Control of Defense; Exceptions, etc. Subject to Section ------------------------------------- 11.3(e), notwithstanding the provisions of paragraph 11.4: (i) the Indemnified Party will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose at its own expense (provided that the -------- Indemnifying Party will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense), (ii) the Indemnifying Party will not be entitled to assume control of the defense of such claim, and will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party, if:
(a) the Indemnified Party reasonably believes that an adverse determination of such proceeding could be detrimental to or injure the Indemnified Party's reputation or future business prospects,
(b) the Indemnified Party reasonably believes upon advice of legal counsel that there exists or could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such proceeding, or
(c) a court of competent jurisdiction rules that the Indemnifying Party has failed or is failing to prosecute or defend vigorously such claim; and
(d) the Indemnifying Party must obtain the prior written consent of the Indemnified Party (which the Indemnified Party will not unreasonably withhold or delay) prior to entering into any settlement of such claim or proceeding or ceasing to defend such claim or proceeding.
Control of Defense; Exceptions, etc. If the Indemnifying Party defends against the Proceeding, the Indemnified Party will be entitled to participate in the defense of such claim and to employ separate counsel of its choice for such purpose at its own expense, with the Indemnified Party obligated hereby to provide reasonable cooperation with the Indemnifying Party in the defense of claims or litigation, including by making employees, information and documentation reasonably available.
Control of Defense; Exceptions, etc. The Indemnified Party will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose at its own expense (provided that the Indemnifying Party will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense). The Indemnifying Party will not be entitled to assume control of the defense of such claim, and will pay the fees and expenses of legal counsel retained by the Indemnified Party, if:
(i) the Indemnified Party reasonably believes that an adverse determination of such Proceeding could be detrimental to or injure the Indemnified Party's reputation or future business prospects,
(ii) the Indemnified Party reasonably believes that there exists or could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnifying Party and the Indemnifying Party in such Proceeding, or
(iii) the Indemnifying Party has failed or is failing to prosecute or defend vigorously such claim.
Control of Defense; Exceptions, etc. With respect to any Proceeding, the indemnifying party, upon acknowledgement of its acceptance of its obligations to indemnify the indemnified party pursuant to the terms hereunder in connection with such Proceeding, shall be entitled to assume the defense of such action or claim with counsel reasonably satisfactory to the indemnified party. The indemnified party shall have the right to participate at its own expense in the defense of such asserted liability. The indemnifying party and the indemnified party each agree to reasonably cooperate with each other and their respective counsel in the defense against any such asserted liability and the settlement thereof. Notwithstanding the foregoing, if (A) the claim for indemnification is with respect to a criminal proceeding, criminal action, criminal indictment, criminal allegation or criminal investigation against the indemnified party, (B) the indemnifying party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the indemnifying party and the indemnified party, (C) the indemnifying party has failed or is failing to prosecute or defend such claim or shall have failed to engage counsel reasonably satisfactory to the indemnified party within a reasonable period of time, or (D) the indemnified party has been advised by counsel in writing that a reasonable likelihood exists that such claim will result in damages in excess of the amount of the Indemnification Cap, then (1) the indemnifying party shall not be entitled to assume the defense of any such claim or action, (2) the indemnified party shall have the right to conduct and control the defense of, and, subject to the consent of the indemnifying party (which consent shall not be unreasonably withheld), to compromise and settle such action or claim (subject to Section 7.1(c)(iii) below) with counsel reasonably acceptable to the indemnifying party, and in any such case, the indemnifying party shall have the right to participate at its own expense in the defense of such asserted liability.
Control of Defense; Exceptions, etc. Subject to Section 9.2(e), ------------------------------------- notwithstanding the provisions of Section
Control of Defense; Exceptions, etc. The Indemnitee will be entitled to participate in the defense of such claim and to employ separate counsel of its choice for such purpose at its own expense; provided that notwithstanding the foregoing, the Indemnitor will bear the fees and expenses of such separate counsel incurred prior to the date upon which the Indemnitor effectively assumes control of such defense. The Indemnitor will not be entitled to assume control of the defense of such claim, and will pay the fees and expenses of legal counsel retained by the Indemnitee, if:
(A) the Indemnitee reasonably believes that an adverse determination of such Proceeding could be detrimental to or injure the Indemnitee’s reputation or future business prospects;
(B) the Indemnitee reasonably believes, based upon the advice of counsel, that a conflict of interest exists or could arise which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnitee and the Indemnitor in such Proceeding; or
(C) a court of competent jurisdiction rules that the Indemnitor has failed or is failing to prosecute or defend such claim.
Control of Defense; Exceptions, etc. Notwithstanding anything to the contrary in this Section 11.5: (A) the Claimant will be entitled to participate in the defense of such claim or action and to employ lawyers of its choice for such purpose at its own expense; and (B) the Claimant will be entitled to assume control of the defense of such claim and the Shareholders Agent Committee will pay the reasonable fees and expenses of lawyers retained by the Claimant (excluding the fees and expenses of the Claimant’s lawyers before the date of such assumption of the defense), if: (1) the claim is subject to Section 11.2(b); (2) the claim or action involves any product manufactured or sold or other work performed before the Closing; (3) the Claimant reasonably believes that such claim or action could be reasonably expected to have a material adverse effect on the Claimant’s assets, business or reputation; (4) the Claimant reasonably believes that there exists or could arise a conflict of interest that, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Claimant and the Shareholders Agent Committee in such claim or action, and such conflict has not been timely waived; (5) the Shareholders Agent Committee either failed to give a Notice of Defense or has failed or is failing to prosecute or defend vigorously such claim or action; (6) criminal penalties or injunctive relief could be imposed on the Claimant in connection with such claim or action; or (7) the Shareholders Agent Committee fails or refuses to acknowledge that the Third Party Claim is a Covered Loss subject to the Aggregate Merger Consideration adjustment provisions contained in this Article XI.
Control of Defense; Exceptions, etc. Notwithstanding the provisions of Section 7.4(b): (i) the indemnified party will be entitled to participate in the defense of any claim and to employ counsel of its choice for such purpose at its own expense (provided that the indemnifying party will bear the reasonable fees and expenses of such separate counsel incurred prior to the date upon which the indemnifying party effectively assumes control of such defense), and (ii) the indemnifying party will not be entitled to assume control of the defense of any such claim, and will pay the reasonable fees and expenses of legal counsel retained by the indemnified party, if:
(A) the indemnified party reasonably believes that there exists or could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the indemnified party and the indemnifying party in such proceeding;
(B) a court of competent jurisdiction rules that the indemnifying party has failed or is failing to prosecute or defend vigorously such claim;
(C) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation or the claim seeks injunctive or other equitable relief against the indemnified party; or
(D) the indemnifying party and the indemnified party shall jointly control the defense of any claim (and the indemnifying party will pay the reasonable fees - 18 - and expenses of legal counsel retained by the indemnified party) in the event that the amount then in question in connection with such claim is greater than the Maximum Liability Amount (less any amount paid by the indemnifying party to that date).
Control of Defense; Exceptions, etc. Notwithstanding anything to the contrary in this Section 9.5: (i) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ lawyers of its choice for such purpose at its own expense; and (ii) the Indemnified Party shall be entitled to assume control of the defense of such Third Party Claim, and the Indemnifying Party shall pay the reasonable fees and expenses of lawyers retained by the Indemnified Party (excluding the fees and expenses of the Indemnified Party's lawyers prior to the date of such assumption of the defense), if:
(1) the Indemnified Party reasonably believes that there exists or could arise a conflict of interest that, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such Third Party Claim, and such conflict has not been timely waived, (2) the Indemnifying Party either failed to give a Notice of Defense or has failed or is failing to prosecute or defend vigorously such Third Party Claim, or (3) criminal penalties could be imposed on the Indemnified Party in connection with such Third Party Claim. The Party assuming control of the defense shall use reasonable commercial efforts to mitigate the Loss.
Control of Defense; Exceptions, etc. Without limiting the last sentence of Section 8.5(a)(ii)(4), if the Indemnifying Party properly assumes and is conducting the defense of a Third Party Claim, the Indemnified Party will be entitled to participate in the defense of such claim and to employ separate counsel of its choice for such purpose at its own expense (provided, that, (1) if the employment and expense thereof has been authorized by the Indemnifying Party in writing or (2) if the Indemnified Party reasonably determines that there is a conflict of interest between or among the Indemnified Party and the Indemnifying Party with respect to such Third Party Claim, the cost and expense of such counsel shall be borne by the Indemnifying Party).
