if the Purchaser Indemnified Party is a Seller, the Sellers’ Representative). If the Indemnified PartyParty or the Sellers’ Representative, as applicable, fails to consent to such firm offer within ten (10) days after its receipt of such notice, the Company)Indemnified Party or the Sellers’ Representative, taking into account as applicable, may continue to contest or defend such Third Party Claim and in such event, the final determination maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party (or, if the Indemnified Party is a Seller, the Sellers’ Representative) fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party (or, if the Indemnified Party is a Seller, the Sellers’ Representative) may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party or the Sellers’ Representative, as applicable, has assumed the defense pursuant to Section 8.05(a), he, she or it shall not agree to any settlement without the written consent of the Indemnifying Party (or, if the Indemnifying Party is a Seller, the Seller’s Representative) (which consent shall not be unreasonably withheld or delayed).

Settlement of Third Party Claims. The Indemnifying In the event that the Indemnified Party shall not be liable for settles any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party, the Indemnifying Party shall be taken into account in have no further indemnification obligations under this Article V with respect to such Third Party Claim; provided, however, that if the computation Indemnifying Party refuses to defend or otherwise handle such Third Party Claim and it is subsequently determined that the Indemnifying Party is or was obligated to defend or indemnify the Indemnified Party with respect to such Third Party Claim, then the Indemnifying Party shall remain obligated with respect to such settlement amount. If the Indemnifying Party controls the defense of any such Third Party Claim, the Cumulative Threshold Amount). In such connection, in Indemnifying Party shall obtain the event that (x) prior written consent of the Indemnified Party (which shall not be unreasonably withheld or if the Purchaser is the Indemnified Party, the Companydelayed) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of before entering into any settlement of a Third Party Claim (or ceasing to defend such Third Party Claim if, pursuant to or as a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party result of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding theretosettlement or cessation, injunctive or reasonably in advance of making such Settlement Offer, and other equitable relief shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either be imposed against the Indemnified Party or if such settlement or cessation does not expressly and unconditionally release the Indemnifying Party, the Parties will consult in good faith Indemnified Party from all liabilities and obligations with respect to any such Settlement Offer. The Indemnifying Third Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement OfferClaim, without prejudice. In the event that the Indemnifying Party proposes a Settlement Offer is received settlement to any Third Party Claim which the Indemnifying PartyParty is or was entitled to defend, but not which settlement is satisfactory to the Indemnified Partyparty instituting such Third Party Claim, is willing to accept, and the Indemnified Party may elect withholds its consent to continue such settlement, and thereafter a final judgment is entered against the defense Indemnifying Party or Indemnified Party pursuant to which Damages exceed the amount of the proposed settlement, then in such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited have no obligation to indemnify the lesser of: (i) Indemnified Party under this Article V against and in respect of the amount by which the Damages resulting from such final judgment exceed the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimsettlement.

Settlement of Third Party Claims. The Indemnifying CRA agrees to notify Tildxx xx any action by a third party which, in the opinion of CRA, is reasonably likely to give rise to a claim for indemnification hereunder (a "Third Party shall not be liable Action"). Tildxx xxx, at its election and at its sole cost and expense, participate in the defense of a Third Party Action and employ counsel separate from the counsel employed by CRA. To the extent that Tildxx xxxll acknowledge its obligations to indemnify CRA for any Third Party Claim which is settled or otherwise compromised or Action, Tildxx xxxll have the right to conduct and control, through counsel of its own choosing, any Third Party Action, but CRA may, at its election and at its sole cost and expense, participate in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect defense of any such Third Party Action and employ counsel separate from the counsel employed by Tildxx, xx being understood that Tildxx xxxll have acknowledged its obligation to indemnify CRA and shall control such defense; PROVIDED, HOWEVER, that if Tildxx xxxll fail to diligently defend any such Third Party Action, or is prohibited by a conflict of interest from defending such Third Party Action, then CRA may, through counsel of its own choosing, defend such Third Party Action and settle such Third Party Action, and recover from Tildxx xxx amount of such settlement or compromise of any judgment and the full costs and expenses of such defense. CRA and Tildxx xxxee that they will not settle any Third Party Action without the consent of the other, which consent shall not be unreasonably withheld. CRA further agrees that if Tildxx xxxhes to enter into a settlement with respect to a Third Party Claim made without Action on terms reasonably acceptable to CRA, CRA will cooperate in such settlement, provided that Tildxx xxxectly pays the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party full amount of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimsettlement.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, if the Indemnifying Party assumes the defense of any Third Party Claim pursuant to Section 8.5, (i) the Indemnified Party shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim and (ii) the Indemnifying Party shall not be liable for consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or which consent shall be given if the Purchaser is the Indemnified Party, the Companysettlement by its terms (1) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable obligates the Indemnifying Party to assess pay the relative merits full amount of the Settlement Offer. At the reasonable request of either liability in connection with such Third Party Claim, (2) fully and finally releases the Indemnified Party completely in connection with such Third Party Claim, and (3) does not impose any obligation or restriction on such Indemnified Party or its Affiliates). If the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or does not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue assume the defense of such Third Party Claim at its own expenseClaims or fails to diligently prosecute or withdraws from the defense of a Third Party Claim, in the Indemnifying Party will not be obligated to indemnify the Indemnified Party for any settlement entered into or any judgment consented to without the prior the Indemnifying Party’s prior written consent (which case the liability consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding any other provision of this Agreement, whether or not the Indemnifying Party shall be limited to have assumed the lesser of: (i) the amount defense of Damages calculated as a Third Party Claim, if the Indemnified Party admits any liability with respect to, or settles, compromises or discharges, such Third Party Claim were settled in accordance with without the proposed Settlement Offer; and Indemnifying Party’s prior written consent (ii) which consent shall not be unreasonably withheld, delayed or conditioned), then such admission, settlement or compromise will not be binding upon or constitute evidence against the Damages actually suffered by Indemnifying Party for purposes of determining whether the Indemnified Party (or, if has incurred Losses that are indemnifiable pursuant to this Section 8 or the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimamount thereof.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not be liable for enter into settlement of any Third Third-Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), except as provided in this Section 7.5(b). If a firm offer is made to settle a Third-Party Claim without leading to liability or the creation of a financial or other substantive obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third-Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall be taken into account in give written notice to that effect to the computation of the Cumulative Threshold Amount)Indemnified Party. In such connection, in the event that (x) If the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not fails to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to acceptsuch firm offer within ten (10) days after its receipt of such notice, the Indemnified Party may elect continue to continue the defense of contest or defend such Third Third-Party Claim at its own expenseand in such event, in which case the maximum liability of the Indemnifying Party as to such Third-Party Claim shall be limited to the lesser of: (i) not exceed the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by such settlement offer. If the Indemnified Party (orfails to consent to such firm offer and also fails to assume defense of such Third-Party Claim, if the Purchaser is Indemnifying Party may settle the Third-Party Claim upon the terms set forth in such firm offer to settle such Third-Party Claim. If the Indemnified PartyParty has assumed the defense pursuant to Section 7.5(a), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). In the event, however, that the Indemnified Party settles any claim without the written consent of the Indemnifying Party (in violation of the previous sentence), then, in that event, the Company), taking into account the final determination Indemnifying Party shall be relieved of the Third its obligations to indemnify hereunder unless such Indemnifying Party Claimhas acted unreasonably in withholding its consent.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, if the Indemnifying Party assumes the defense of any Third Party Claim pursuant to Section 7.5, (i) the Indemnified Party shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim and (ii) the Indemnifying Party shall not be liable for consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or which consent shall be given if the Purchaser is the Indemnified Party, the Companysettlement by its terms (1) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable obligates the Indemnifying Party to assess pay the relative merits full amount of the Settlement Offer. At the reasonable request of either liability in connection with such Third Party Claim, (2) fully and finally releases the Indemnified Party completely in connection with such Third Party Claim, and (3) does not impose any obligation or restriction on such Indemnified Party or its Affiliates). If the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or does not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue assume the defense of such Third Party Claim at its own expenseClaims or fails to diligently prosecute or withdraws from the defense of a Third Party Claim, in the Indemnifying Party will not be obligated to indemnify the Indemnified Party for any settlement entered into or any judgment consented to without the prior the Indemnifying Party’s prior written consent (which case the liability consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding any other provision of this Agreement, whether or not the Indemnifying Party shall be limited to have assumed the lesser of: (i) the amount defense of Damages calculated as a Third Party Claim, if the Indemnified Party admits any liability with respect to, or settles, compromises or discharges, such Third Party Claim were settled in accordance with without the proposed Settlement Offer; and Indemnifying Party’s prior written consent (ii) which consent shall not be unreasonably withheld, delayed or conditioned), then such admission, settlement or compromise will not be binding upon or constitute evidence against the Damages actually suffered by Indemnifying Party for purposes of determining whether the Indemnified Party (or, if has incurred Damages that are indemnifiable pursuant to this section or the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimamount thereof.

Settlement of Third Party Claims. The Indemnifying In the event that the Indemnified Party shall not be liable for settles any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party, the Indemnifying Party shall be taken into account in have no further indemnification obligations under this Article XIII with respect to such Third Party Claim; provided, however, that if the computation Indemnifying Party refuses to defend or otherwise handle such Third Party Claim and it is subsequently determined that the Indemnifying Party is or was obligated to defend or indemnify the Indemnified Party with respect to such Third Party Claim, then the Indemnifying Party shall remain obligated with respect to such settlement amount. If the Indemnifying Party controls the defense of any such Third Party Claim, the Cumulative Threshold Amount). In such connection, in Indemnifying Party shall obtain the event that (x) prior written consent of the Indemnified Party (which shall not be unreasonably withheld or if the Purchaser is the Indemnified Party, the Companydelayed) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of before entering into any settlement of a Third Party Claim (or ceasing to defend such Third Party Claim if, pursuant to or as a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party result of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding theretosettlement or cessation, injunctive or reasonably in advance of making such Settlement Offer, and other equitable relief shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either be imposed against the Indemnified Party or if such settlement or cessation does not expressly and unconditionally release the Indemnifying Party, the Parties will consult in good faith Indemnified Party from all liabilities and obligations with respect to any such Settlement Offer. The Indemnifying Third Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement OfferClaim, without prejudice. In the event that the Indemnifying Party proposes a Settlement Offer is received settlement to any Third Party Claim with respect to which the Indemnifying PartyParty is or was entitled to defend, but not which settlement is satisfactory to the Indemnified Partyparty instituting such Third Party Claim, is willing to accept, and the Indemnified Party may elect withholds its consent to continue such settlement, and thereafter a final judgment is entered against the defense Indemnifying Party or Indemnified Party pursuant to which Losses exceed the amount of the proposed settlement, then in such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited have no obligation to indemnify the lesser of: (i) Indemnified Party under this Article XIII against and in respect of the amount by which the Losses resulting from such final judgment exceed the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimsettlement.

Settlement of Third Party Claims. The Indemnifying In the event that the Indemnified Party shall not be liable for settles any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party, the Indemnifying Party shall be taken into account in have no further indemnification obligations under Section 10.2 with respect to such Third Party Claim; provided, however, that if the computation Indemnifying Party refuses to defend or otherwise handle such Third Party Claim and it is subsequently determined that the Indemnifying Party is or was obligated to defend or indemnify the Indemnified Party with respect to such Third Party Claim, then the Indemnifying Party shall remain obligated with respect to such settlement amount. If the Indemnifying Party controls the defense of any such Third Party Claim, the Cumulative Threshold Amount). In such connection, in Indemnifying Party shall obtain the event that (x) prior written consent of the Indemnified Party (which shall not be unreasonably withheld or if the Purchaser is the Indemnified Party, the Companydelayed) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of before entering into any settlement of a Third Party Claim (or ceasing to defend such Third Party Claim if, pursuant to or as a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party result of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding theretosettlement or cessation, injunctive or reasonably in advance of making such Settlement Offer, and other equitable relief shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either be imposed against the Indemnified Party or if such settlement or cessation does not expressly and unconditionally release the Indemnifying Party, the Parties will consult in good faith Indemnified Party from all liabilities and obligations with respect to any such Settlement Offer. The Indemnifying Third Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement OfferClaim, without prejudice. In the event that the Indemnifying Party proposes a Settlement Offer is received settlement to any Third Party Claim with respect to which the Indemnifying PartyParty is or was entitled to defend, but not which settlement is satisfactory to the Indemnified Partyparty instituting such Third Party Claim, is willing to accept, and the Indemnified Party may elect withholds its consent to continue such settlement, and thereafter a final judgment is entered against the defense Indemnifying Party or Indemnified Party pursuant to which Damages exceed the amount of the proposed settlement, then in such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited have no obligation to indemnify the lesser of: (i) Indemnified Party under this Article X against and in respect of the amount by which the Damages resulting from such final judgment exceed the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) settlement. Notwithstanding the Damages actually suffered by foregoing, in the Indemnified Party (or, if event of a breach or inaccuracy or alleged breach or inaccuracy in the Purchaser is representation of Seller contained in the Indemnified Party, the Companysecond sentence of Section 4.7(a), taking into account prior to initiating any Action to recover Damages with respect thereto from Seller, Buyer shall fully exhaust all recourse or remedies available to it to collect Damages from the final determination Title Company under the Title Policy, and the amount of the Third Party Claimany such recovery shall be applied to reduce any amount to which Buyer may be entitled to recover from Seller with respect to such breach or inaccuracy; provided that Buyer shall not be prevented from naming Seller as a defendant to protect Buyer's rights under applicable law.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, an Indemnifying Party shall not be liable for any Third enter into settlement of a Third-Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), except as provided in this Section 8.5(b). 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 any Indemnified Party and if provides, in customary form, for the Purchaser is unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third-Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten (10) days after its receipt of such notice, no amounts payable the Indemnified Party may continue to contest or defend such Third-Party Claim and in respect such event, the maximum liability of any the Indemnifying Party as to such Third-Party Claim shall not exceed the amount of such settlement or compromise offer. If the Indemnified Party fails to consent to such firm offer within such ten (10) day period and also fails to assume defense of a Third such Third-Party Claim, the Indemnifying Party may settle the Third-Party Claim made upon the terms set forth in such firm offer to settle such Third-Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 8.5(a), it shall not agree to any settlement without the prior written consent of the Indemnifying Party (which consent shall not be taken into account in the computation of the Cumulative Threshold Amountunreasonably withheld, conditioned or delayed). In such connectionFor the avoidance of doubt, in the event that (x) the Indemnified acceptance by an Indemnifying Party (of an offer to settle or if the Purchaser is an Indemnifying Party’s consent to a settlement offer requested by the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, does not establish an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable obligation by the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Partybe responsible for such matter; rather, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall must either consent to be limited responsible for all or a portion of such Losses, or be found by a court of competent jurisdiction in a final, non-appealable order, to be liable for the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimunderlying indemnification obligation.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not be liable for enter into settlement of any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from except as provided in this Section 8.06(b). If a Third Party or (y) the Indemnified Party (or if the Purchaser firm offer is the Indemnified Party, the Company) shall propose made to make to a Third Party, an offer of settlement of settle a Third Party Claim (without leading to liability or the *** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. UCYCLYD / HYPERION ASSET PURCHASE AGREEMENT creation of a “Settlement Offer”), financial or other obligation on the part of the Indemnified Party shall notify and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party of desires to accept and agree to such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding theretooffer, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party shall give written notice to assess that effect to the relative merits of the Settlement OfferIndemnified Party. At the reasonable request of either If the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not fails to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to acceptsuch firm offer within *** after its receipt of such notice, the Indemnified Party may elect continue to continue contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim at its own expenseupon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 8.06(a), in which case it shall not agree to any settlement without the liability written consent of the Indemnifying Party (which consent shall not be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Companyunreasonably withheld or delayed), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The Indemnifying Buyer agrees to notify Seller of any action by a third party which, in the opinion of Buyer, is reasonably likely to give rise to a claim for indemnification hereunder (a “Buyer Third Party Action”). Seller may, at its election and at its sole cost and expense, participate in the defense of a Buyer Third Party Action and employ counsel separate from the counsel employed by Buyer. To the extent that Seller shall acknowledge its obligations to indemnify Buyer for any Buyer Third Party Action, Seller shall have the right to conduct and control, through counsel of its own choosing, any Buyer Third Party Action, but Buyer may, at its election and at its sole cost and expense, participate in the defense of any such Buyer Third Party Action and employ counsel separate from the counsel employed by Seller, it being understood that Seller shall have acknowledged its obligation to indemnify Buyer and shall control such defense; provided, however, that if Seller shall fail to diligently defend any such Buyer Third Party Action, or is prohibited by a conflict of interest from defending such Buyer Third Party Action, then Buyer may, through counsel of its own choosing, defend such Buyer Third Party Action and settle such Buyer Third Party Action, and recover from Seller the amount of such settlement or of any judgment and the full costs and expenses of such defense. Buyer and Seller agree that they will not settle any Buyer Third Party Action without the consent of the other, which consent shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and unreasonably withheld. Buyer further agrees that if the Purchaser is the Indemnified Party, no amounts payable in respect of any such Seller wishes to enter into a settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any a Buyer Third Party Action on terms reasonably acceptable to Buyer, Buyer will cooperate in such Settlement Offer. The Indemnifying Party shall then determine in settlement, provided that Seller directly pays the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense full amount of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimsettlement.