Common use of Defense by Indemnifying Party Clause in Contracts

Defense by Indemnifying Party. (a) If a claim or demand is asserted by a third Person against an Indemnified Person (a "Third Party Claim"), the Indemnifying Party shall, except as otherwise provided in Section 6.3.4(b), have the right, but not the obligation, exercisable by notice to the Indemnified Party within 10 days of the date of the Notice of Claim concerning the commencement or assertion of any Third Party Claim, to assume the defense of such Third Party Claim. (b) The Seller Indemnifying Parties shall not have such right or opportunity to assume and control the defense of any such Third Party Claim, but shall have the right, at their costs, to participate in the defense of such Third Party Claim and the obligation to pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3) if (i) such Third Party Claim relates to, or arises in connection with, any criminal proceeding, indictment, investigation or civil action by any Governmental Entity other than inquiries or audits in the Ordinary Course of Business, or (ii) such Third Party Claim seeks an injunction or other equitable relief against the Buyer Indemnified Party. (c) If the Buyer Indemnified Party assumes and controls the defense of a Third Party Claim pursuant to Section 6.3.4(b), (i) the Buyer Indemnified Party shall permit the Seller Indemnifying Parties to participate in the defense of such claim, to have reasonable access to all documents and personnel involved in such claim and to discuss its views and positions with the Buyer Indemnified Party, (ii) the Buyer Indemnified Party shall defend the Seller Indemnifying Party against the matter with counsel, which choice of counsel is subject to the reasonable satisfaction of Sellers' Representative; (iii) the Seller Indemnifying Parties may retain separate co-counsel at their sole cost and expense; (iv) the Seller Indemnifying Parties shall not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Buyer Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed; and (v) the Buyer Indemnified Party shall not consent to the entry of any judgment with respect to the matter, or enter into any settlement without the consent of the Sellers' Representative, which consent shall not be unreasonably withheld, conditioned or delayed. The Buyer Indemnified Party agrees, in connection with any such Third Party Claim, to work cooperatively and in good faith with the Seller Indemnifying Parties. (d) If the Indemnifying Party is entitled under this Section 6.3.4 to assume the defense of the respective Third Party Claim and gives such notice of intent to defend, (i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel compensated by and chosen by Indemnifying Party, which choice of counsel is subject to the reasonable satisfaction of Indemnified Party; (ii) the Indemnified Party may retain separate co-counsel at the sole cost and expense of Indemnified Party; (iii) the Indemnified Party shall not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Indemnifying Party; and (iv) the Indemnifying Party shall not consent to the entry of any judgment with respect to the matter, or enter into any settlement that does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed if such settlement only requires the payment by one or more Indemnifying Parties of a monetary amount, does not include a statement as to admission of fault, culpability or failure to act by or on behalf of such Indemnified Party. (e) If a Third Party Claim is made and no Indemnifying Party notifies the Indemnified Party within 10 Business Days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, the Indemnified Party shall defend against or enter into any settlement with respect to the matter and the Seller Indemnifying Parties shall have the obligation to pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3). Notwithstanding the foregoing, the Indemnified Party shall not settle such Third Party Claim without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.

Defense by Indemnifying Party. (a) If a claim or demand is asserted by a third Person against Subject to Section 7.5.3.2, if an Indemnified Person (Party gives notice to the Indemnifying Party pursuant to Section 7.5.1 of the assertion of a "Third Third-Party Claim"), the Indemnifying Party shallshall be entitled to participate in the defense of such Third-Party Claim and, except as otherwise provided to the extent that it wishes (unless (i) the Indemnifying Party is also a Person against whom the Third-Party Claim is made and the Indemnified Party determines in Section 6.3.4(b), have good faith that joint representation would be inappropriate or (ii) the right, but not the obligation, exercisable by notice Indemnifying Party fails to provide reasonable assurance to the Indemnified Party within 10 days of the date of the Notice of its financial capacity to defend such Third-Party Claim concerning the commencement or assertion of any Third and provide indemnification with respect to such Third-Party Claim), to assume the defense of such Third Third-Party Claim. (b) The Seller Claim with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Parties shall not have such right or opportunity Party to the Indemnified Party of its election to assume and control the defense of any such Third Party Claim, but shall have the right, at their costs, to participate in the defense of such Third Third-Party Claim and Claim, the obligation Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to pay the reasonable Indemnified Party under this Article VII for any fees and of other counsel or any other expenses with respect to the defense of counsel retained such Third-Party Claim, in each case subsequently incurred by the Buyer Indemnified Party in respect connection with the defense of such Third-Party Claim, other than reasonable costs incurred to provide any support requested by the Indemnifying Party. The Indemnifying Party shall have ninety (90) days after notice is given pursuant to Section 7.5.3.1 of the Indemnifying Party’s election to assume defense of the Third Party Claim to change its decision (which obligation shall constitute Losses subject to and return the terms and conditions defense of this Section 6.3) if (i) such the Third Party Claim relates to, or arises in connection with, any criminal proceeding, indictment, investigation or civil action by any Governmental Entity other than inquiries or audits in to the Ordinary Course Indemnified Party) regarding the defense of Business, or (ii) such the Third Party Claim seeks an injunction or other equitable relief against if and only if the Buyer Indemnifying Party has not done anything to prejudice the Indemnified Party. (c) ’s position or prevent the Indemnified Party from taking over the defense of the Third Party Claim. If the Buyer Indemnified Indemnifying Party assumes the defense of a Third-Party Claim, and controls provided the Indemnifying Party has not returned the defense of a Third Party Claim pursuant to Section 6.3.4(b)the Indemnified Party in accordance with the terms of the immediately preceding sentence, then (i) such assumption will conclusively establish for purposes of this Agreement that the Buyer Indemnified claims made in that Third-Party shall permit Claim are within the Seller Indemnifying Parties scope of and subject to participate in the defense of such claimindemnification, to have reasonable access to all documents and personnel involved in such claim and to discuss its views and positions with the Buyer Indemnified Party, (ii) no compromise or settlement of such Third-Party Claims may be effected by the Buyer Indemnified Party shall defend the Seller Indemnifying Party against without the matter with counsel, which choice Indemnified Party’s Consent unless (A) there is no finding or admission of counsel is subject to any violation of Law or any violation of the reasonable satisfaction rights of Sellers' Representativeany Person; (iiiB) the Seller sole relief provided is monetary damages that are paid in full by the Indemnifying Parties may retain separate co-counsel at their sole cost and expense; Party (iv) none of which monetary damages shall be paid or reimbursed from the Seller Indemnifying Parties shall not consent to the entry of any judgment or enter into any settlement with respect to the matter Indemnity Escrow Amount without the consent of the Buyer Indemnified PartyParent’s consent, which consent shall not be unreasonably withheld, conditioned withheld or delayed); and (v) the Buyer Indemnified Party shall not consent to the entry of any judgment with respect to the matter, or enter into any settlement without the consent of the Sellers' Representative, which consent shall not be unreasonably withheld, conditioned or delayed. The Buyer Indemnified Party agrees, in connection with any such Third Party Claim, to work cooperatively and in good faith with the Seller Indemnifying Parties. (d) If the Indemnifying Party is entitled under this Section 6.3.4 to assume the defense of the respective Third Party Claim and gives such notice of intent to defend, (i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel compensated by and chosen by Indemnifying Party, which choice of counsel is subject to the reasonable satisfaction of Indemnified Party; (ii) the Indemnified Party may retain separate co-counsel at the sole cost and expense of Indemnified Party; (iiiC) the Indemnified Party shall not consent to the entry of have no liability (including any judgment continuing obligation or enter into any settlement restriction) with respect to any compromise or settlement of such Third-Party Claims effected without its prior written consent. Further, any fees of counsel or other out of pocket expenses (other than amounts paid to third parties, with Parent’s prior written consent) incurred by any Stockholders or the matter without the consent of the Indemnifying Party; and Stockholders’ Agent (iv) either as the Indemnifying Party shall not consent to the entry of any judgment with respect to the matter, or enter into any settlement that does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, without the consent of as the Indemnified Party, which consent shall ) may not be unreasonably withheld, conditioned or delayed if such settlement only requires reimbursed from the payment by one or more Indemnifying Parties of a monetary amount, does not include a statement as to admission of fault, culpability or failure to act by or on behalf of such Indemnified Party. (e) If a Third Party Claim is made and no Indemnifying Party notifies the Indemnified Party within 10 Business Days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, the Indemnified Party shall defend against or enter into any settlement with respect Indemnity Escrow Amount except to the matter and the Seller Indemnifying Parties shall have the obligation to pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party limited extent expressly provided in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3). Notwithstanding the foregoing, the Indemnified Party shall not settle such Third Party Claim without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayedSections 1.8.

Defense by Indemnifying Party. (a) If a claim or demand is asserted by a third Person against an Indemnified Person (a "“Third Party Claim"”), the Indemnifying Party shall, except as otherwise provided in Section 6.3.4(b), have the right, but not the obligation, exercisable by notice to the Indemnified Party within 10 days of the date of the Notice of Claim concerning the commencement or assertion of any Third Party Claim, to assume the defense of such Third Party Claim. (b) The Seller Indemnifying Parties shall not have such right or opportunity to assume and control the defense of any such Third Party Claim, but shall have the right, at their costs, right to participate in the defense of such Third Party Claim and the obligation to shall pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3) if (i) subject to Section 6.7.2, such Third Party Claim relates to, or arises in connection with, any criminal proceeding, indictment, investigation or civil action by any Governmental Entity other than inquiries or audits in the Ordinary Course of Business, or (ii) such Third Party Claim seeks an injunction or other equitable relief against the Buyer Indemnified Party, or (iii) the Buyer Indemnifying Parties fail to exercise reasonable commercial effort in conducting the defense of such Third Party Claim. (c) If the Buyer Indemnified Party assumes and controls the defense of a Third Party Claim pursuant to Section 6.3.4(b), the Buyer Indemnified Party shall conduct the defense thereof as follows: (i) the Buyer Indemnified Party shall permit the Seller Indemnifying Parties to participate in the defense of such claim, to have reasonable access to all documents and personnel involved in such claim and to discuss its views and positions with the Buyer Indemnified Party, (ii) the Buyer Indemnified Party shall will defend the Seller Indemnifying Party against the matter with counsel, counsel which choice of counsel is subject to the reasonable satisfaction of Sellers' , Representative; (iii) the Seller Indemnifying Parties may retain separate co-counsel at their the sole cost and expenseexpense of Seller Indemnifying Party; (iv) the Seller Indemnifying Parties shall will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Buyer Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed; and (v) the Buyer Indemnified Party shall will not consent to the entry of any judgment with respect to the matter, or enter into any settlement without the consent of the Sellers' ’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed. The Buyer Indemnified Party agrees, in connection with any such Third Party Claim, to work cooperatively and in good faith with the Seller Indemnifying Parties. (d) If the Indemnifying Party is entitled under this Section 6.3.4 to assume the defense of the respective Third Party Claim and gives such notice of intent to defend, the Indemnifying Party shall assume the defense thereof as follows: (i) the Indemnifying Party shall will defend the Indemnified Party against the matter with counsel compensated by and chosen by Indemnifying Party, which choice of counsel is subject to the reasonable satisfaction of Indemnified Party; (ii) the Indemnified Party may retain separate co-counsel at the sole cost and expense of Indemnified Party; (iii) the Indemnified Party shall will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Indemnifying Party; and (iv) the Indemnifying Party shall will not consent to the entry of any judgment with respect to the matter, or enter into any settlement that does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed if such settlement only requires the payment by one or more Indemnifying Parties of a monetary amount, does not include a statement as to admission of fault, culpability or failure to act by or on behalf of such Indemnified Party, and the settlement would not be detrimental to the Indemnified Party’s reputation or continuing business. (e) If a Third Party Claim is made and no Indemnifying Party notifies the Indemnified Party within 10 Business Days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, the Indemnified Party shall defend against or enter into any settlement with respect to the matter and the Seller Indemnifying Parties shall have the obligation to pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3)matter. Notwithstanding the foregoing, the Indemnified Party shall not settle such Third Party Claim without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned. (f) The Parties agree that Seller Indemnifying Parties are assuming the defense of the MEI Litigation pursuant to this Section 6.3.4.

Defense by Indemnifying Party. (a) 5.4.1 If a claim or demand is asserted by a third Person against an Indemnified Person Party (a "“Third Party Claim"”), the Indemnifying Party shall, except as otherwise provided in Section 6.3.4(b)5.4.2, have the right, but not the obligation, exercisable by notice to the Indemnified Party within 10 days of the date of the Notice of Claim concerning the commencement or assertion of any Third Party Claim, to assume the defense of such Third Party Claim. (b) 5.4.2 The Seller Indemnifying Parties shall not have such right or opportunity to assume and control the defense of any such Third Party Claim, but shall have the right, at their costs, right to participate in the defense of such Third Party Claim and the obligation to shall pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3) Claim, if (i) such Third Party Claim relates to, or arises in connection with, any criminal proceeding, civil action, indictment, or investigation or civil action by any Governmental Entity other than inquiries or audits in the Ordinary Course ordinary course of Businessbusiness, or (ii) the Buyer Indemnified Party reasonably believes that an adverse determination with respect to such Third Party Claim would be detrimental to the Buyer Indemnified Party’s reputation or continuing business interests, (iii) such Third Party Claim seeks an injunction or other equitable relief against the Buyer Indemnified Party, (iv) the Seller fails to conduct the defense of such Third Party Claim actively and diligently, or (v) the Buyer Indemnified Party determines that the Seller will not be able to adequately defend against such Third Party Claim. (c) 5.4.3 If the Buyer Indemnified Party assumes and controls the defense of a Third Party Claim pursuant to Section 6.3.4(b)5.4.2, (i) the Buyer Indemnified Party shall permit the Seller Indemnifying Parties to participate in the defense of such claim, to have reasonable access to all documents and personnel involved in such claim and to discuss its views and positions with the Buyer Indemnified Party, (ii) the Buyer Indemnified Party shall defend the Seller Indemnifying Party against the matter with counsel, which choice of counsel is subject to the reasonable satisfaction of Sellers' Representative; (iii) the Seller Indemnifying Parties may retain separate co-counsel at their sole cost and expense; (iv) the Seller Indemnifying Parties shall not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Buyer Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed; and (v) the Buyer Indemnified Party shall not consent to the entry of any judgment with respect to the matter, or enter into any settlement without the consent of the Sellers' Representative, which consent shall not be unreasonably withheld, conditioned or delayed. The Buyer Indemnified Party agrees, in connection with any such Third Party Claim, to work cooperatively and in good faith with the Seller Indemnifying Partiesconsistent with the best interest of the Buyer Indemnified Party. (d) 5.4.4 If the Indemnifying Party is entitled under this Section 6.3.4 5.4 to assume the defense of the respective Third Party Claim and gives such notice of intent to defend, the Indemnifying Party shall assume the defense thereof as follows: (i) the Indemnifying Party shall will defend the Indemnified Party against the matter with counsel compensated by and chosen by Indemnifying Party, which choice of counsel is subject to the reasonable satisfaction of Indemnified Party; (ii) the Indemnified Party may retain separate co-counsel at the sole cost and expense of Indemnified Party; (iii) the Indemnified Party shall will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Indemnifying Party; and (iv) the Indemnifying Party shall will not consent to the entry of any judgment with respect to the matter, or enter into any settlement that does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed if such settlement only requires the payment by one or more Indemnifying Parties of a monetary amount, does not include a statement as to admission of fault, culpability or failure to act by or on behalf of such Indemnified Party, and the Indemnified Party could not reasonably believe that the settlement would be detrimental to the Indemnified Party’s reputation or continuing business. (e) 5.4.5 If a Third Party Claim is made and no Indemnifying Party notifies the Indemnified Party within 10 Business Days days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, the Indemnified Party shall defend against against, or enter into any settlement with respect to the matter and the Seller Indemnifying Parties shall have the obligation to pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3)matter. Notwithstanding the foregoing, the The Indemnified Party shall not settle such Third Party Claim without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed.

Defense by Indemnifying Party. (a) If a claim or demand is asserted by a third Person against an Indemnified Person (a "Third Party Claim"), the Indemnifying Party shall, except as otherwise provided in Section 6.3.4(b), have the right, but not the obligation, exercisable by notice to the Indemnified Party within 10 days of the date of the Notice of Claim concerning the commencement or assertion of any Third Party Claim, to assume the defense of such Third Party Claim. (b) The Seller Buyer Indemnifying Parties shall not have such right or opportunity to assume and control the defense of any such Third Party Claim, but shall have the right, at their costs, right to participate in the defense of such Third Party Claim and the obligation to shall pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3) if (i) such Third Party Claim relates to, or arises in connection with, any criminal proceeding, civil action, indictment, or investigation or civil action by any Governmental Entity other than inquiries or audits in the Ordinary Course ordinary course of Businessbusiness, or (ii) such Third Party Claim alleges Losses in excess of the then available funds held in Escrow (after deducting the full amount of all pending Indemnification Claims), (iii) the Buyer Indemnified Party reasonably believes that an adverse determination with respect to such Third Party Claim would be detrimental to the Buyer Indemnified Party's reputation or continuing business interests, (iv) such Third Party Claim seeks an injunction or other equitable relief against the Buyer Indemnified Party. (c) If the Buyer Indemnified Party assumes and controls the defense of a Third Party Claim pursuant to Section 6.3.4(b), (i) the Buyer Indemnified Party shall permit the Seller Indemnifying Parties to participate in the defense of such claim, to have reasonable access to all documents and personnel involved in such claim and to discuss its views and positions with the Buyer Indemnified Party, (ii) the Buyer Indemnified Party shall defend the Seller Indemnifying Party against the matter with counsel, which choice of counsel is subject to the reasonable satisfaction of Sellers' Representative; (iii) the Seller Indemnifying Parties may retain separate co-counsel at their sole cost and expense; (iv) the Seller Indemnifying Parties shall not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Buyer Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed; and (v) the Buyer Indemnified Party shall not consent Indemnifying Parties fail to the entry of any judgment with respect to the matter, or enter into any settlement without the consent of the Sellers' Representative, which consent shall not be unreasonably withheld, conditioned or delayed. The Buyer Indemnified Party agrees, in connection with any such Third Party Claim, to work cooperatively and in good faith with the Seller Indemnifying Parties. (d) If the Indemnifying Party is entitled under this Section 6.3.4 to assume conduct the defense of the respective Third Party Claim and gives such notice of intent to defend, (i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel compensated by and chosen by Indemnifying Party, which choice of counsel is subject to the reasonable satisfaction of Indemnified Party; (ii) the Indemnified Party may retain separate co-counsel at the sole cost and expense of Indemnified Party; (iii) the Indemnified Party shall not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Indemnifying Party; and (iv) the Indemnifying Party shall not consent to the entry of any judgment with respect to the matter, or enter into any settlement that does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed if such settlement only requires the payment by one or more Indemnifying Parties of a monetary amount, does not include a statement as to admission of fault, culpability or failure to act by or on behalf of such Indemnified Party. (e) If a Third Party Claim is made and no Indemnifying Party notifies the Indemnified Party within 10 Business Days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, the Indemnified Party shall defend against or enter into any settlement with respect to the matter and the Seller Indemnifying Parties shall have the obligation to pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3). Notwithstanding the foregoing, the Indemnified Party shall not settle such Third Party Claim without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayedactively and diligently.

Defense by Indemnifying Party. (a) If a claim or demand is asserted by a third Person party against an Indemnified Person which involves or appears reasonably likely to involve an Indemnification Claim (a "“Third Party Claim"”), the Indemnifying Party shall, except as otherwise provided in Section 6.3.4(b), shall have the right, but not the obligation, exercisable by notice to the Indemnified Party within 10 days of the date of the Notice of Claim concerning the commencement or assertion of any a Third Party Claim, to assume the defense of such Third Party Claim. (b) The Seller Claim provided, however, that the Parent Indemnifying Parties shall not have such right or opportunity to assume and control the defense of any such Third Party Claim, but shall have the right, at their costs, right to participate in the defense of such Third Party Claim and the obligation to shall pay the reasonable fees and expenses of counsel retained by the Buyer Parent Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3) if (ia) such Third Party Claim relates to, or arises in connection with, any criminal proceeding, civil action, indictment, or investigation or civil action by any Governmental Entity other than inquiries or audits in the Ordinary Course ordinary course of Businessbusiness, (b) such Third Party Claim alleges Losses in excess of the then available funds held in Escrow (after deducting the full amount of all pending Indemnification Claims), (c) the Parent Indemnified Party reasonably believes that an adverse determination with respect to such Third Party Claim would be detrimental to the Parent Indemnified Party’s reputation or continuing business interests, (iid) such Third Party Claim seeks an injunction or other equitable relief against the Buyer Parent Indemnified Party. , or (ce) the Parent Indemnifying Parties fail to conduct the defense of such Third Party Claim actively and diligently. The applicable Parent Indemnified Party agrees to defend any such Third Party Claim consistent with the best interest of such Parent Indemnified Party, subject to Section 6.3.13. If the Buyer Parent Indemnified Party assumes and controls the defense of a Third Party Claim pursuant to this Section 6.3.4(b)6.3.4, (i) the Buyer Parent Indemnified Party shall permit the Seller Parent Indemnifying Parties to participate in the defense of such claim, to have reasonable access to all documents and personnel involved in such claim and to discuss its views and positions with the Buyer Parent Indemnified Party, (ii) the Buyer Indemnified Party shall defend the Seller Indemnifying Party against the matter with counsel, which choice of counsel is subject to the reasonable satisfaction of Sellers' Representative; (iii) the Seller Indemnifying Parties may retain separate co-counsel at their sole cost and expense; (iv) the Seller Indemnifying Parties shall not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Buyer Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed; and (v) the Buyer Indemnified Party shall not consent to the entry of any judgment with respect to the matter, or enter into any settlement without the consent of the Sellers' Representative, which consent shall not be unreasonably withheld, conditioned or delayed. The Buyer Parent Indemnified Party agrees, in connection with any such Third Party Claim, Claim to work cooperatively and in good faith with the Seller Parent Indemnifying Parties. (d) Parties consistent with the best interest of the Parent Indemnified Party. If the Indemnifying Party is entitled under this Section 6.3.4 to assume the defense of the respective Third Party Claim and gives such notice of intent to defend, the Indemnifying Party shall assume the defense thereof as follows: (ia) the Indemnifying Party shall will defend the Indemnified Party against the matter with counsel compensated by and chosen by Indemnifying Party, which choice of counsel is subject to the reasonable satisfaction of Indemnified Party; (iib) the Indemnified Party may retain separate co-counsel at the sole cost and expense of Indemnified Party; (iiic) the Indemnified Party shall will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Indemnifying Party; and (ivd) the Indemnifying Party shall will not consent to the entry of any judgment with respect to the matter, or enter into any settlement that does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed if such settlement only requires the payment by one or more Indemnifying Parties of a monetary amount, does not include a statement as to admission of fault, culpability or failure to act by or on behalf of such Parent Indemnified Party. (e) , and Parent Indemnified Party could not reasonably believe that the settlement would be detrimental to the Parent Indemnified Party’s reputation or continuing business. If a Third Party Claim is made and no Indemnifying Party notifies the Indemnified Party within 10 Business Days days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, the Indemnified Party shall defend against against, or enter into any settlement with respect to the matter and the Seller Indemnifying Parties shall have the obligation to pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3)matter. Notwithstanding the foregoing, the The Indemnified Party shall not settle such Third Party Claim without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed.

Defense by Indemnifying Party. (a) If a claim or demand is asserted by a third Person against an Indemnified Person (a "“Third Party Claim"”), the Indemnifying Party shall, except as otherwise provided in Section 6.3.4(b), have the right, but not the obligation, exercisable by notice to the Indemnified Party within 10 days of the date of the Notice of Claim concerning the commencement or assertion of any Third Party Claim, to assume the defense of such Third Party Claim. (b) The Seller Indemnifying Parties shall not have such right or opportunity to assume and control the defense of any such Third Party Claim, but shall have the right, at their costs, right to participate in the defense of such Third Party Claim and the obligation to shall pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3) if (i) such Third Party Claim relates to, or arises in connection with, any criminal proceeding, indictment, investigation investigation, or civil action by any Governmental Entity other than inquiries or audits in the Ordinary Course ordinary course of Businessbusiness, or (ii) such Third Party Claim alleges Losses in excess of the then available funds held in Escrow (after deducting the full amount of all pending Indemnification Claims), (iii) such Third Party Claim seeks an injunction or other equitable relief against the Buyer Indemnified Party, (iv) the Buyer Indemnified Party reasonably believes that an adverse determination with respect to such Third Party Claim would be detrimental to the Buyer Indemnified Party’s reputation or continuing business interests, or (v) the Buyer Indemnifying Parties fail to conduct the defense of such Third Party Claim actively and diligently. (c) If the Buyer Indemnified Party assumes and controls the defense of a Third Party Claim pursuant to Section 6.3.4(b), (i) the Buyer Indemnified Party shall permit the Seller Indemnifying Parties to participate in the defense of such claim, to have reasonable access to all documents and personnel involved in such claim and to discuss its views and positions with the Buyer Indemnified Party, (ii) the Buyer Indemnified Party shall defend the Seller Indemnifying Party against the matter with counsel, which choice of counsel is subject to the reasonable satisfaction of Sellers' Representative; (iii) the Seller Indemnifying Parties may retain separate co-counsel at their sole cost and expense; (iv) the Seller Indemnifying Parties shall not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Buyer Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed; and (v) the Buyer Indemnified Party shall not consent to the entry of any judgment with respect to the matter, or enter into any settlement without the consent of the Sellers' Representative, which consent shall not be unreasonably withheld, conditioned or delayed. The Buyer Indemnified Party agrees, in connection with any such Third Party Claim, to work cooperatively and in good faith with the Seller Indemnifying Parties. (d) If the Indemnifying Party is entitled under this Section 6.3.4 to assume the defense of the respective Third Party Claim and gives such notice of intent to defend, the Indemnifying Party shall assume the defense thereof as follows: (i) the Indemnifying Party shall will defend the Indemnified Party against the matter with counsel compensated by and chosen by Indemnifying Party, which choice of counsel is subject to the reasonable satisfaction of Indemnified Party; (ii) the Indemnified Party may retain separate co-counsel at the sole cost and expense of Indemnified Party; (iii) the Indemnified Party shall will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Indemnifying Party; and (iv) the Indemnifying Party shall will not consent to the entry of any judgment with respect to the matter, or enter into any settlement that does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed if such settlement only requires the payment by one or more Indemnifying Parties of a monetary amount, does not include a statement as to admission of fault, culpability or failure to act by or on behalf of such Indemnified Party, and the Indemnified Party could not reasonably believe that the settlement would be detrimental to the Indemnified Party’s reputation or continuing business. (e) If a Third Party Claim is made and no Indemnifying Party notifies the Indemnified Party within 10 Business Days days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, the Indemnified Party shall defend against against, or enter into any settlement with respect to the matter and the Seller Indemnifying Parties shall have the obligation to pay the reasonable fees and expenses of counsel retained by the Buyer Indemnified Party in respect of the Third Party Claim (which obligation shall constitute Losses subject to the terms and conditions of this Section 6.3)matter. Notwithstanding the foregoing, the The Indemnified Party shall not settle such Third Party Claim without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed.