Common use of Conduct of Litigation Clause in Contracts

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such defense shall be conducted by counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. Notwithstanding the immediately preceding sentence, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying party shall elect not to assume the defense of such claim or action, such indemnifying party shall reimburse such indemnified party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, however, that no such claim or action shall be settled without the written consent of the indemnifying party.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, that the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such defense shall be conducted by counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. The indemnifying party shall provide the indemnified person with such additional information and opportunity for consultation as may reasonably be requested by it. The indemnified person shall render all assistance as the indemnifying party shall reasonably request in the defense of any such action. Notwithstanding the immediately preceding sentenceforegoing, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying party shall elect not to assume the defense of such claim or action, such indemnifying party shall reimburse such indemnified party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, however, that no such claim or action shall be settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed.

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

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. Each indemnifying party shall be entitled at its own expense to participate in conduct the defense of such any claim or action, or, if it shall elect, action to assume such defense, be indemnified hereunder in which event such defense shall be conducted by counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such actionindemnitees, and such the indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. Notwithstanding the immediately preceding sentence; provided, however, that if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and counsel for the indemnified party shall have been advised by counsel reasonably determines that there may be is a conflict between the positions of the indemnifying indemnified party and the indemnified indemnifying party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying party shall elect not to assume the defense of such claim or action, and such action is finally determined by a court of competent jurisdiction and such indemnifying party shall is determined to be liable for the indemnification obligations hereunder, then the indemnifying party will reimburse such indemnified party the indemnitees for the reasonable fees and expenses of any counsel retained by itthem in such action and/or in any action brought by the indemnified party to determine the indemnification obligations of the indemnifying party and all court costs, interest, and fees and disbursements as permitted by statute, and the indemnifying party shall be bound by the results obtained by the indemnified party in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such actionindemnitees; provided, however, that no such claim or action shall be settled without the written consent of the indemnifying party.

Conduct of Litigation. Each party indemnified In the event that the Buyer Parties become subject to an action, suit or proceeding pursuant to the Merger Agreement that (a) involves an allegation of a breach by Buyer Parties of an obligation under the provisions Merger Agreement or (b) involves a factual allegation that, if true, would constitute a breach by a Sponsor of an obligation under this AgreementAgreement or its Limited Guarantee (with respect to such Sponsor, upon receipt a “Related Claim”), then Topco shall deliver notice of written such Related Claim to such Sponsor reasonably promptly after becoming aware of such Related Claim; provided that the failure of Topco to give reasonably prompt notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time Related Claim shall not relieve release, waive or otherwise affect the indemnifying party of any of its Sponsor’s obligations hereunder with respect thereto except to the extent that the indemnifying party Sponsor is actually and materially prejudiced by as a result of such failure. Each indemnifying party Such Sponsor shall be entitled at its own expense have the right (but not the obligation), within 30 days after receipt of notice of such Related Claim, to elect to (i) in the case of a Related Claim primarily or exclusively related to such Sponsor, jointly with Topco control the defense of such Related Claim and (ii) in the case of any other Related Claim, participate in the defense of such Related Claim with Topco and any other Sponsor in respect of which such claim or actionis a Related Claim, orit being understood that with respect to any Related Claim, if it shall elect, to assume such defense, in Sponsor may employ counsel (which event such defense shall be conducted by counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to Topco), at its own expense, separate from the indemnified party against whom counsel employed by Topco. If such claim is asserted Sponsor exercises its right pursuant to the preceding sentence to control or who shall be the defendant participate in such actionRelated Claim, then the Sponsors shall reasonably cooperate with such Sponsor in the defense thereof (and such indemnified party in any event each Sponsor shall bear all fees and expenses of any additional counsel retained by it or them. Notwithstanding the immediately preceding sentence, if the named parties reasonably cooperate with Topco in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying party shall elect not to assume the defense of such claim or action, such indemnifying party shall reimburse such indemnified party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such actionRelated Claim); provided, however, that no such claim or action Sponsor shall be settled required to commence or participate in any legal action in connection therewith. Such Sponsor will not admit any liability with respect to, or settle, compromise or discharge, any such Related Claim without the Topco’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). Whether or not such Sponsor assumes the defense of a Related Claim, Topco shall not, and cause the indemnifying partyBuyer Parties not to, admit any liability with respect to, or settle, compromise or discharge, such Related Claim without such Sponsors’ prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party 24 from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such defense shall be conducted by counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. Notwithstanding the immediately preceding sentence, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying party shall elect not to assume the defense of such claim or action, such indemnifying party shall reimburse such indemnified party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, however, that no such claim or action shall be settled without the written consent of the indemnifying party.

Conduct of Litigation. Each Any party indemnified under the provisions of this Agreementagainst whom a claim is asserted, upon promptly after receipt of written notice of the commencement or threat of any such claim or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of which indemnification may be sought hereunder (the agreements contained in this Agreement"Indemnified Party"), shall promptly give written notice notify the other party (the "Indemnifying Party") in writing of such claim, or the commencement of such action, or threat thereof, . The failure of the Indemnified Party to so notify the party from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time Indemnifying Party shall not relieve the indemnifying party Indemnifying Party of its obligation to indemnify PI the Indemnified Party and shall not relieve the Indemnifying Party of any other liability which any of its obligations hereunder them may have to the Indemnified Party, except to the extent such failure to notify results in actual damage or prejudice to the indemnifying party is prejudiced by Indemnifying Party over and above any amount for which the Indemnifying Party would otherwise have been responsible under Article 5 of this Agreement. In the event of the commencement of any such failureaction as to which the Indemnified Party notifies the Indemnifying Party as aforesaid, the Indemnifying Party will be entitled to participate therein and to assume the defense thereof at its expense, provided that the Indemnifying Party promptly notify the Indemnified Party of its election so to assume the defense thereof. Each indemnifying party Nothing herein shall be construed so as to give any insurance carrier a right of subrogation for claims paid except as such right would otherwise exist in the absence of Article 5 of this Agreement. The Indemnified Party shall be entitled at its own expense to participate in the defense of any action and to be represented by counsel of its own selection. If the attorneys provided for the defense of the Indemnified Party by the Indemnifying Party withdraw from or are removed by court order from the Indemnified Party's representation, or if either equitable relief is being sought or the Indemnified Party is also joined as a party in any such claim or action, orthen the cost of counsel selected by the Indemnified Party shall be part of the Indemnified Party's cost, and the Indemnified Party shall have the right in all respects to conduct its own defense. If the Indemnified Party otherwise retains its own counsel, the cost thereof shall be for the account of the Indemnified Party. As to cases in which the Indemnifying Party has assumed and is providing the defense for the Indemnified Party, except with respect to causes of action alleged separately against the Indemnified Party, the handling and decisions in respect of which shall be under the sole and exclusive control of the Indemnified Party, the control of such defense and the right to reach a settlement in such action shall remain vested in the Indemnifying Party. As to any action in which the Indemnified Party is not represented by counsel of its own selection, the Indemnifying Party shall provide to the Indemnified Party reasonable information (including reasonable advance notice of all proceedings in respect thereto) regarding the conduct of the action and the right to attend all proceedings and depositions in respect thereto through its agents and attorneys, and the right to discuss the action with counsel for the Indemnifying Party, and the Indemnifying Party will consider the Indemnified Party's view with respect to the conduct of the action. Except as provided in the first sentence of this paragraph above, the Indemnifying Party shall at all times be entitled to make all decisions regarding the action, including settlements; provided, that, if it shall electthe Indemnified Party objects to a settlement which has otherwise been fully agreed to but for this provision, to assume the Indemnified Party may prohibit the Indemnifying Party from making such defensesettlement in the Indemnified Party's behalf, in which event such defense shall be conducted by counsel chosen by such indemnifying partycase, which counsel at the election of the Indemnifying Party, the Indemnifying Party may be any counsel reasonably satisfactory pay to the indemnified party against whom Indemnified Party the proposed cost to them of such claim is asserted or who shall be the defendant settlement, in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. Notwithstanding the immediately preceding sentence, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying partiescash, and the indemnified party Indemnified Party shall have been advised by counsel that there may thereafter be a conflict between the positions of the indemnifying party responsible for such litigation matter and the indemnified party Indemnifying Party thereafter has no further indemnification responsibility with respect to such matter. If, within twenty (20) days after receipt by the Indemnifying Party of notice from the Indemnified Party to the Indemnifying Party as to commencement of any action in conducting respect of which indemnification is sought hereunder, the Indemnifying Party has not notified the Indemnified Party that the Indemnifying Party assumes the defense of such action or that there are legal defenses available without reservation and have actually assumed such defense, then the Indemnified Party shall have the right to defend such indemnified party different from or in addition action and totally to those available control such defense, and to proceed immediately against the Indemnifying Party to enforce all indemnification rights hereunder (including but not limited to the indemnifying partycosts of defense, then counsel for as the indemnified party shall same may be entitledincurred), if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is Indemnifying Party shall thereafter not be entitled to indemnification hereunder for the Indemnified Amounts giving rise to participate in such action. If the indemnifying party shall elect not to assume the defense of such claim or action, such indemnifying party shall reimburse such indemnified party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party in respect of such claim or action if it is determined by agreement The indemnification obligations of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise Indemnifying Party with respect to such action; providedaction shall, however, in no way be diminished by virtue of the foregoing, and the fact that no the Indemnified Party shall have defended, settled, compromised or otherwise dealt with such claim or action shall not, in any circumstances, be settled without the written consent deemed to constitute any waiver, release, or exon- eration of the indemnifying partyIndemnifying Party from its indemnification obligations, regardless of the outcome of such action.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, that the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such defense shall be conducted by counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. The indemnifying party shall provide the indemnified person with such additional information and opportunity for consultation as may reasonably be requested by it. The indemnified party shall render all assistance as the indemnifying party shall reasonably request in the defense of any such action. Notwithstanding the immediately preceding sentenceforegoing, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided that the indemnifying party shall be obligated to pay for only one counsel for all indemnified parties. If the indemnifying party shall elect not to assume the defense of such claim or action, such indemnifying party shall reimburse such indemnified party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, however, that no such claim or action shall be settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such defense shall be 26 conducted by counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. Notwithstanding the immediately preceding sentence, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying party shall elect not to assume the defense of such claim or action, such indemnifying party shall reimburse such indemnified party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; , provided, however, that no such claim or action shall be settled without the written consent of the indemnifying party.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it, it in respect of the agreements contained in matters for which it is entitled to indemnity under this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, hereunder (but the failure or delay of such party to provide give such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder obligation to provide indemnification hereunder, except to the extent the indemnifying party is prejudiced by such failurefailure or delay). Each In the event such claim involves a claim by a third party against the indemnified party, the indemnifying party may elect (by written notice delivered to the indemnified party) to undertake, conduct and control, through counsel of its own choosing and reasonably acceptable to the indemnified party and at its own expense, the settlement or defense thereof, and if it shall so elect to undertake the defense thereof, the indemnified party shall cooperate with it in connection therewith, provided that the indemnified party may participate (subject to the indemnifying party's control) in such settlement or defense through counsel chosen by it, and provided further that the fees and expenses of such indemnified party's counsel (from and after the date of such election) shall be borne by the indemnified party. If the indemnifying party does not elect to undertake the defense of such as provided above, the indemnified party shall undertake and control the defense thereof and the indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such defense shall be conducted by counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear liable for all fees and expenses of any additional counsel retained by it or themsuch defense, including the fees and expenses of such indemnified party's counsel. Notwithstanding the immediately preceding sentence, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the The indemnifying party and may, without the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests consent of the indemnified party, at settle or compromise or consent to the expense entry of any judgment in any action involving only the indemnifying party, if it is determined payment of money by agreement of the indemnifying party and which does not involve any undertaking which would affect the operation of the Business by the Purchaser after the Closing Date, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the indemnified party or by of a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying party shall elect not to assume the defense of such claim or action, such indemnifying party shall reimburse such indemnified party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party written release from all liability in respect of such claim or action if it is determined by agreement of action, which written release shall be reasonably satisfactory in form and substance to counsel for the indemnified party. The indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; providedshall not, however, that no such claim or action shall be settled without the written consent of the indemnified party (which consent shall not be unreasonably withheld), settle or compromise any action involving relief other than the payment of money by the indemnifying partyparty or that does not provide a written release of the indemnified party from all liability with respect thereto. The indemnified and indemnifying party shall each cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Article XII.

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; providedPROVIDED, howeverHOWEVER, that the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such defense shall be conducted by counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. The indemnifying party shall provide the indemnified person with such additional information and opportunity for consultation as may reasonably be requested by it. The indemnified person shall render all assistance as the indemnifying party shall reasonably request in the defense of any such action. Notwithstanding the immediately preceding sentenceforegoing, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying party shall elect not to assume the defense of such claim or action, such indemnifying party shall reimburse such indemnified party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, however, that no such claim or action shall be settled without the written consent of the indemnifying party.the

Conduct of Litigation. Each party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. Each indemnifying party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such defense shall be conducted by counsel chosen by such indemnifying party, which unless the indemnified party reasonably objects to the use of such counsel, in such event counsel may be any counsel reasonably satisfactory to the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional counsel retained by it or them. Notwithstanding the immediately preceding sentence; provided, however, that if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying parties, and the indemnified party shall have been advised by counsel reasonably determines that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of such action or that there are legal defenses available to such indemnified party different from or in addition to those available to the indemnifying party, then counsel for the indemnified party shall be entitled, if the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified party, at the expense of the indemnifying party, if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying party shall elect not to assume the defense of such claim or action, such indemnifying party shall will reimburse such indemnified party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party in respect of such claim or action if it is determined by agreement of the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such actionparty; provided, however, that no such claim or action shall be settled without the written consent of the indemnifying party.

Conduct of Litigation. Each (a) An indemnified party indemnified under hereunder shall promptly give notice to the provisions of this Agreement, upon receipt of written notice indemnifying party after obtaining knowledge of any claim or other item against the service indemnified party as to which recovery may be sought against the indemnifying party because of the covenants of indemnity set forth above. If such indemnity shall arise from the claim of a summons third party, the indemnified party shall permit the indemnifying party to assume the defense of any such claim or other initial legal process upon it in any action instituted against it, in respect litigation resulting from such claim. If the indemnifying party assumes the defense of the agreements contained claim, matter or litigation at issue, each indemnified party shall have the right to employ separate counsel in this Agreement, shall promptly give written notice of such claim, matter or the commencement of such action, or threat thereof, to the party from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure. Each indemnifying party shall be entitled at its own expense litigation and to participate in the defense of such claim or actionconduct thereof, or, if it shall elect, to assume such defense, in which event such defense shall be conducted by counsel chosen by such indemnifying party, which counsel may be any counsel reasonably satisfactory to but the indemnified party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party shall bear all fees and expenses of any additional such counsel retained shall not be at the expense of the indemnifying party unless (i) the indemnifying party shall have failed, within a reasonable time after having been notified by it the indemnified party of the existence of such claim, matter or them. Notwithstanding litigation as provided in the immediately preceding sentence, if to assume the defense of such claim, (ii) the employment of such counsel has been specifically authorized in writing by the indemnifying party, (iii) the named parties in to any such action (including any impleaded parties) include the both such indemnified party and the indemnifying parties, party and the such indemnified party shall have been advised in writing by such counsel that there may be a conflict conflicting interests between the positions of the indemnifying party and the indemnified party in conducting the legal defense thereof and, in such event, legal counsel selected by the indemnifying party shall be required to cooperate fully with legal counsel selected by the indemnified party relating to such defense, or (iv) equitable relief is being sought against any of the indemnified parties. If the indemnifying party assumes the defense of the particular claim or litigation, neither the indemnifying party or the indemnified party shall, in the defense of such action claim or that there are legal defenses available litigation, counsel to such indemnified party different from entry of any judgment or in addition to those available to enter into any settlement, except with the written consent of the other party, which consent shall not be unreasonably withheld. In addition, the indemnifying party, then counsel for the indemnified party shall be entitled, if not enter into any settlement of any litigated claim (except with the indemnified party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests written consent of the indemnified party, at ) which does not include as an unconditional term thereof the expense giving by the claimant or the plaintiff to the indemnified party a full release from all liability in respect of the indemnifying party, if it is determined such claim or litigation. Failure by agreement of the indemnifying party and to notify the indemnified party of its election to defend any such claim or litigation by a court third party within fifteen (15) days after notice thereof shall have been given to the indemnifying party shall be deemed a waiver by the indemnifying party of competent jurisdiction that the indemnified party is entitled its right to indemnification hereunder for the Indemnified Amounts giving rise to defend such actionclaim or litigation. If the indemnifying party shall elect not to assume the defense of any such claim by a third party or litigation resulting therefrom, the indemnified party may defend against such claim or action, litigation in such indemnifying party shall reimburse such indemnified party for the reasonable fees manner as it may deem appropriate and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party in respect of may settle such claim or action if litigation on such terms as it is determined by agreement of may deem appropriate without prejudicing its rights against the indemnifying party and the indemnified party or by a court of competent jurisdiction that the indemnified party is entitled to indemnification hereunder provided for the Indemnified Amounts giving rise to such action; provided, however, that no such claim or action herein. Nothing contained herein shall be settled without construed to give any insurance carrier a right of subrogation for claims paid except as such right would otherwise exist in the written consent absence of this Article 5. Further, for purposes of this Section, notification from the Internal Revenue Service of an intended audit of the indemnifying partyCompany's tax returns for any period prior to Closing Date shall be considered notice of a claim as to which Purchaser shall promptly notify the Shareholders' Representative referenced in Section 7.12, acting on behalf of the Shareholders. The Shareholders shall pay for and have complete control of and discretion in defending and/or settling the audit, and all liabilities incurred by way of defense and settlement of the audit and claims arising thereunder shall be paid by the Shareholders.

Conduct of Litigation. Each party Party indemnified under the provisions of this Agreement, upon receipt of written notice of any claim claim, or the service of a summons or other initial legal process upon it in any action instituted against it, in respect of the agreements contained in this Agreement, shall promptly give written notice of such claim, or the commencement of such action, or threat thereof, thereof to the party Party from whom indemnity shall be sought hereunder; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party Party of any of its obligations hereunder except to the extent the indemnifying party Party is prejudiced by such failure. Each The indemnifying party Party shall be entitled at its own expense to participate in the defense of such claim or action, or, if it shall elect, to assume such defense, in which event such defense shall be conducted by counsel chosen by such indemnifying partyParty, which counsel may be any counsel reasonably satisfactory to the indemnified party Party against whom such claim is asserted or who shall be the defendant in such action, and such indemnified party Party shall bear all fees and expenses of any additional counsel retained by it or themit. Notwithstanding the immediately preceding sentence, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying partiesParties, and the indemnified party Party shall have been advised by counsel that there may be a conflict between the positions of the indemnifying party Party and the indemnified party Party in conducting the defense of such action or that there are legal defenses available to such indemnified party Party different from or in addition to those available to the indemnifying partyParty, then counsel for the indemnified party Party shall be entitled, if the indemnified party Party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified partyParty, at the expense of the indemnifying partyParty, if it is determined by agreement of the indemnifying party Party and the indemnified party Party or by a court of competent jurisdiction that the indemnified party Party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action. If the indemnifying party Party shall elect not to assume the defense of such claim or action, such indemnifying party Party shall reimburse such indemnified party Party for the reasonable fees and expenses of any counsel retained by it, and shall be bound by the results obtained by the indemnified party Party in respect of such claim or action if it is determined by agreement of the indemnifying party Party and the indemnified party Party or by a court of competent jurisdiction that the indemnified party Party is entitled to indemnification hereunder for the Indemnified Amounts giving rise to such action; provided, however, that no such claim or action shall be settled without the written consent of the indemnifying partyParty.