Common use of Defense Clause in Contracts

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheld.

Defense. If Promptly after receipt by an Indemnified Person of notice of any action, litigation, claim or demand or the commencement of any suit, investigation, arbitration action or other proceeding ("Proceeding") is brought against an Indemnitee for by any third party with respect to which such Indemnitee is or indemnification may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitorsought hereunder, the Indemnitee such Indemnified Person shall promptly give a Notice to notify in writing the Indemnitor of such Proceedingclaim or demand or the commencement of such suit, action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. The If the Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunityshall so elect, the Indemnitor or its counsel does not shall assume the defense of any such Proceedingclaim, it demand, action, suit or proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall be bound by pay the results obtained by the Indemniteefees and disbursements of such counsel. In the event event, however, that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days such Indemnified Person shall reasonably determine that having common counsel would present such counsel with a conflict of having given Notice interest or alternative defenses shall be available to the Indemnitor of any such Proceeding, an Indemnified Person or if the Indemnitor shall be deemed to have elected not fail to assume the defense of the claim, demand, action, suit or proceeding in a timely manner, then such ProceedingIndemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action, suit or proceeding and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume shall pay the defense reasonable fees and disbursements of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defensecounsel; provided, however, that the Indemnitee will Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action, suit or proceeding. For any claim, demand, action, suit or proceeding the defense of which the Indemnitor shall assume, the Indemnified Person shall have the right to compromise participate therein and to retain its own counsel at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 12.4), so long as such participation does not interfere with the Indemnitor's control of such claim, demand, action, suit or settle such Proceeding only with proceeding. The Indemnitor shall not, without the prior written consent of the Indemnitor Indemnified Person, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder unless such settlement, compromise or consent shall include an unconditional release of such Indemnified Person from all liability arising out of such claim, demand, action, suit or proceeding and would not be unreasonably withheldprohibit, restrict or impair the Indemnified Person from engaging in any business.

Defense. If In case any actionclaim, litigation, suit, investigation, arbitration demand or deficiency (a "CLAIM") is asserted or any action is commenced or notice is given of any administrative or other proceeding against the person(s) and/or entities seeking indemnity under this SECTION 11 (hereinafter referred to as the "ProceedingINDEMNITEE") is brought against an Indemnitee for in respect of which such Indemnitee indemnity is or may be entitled sought hereunder (each and all of such persons and entities being hereinafter referred to indemnification as the "INDEMNITOR") pursuant to subparagraph 13(a) or 13(b) from an Indemnitorthis SECTION 11, the Indemnitee shall promptly give a Notice prompt notice thereof in writing to the Indemnitor Indemnitor. Within thirty (30) days after receipt of such Proceeding. The notice (or prior to such earlier date as any answer in any administrative or other proceeding is due), Indemnitor shall, may give Indemnitee written notice of its election to conduct the defense of such Claim at its own expense. If Indemnitor has given Indemnitee such notice of election to conduct the defense, Indemnitee shall nevertheless have the opportunity right to participate in the defense thereof, but such participation shall be represented by counsel solely at its expense. If Indemnitor shall not notify Indemnitee in writing (within the time hereinabove provided) of its choosing election to conduct the defense of such Claim, Indemnitee may (but need not) conduct (at the expense of Indemnitor) the defense of any Claim. The party assuming the defense of a Claim hereunder (the "DEFENDING PARTY") shall notify the other party of its intention to settle, compromise or satisfy any such Claim and may make such settlement, compromise or satisfaction unless such other party (the "ASSUMING PARTY") shall notify the Defending Party in writing (within thirty (30) days after receipt of such notice of intention to settle, compromise or satisfy) of its election to assume and conduct (at its sole expense) the defense of any such Proceeding upon providing a written undertaking Claim and promptly thereafter take appropriate action to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct implement such defense. In The Assuming Party shall indemnify the event that Defending Party and hold it harmless against any losses in excess of the Indemnitor does elect to assume amount of losses the defense of such Proceeding, Defending Party would have incurred if the proposed settlement had been agreed upon. Indemnitee will shall cooperate with and make available to the Indemnitor in such assistance and materials as may be reasonably requested by it defense, at no cost to the Indemnitor's cost, and the Indemnitee will have the right at its expense to participate shall provide reasonable assistance of Indemnitee's employees in the connection with such defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheld.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") Action is brought against an Indemnitee for which such Indemnitee is or may Indemnified Party, the Indemnifying Party will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing participate in and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect thereof to the Indemnitee. Ifextent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after notice from the Indemnifying Party to such opportunity, Indemnified Party of the Indemnitor or its counsel does not Indemnifying Party’s election to assume the defense of thereof, the Indemnifying Party will not be liable to the Indemnified Party for any such Proceeding, it shall be bound legal or other expenses subsequently incurred by the results obtained by latter in connection with the Indemnitee. In defense thereof unless the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not Indemnifying Party fails to assume the defense of such ProceedingAction to protect the Indemnified Party. Notwithstanding anything to the contrary in this Subsection 10.4(b), the Indemnified Party will be entitled to select its own counsel and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of any Action brought against it, at the Indemnifying Party’s expense if (i) the court in which such ProceedingAction is pending determines that a conflict of interest exists such that the Indemnifying Party’s counsel is prohibited by such court or otherwise unable to represent the Indemnified Party with respect to such Action or (ii) if there is one or more defenses that could be asserted by the Indemnified Party that could not be asserted by the Indemnifying Party or the Indemnifying Party’s counsel (on the Indemnified Party’s behalf). The expenses of such defense to be paid by the Indemnifying Party shall be limited to the expenses of one law firm in each state in which an action has been filed. As a condition to the Indemnifying Party’s obligations hereunder, the Indemnitee Indemnified Party will in good faith cooperate with and make available to assist the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate Indemnifying Party in the defense; provided, however, that prosecution or defense of such indemnified Action at the Indemnitee expense of the Indemnifying Party. No Indemnifying Party will have consent to entry of any judgment or enter into any settlement with respect to an indemnified Action either: (i) without the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor Indemnified Party, which shall consent will not be unreasonably delayed, conditioned or withheld; or (ii) unless such judgment or settlement includes the claimant or plaintiff giving the Indemnified Party an unconditional release from all liability with respect to such Action. No Indemnified Party will consent to entry of any judgment or enter into any settlement of any indemnified Action, the defense of which has been assumed by an Indemnifying Party, without the consent of such Indemnifying Party, which consent will not be unreasonably delayed, conditioned or withheld.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") action is brought against an Indemnitee for which such Indemnitee is or may indemnified party, the indemnifying Party will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing participate in and to assume the defense thereof to the extent that it may wish, and conduct after notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the indemnifying Party has failed to assume and diligently prosecute the defense of such claim. Notwithstanding any such Proceeding upon providing a written undertaking to that effect of the foregoing to the Indemnitee. If, after such opportunitycontrary, the Indemnitor or indemnified party will be entitled to select its own counsel does not and assume the defense of any action brought against it if the indemnifying Party fails to assume or diligently prosecute such Proceedingdefense, it shall the expenses of such defense to be bound paid by the results obtained indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the Indemniteeclaimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days No 27242226 49 Asset Purchase Agreement indemnified party shall consent to entry of having given Notice to the Indemnitor any judgment or enter into any settlement of any such Proceedingaction, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceedingwhich has been assumed by an indemnifying Party, and in such event without the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense consent of such Proceedingindemnifying Party, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written which consent of the Indemnitor which shall not be unreasonably withheld.

Defense. If the facts pertaining to a Loss arise out of the claim of ------- any actionthird party, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") if there is brought any claim against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitora third party available by virtue of the circumstances of the Loss, the Indemnitee shall promptly give a Notice Indemnity Obligor may, by giving written notice to the Indemnitor Indemnified Party within 30 days following its receipt of the notice of such Proceeding. The Indemnitor shallclaim, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense or the prosecution of such Proceedingclaim, including the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right employment of counsel or accountants at its expense to participate in the defensecost and expense; provided, however, that during the Indemnitee interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss; provided that such counsel or accountants shall be reasonably satisfactory to the Indemnified Party; provided that the Indemnity Obligor agrees prior to assuming such defense or prosecution of the claim that it is obligated to indemnify the Indemnified Party for the loss suffered by the Indemnified Party as a result of such claim; provided that the Indemnity Obligor can demonstrate to the reasonable satisfaction of the Indemnified Party that such Indemnity Obligor has the financial ability to satisfy such indemnity obligation; and provided that any compromise or settlement must be reasonably approved by the Indemnified Party. Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a claim may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may, by notice to the Indemnity Obligor, assume the exclusive right to defend, compromise or settle such claim, but the Indemnity Obligor will not be bound by any determination of a claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). The Indemnified Party shall have the right to compromise employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in such action, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense. Whether or settle not the Indemnity Obligor chooses so to defend or prosecute such Proceeding only with claim, all the parties to this Agreement shall cooperate in the defense or prosecution of such claim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. No Indemnity Obligor shall be liable for any settlement of any such claim effected without its prior written consent of the Indemnitor consent, which shall not be unreasonably withheld.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding Upon receipt of notice under Section 11.3.1 ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(bNotice) from an Indemnitorthe Indemnitee, the Indemnitee shall promptly give a Notice Indemnifying Party will have the duty to the Indemnitor of such Proceeding. The Indemnitor shalleither compromise or defend, at its own expense, have the opportunity to be represented expense and by counsel (reasonably satisfactory to Indemnitee), such Claim. The Indemnifying - 41 - [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Party will promptly (and in any event not more than [*] after receipt of the Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Claim pursuant to this Article 11 (Indemnification; Insurance) and of its choosing and intention either to assume and conduct compromise or defend such Claim. Once the defense of any Indemnifying Party gives such Proceeding upon providing a written undertaking to that effect notice to the Indemnitee. If, after such opportunity, (a) the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee Indemnifying Party will have the right to conduct control the defense and settlement of such Claim, subject to this Section 11.3 (Indemnification Procedures) and (b) the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee’s reasonable expenses of investigation and cooperation. In Any Indemnitee will be entitled to participate in, but not control, the event defense of any Claim and to retain counsel of its choice for such purpose; provided that such retention will be at the Indemnitor does elect Indemnitee’s own cost and expense unless (i) the Indemnifying Party has failed to assume the defense and retain counsel in accordance with this Section 11.3.2 (Defense) (in which case the indemnified Party will control the defense at the Indemnifying Party’s cost and expense), or (ii) the interests of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have Indemnifying Party with respect to such Claim are sufficiently adverse to prohibit the right at its expense to participate in representation by the defense; providedsame counsel of both Parties under any legal requirement, howeverethical rules, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheldequitable principles.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding a claim by a third party (a "ProceedingThird Party Claim") is brought made against an SFI Indemnitee arising out of a matter for which such the SFI Indemnitee is entitled to be indemnified pursuant to Section 5 hereof, the Preferred Shareholders may elect to assume the defense or may the prosecution thereof. The Preferred Shareholders shall have 30 days (which shall be shortened to 15 days in the case of a commenced lawsuit or proceeding) after receipt of a Notice of Claim to undertake to conduct and control, through counsel of their own choosing as designated by the Shareholder Representative and at their sole risk and expense, the good faith settlement or defense of such claim, and the SFI Indemnitee(s) shall cooperate fully with the Preferred Shareholders in connection therewith; provided that the SFI Indemnitee(s) shall be entitled to participate in such settlement or defense through counsel chosen by it, provided that the fees and expenses of such counsel shall be borne by the SFI Indemnitee(s); and provided further that the Preferred Shareholders can only assume the defense if (a) the amount of the Third Party Claim does not exceed the amount of the Escrow Funds held hereunder or (b) the Preferred Shareholders provide commercially reasonable evidence that the Preferred Shareholders will have sufficient financial resources to defend the claim and satisfy their indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, obligations. During the interim the SFI Indemnitee shall promptly give a Notice use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Indemnitor alleged Loss. The Preferred Shareholders shall obtain the written consent of the SFI Indemnitee prior to ceasing to defend, settling or otherwise disposing of such Proceedingclaim if as a result thereof the SFI Indemnitee would become subject to injunctive, declaratory or other equitable relief or the business of the SFI Indemnitee would be materially adversely affected in any manner. Whether or not the Preferred Shareholders choose so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Such cooperation shall include the retention and the provision of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information. The Indemnitor shall, at its own expense, have the opportunity to Preferred Shareholders shall not be represented by counsel of its choosing and to assume and conduct the defense liable for any settlement of any such Proceeding upon providing a claim effected without their prior written undertaking consent, which shall not be unreasonably withheld. However, if the Preferred Shareholders, fail to that effect defend such claim within the time period necessary to preserve the rights and defense of the SFI Indemnitee, the SFI Indemnitee will have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the Preferred Shareholders, subject to the Indemnitee. If, after such opportunity, right of the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not Preferred Shareholders to assume the defense of such Proceedingclaim at any time within the 30-day time period after receiving Notice of Claim . If a claim is based on any suit or proceeding by a third party for infringement which gives rise to an IP Claim (defined in Section 5) resulting in SFI's use of the Software (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, and in such event the Indemnitee will have Preferred Shareholders, if the right to conduct such defense. In Preferred Shareholders elect through the event that the Indemnitor does elect Shareholder Representative to assume the defense of such Proceedingproceeding after receiving notice hereunder, shall be entitled at their sole expense to do any of the Indemnitee will cooperate with following: (i) procure for SFI, Clarus CSA, Inc. and make available their licensees the unrestricted right to continue using the Software, (ii) modify the Software so that it becomes noninfringing, (iii) settle the third party's infringement claim in a manner that gives SFI, Clarus CSA, Inc. and their licensees the unrestricted rights to the Indemnitor such assistance and materials software being enjoined or otherwise restricted, or (iv) pay the indemnified party's claim as may be reasonably requested by it at no cost to the Indemnitorprovided in this Agreement, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, provided that the Indemnitee will have the right to compromise or settle such Proceeding only with the any settlement under this sentence shall require SFI's prior written consent of the Indemnitor approval which shall not be unreasonably withheld. SFI shall comply with any settlement or court order made in connection with such proceeding in the foregoing sentence provided that such compliance by SFI shall not limit the Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld. Before any claim may be brought against any of the Preferred Shareholders hereunder, or under the Merger Agreement, all the Escrow Funds shall be used first to pay any claims made under Article IX of the Merger Agreement or this Agreement, and SFI hereby authorizes the Preferred Shareholders to settle such claims without consent of SFI to the extent the Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim for which they are liable hereunder without consent of SFI so long as the payment or performance does not either (y) exhaust the Escrow Funds or (y) exceed the maximum liability amounts set forth below. Settlements requiring performance or payment in excess of the maximum liability amounts shall require SFI's prior written consent.

Defense. If With respect to any actionProceeding as to which Indemnitee notifies the Company of the commencement thereof, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may the Company will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, participate in the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, Proceeding at its own expenseexpense and except as otherwise provided below, have to the opportunity extent the Company so wishes, it may assume the defense thereof with counsel reasonably satisfactory to be represented by counsel Indemnitee. After notice from the Company to Indemnitee of its choosing and election to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ his or her own counsel in such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written but all Expenses related thereto incurred after notice from the Indemnitor within ten Company of its assumption of the defense shall be at Indemnitee’s expense unless: (10i) days the employment of having given Notice to counsel by Indemnitee has been authorized by the Indemnitor Company, (ii) Indemnitee has reasonably determined that there may be a conflict of any such interest between Indemnitee and the Company in the defense of the Proceeding, (iii) after a Change in Control, the Indemnitor employment of counsel by Indemnitee has been approved by the Independent Counsel, or (iv) the Company shall be deemed to not within sixty (60) calendar days in fact have elected not employed counsel to assume the defense of such Proceeding, and in such event each of which case all Expenses of the Proceeding shall be borne by the Company. If two or more persons who may be entitled to indemnification from the Company, including the Indemnitee, are parties to any Proceeding, the Company may require Indemnitee will to use the same legal counsel as the other parties. Indemnitee shall have the right to conduct such defenseuse separate legal counsel in the Proceeding, but the Company shall not be liable to Indemnitee under this Agreement for the fees and expenses of separate legal counsel incurred after notice from the Company of the requirement to use the same legal counsel as the other parties, unless the Indemnitee reasonably concludes that there may be a conflict of interest between Indemnitee and any of the other parties required by the Company to be represented by the same legal counsel. In the event that separate counsel is retained by an Indemnitee pursuant to this Section 6(b), the Indemnitor does elect Company shall cooperate with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to the Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. The Company shall not be entitled to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested any Proceeding brought by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent on behalf of the Indemnitor Company or as to which Indemnitee shall not be unreasonably withheldhave made the determination provided for in (ii) above.

Defense. If The Indemnified Party intending to claim indemnification under this ARTICLE VIII shall promptly notify the Indemnifying Party of any actionAction or Loss in respect of which the Indemnified Party intends to claim such indemnification, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may and the Indemnifying Party shall be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct control the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its thereof (with counsel does not assume the defense of any such Proceeding, it shall be bound selected by the results obtained by the Indemnitee. In the event that the Indemnitee does Indemnifying Party) whether or not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defenseAction is rightfully brought; provided, however, that the Indemnitee will an Indemnified Party shall have the right to compromise retain its own counsel, with the fees and expenses to be paid by the Indemnified Party, unless Indemnifying Party does not assume the defense, in which case the reasonable fees and expenses of counsel retained by the Indemnified Party shall be paid by the Indemnifying Party. The Indemnified Party, and its employees and agents, shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation and defense of any Action or Loss. The Indemnifying Party shall not be liable for the indemnification of any Action or Loss settled (or resolved by consent to the entry of judgment) without the written consent of the Indemnifying Party. Also, if the Indemnifying Party shall control the defense of any such Action, the Indemnifying Party shall have the right to settle such Proceeding only with Action; provided, that the Indemnifying Party shall obtain the prior written consent of the Indemnitor (which shall not be unreasonably withheldwithheld or delayed) of the Indemnified Party before entering into any settlement of (or resolving by consent to the entry of judgment upon) such Action unless (A) there is no finding or admission of any violation of law or any violation of the rights of any Person by an Indemnified Party, no requirement that the Indemnified Party admit fault or culpability, and no adverse effect on any other claims that may be made by or against the Indemnified Party and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party or its insurer and such settlement does not require the Indemnified Party to take (or refrain from taking) any action.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") Proceeding referred to in Section 10.10.1 is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice indemnified party and it gives notice to the Indemnitor indemnifying party of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel commencement of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall indemnifying party will, unless the claim is a Tax Claim, be deemed entitled to have elected not participate in such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such ProceedingProceeding with counsel satisfactory to the indemnified party and, and in such event after notice from the Indemnitee will have indemnifying party to the right to conduct such defense. In the event that the Indemnitor does elect indemnified party of its election to assume the defense of such Proceeding, the Indemnitee indemnifying party will cooperate with and make available not, as long as it diligently conducts such defense, be liable to the Indemnitor indemnified party under this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such assistance Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and materials as subject to indemnification; (ii) no compromise or settlement of such claims may be reasonably requested effected by it at the indemnifying party without the indemnified party’s consent unless (A) there is no cost finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party’s notice is given, give notice to the Indemnitorindemnified party of its election to assume the defense of such Proceeding, and the Indemnitee indemnifying party will have the right at its expense to participate be bound by any determination made in the defense; provided, however, that the Indemnitee will have the right to such Proceeding or any compromise or settle such Proceeding only with settlement effected by the prior written consent of the Indemnitor which shall not be unreasonably withheldindemnified party.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") such action is brought against an Indemnitee for which such Indemnitee is or may indemnified party, the indemnifying Party will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing participate in and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect thereof to the Indemnitee. Ifextent that it may wish, and after notice from the indemnifying Party to such opportunity, indemnified party of the Indemnitor or its counsel does not indemnifying Party’s election to assume the defense of thereof, the indemnifying Party shall not be liable to such indemnified party for any such Proceeding, it shall be bound legal or other expenses subsequently incurred by the results obtained by latter in connection with the Indemnitee. In defense thereof unless the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not indemnifying Party has failed to assume the defense of such Proceedingclaim. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of any action brought against it if the indemnifying Party fails to assume such Proceedingdefense, the Indemnitee expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and make available assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor indemnified party, which consent shall not be unreasonably withheld, delayed or conditioned, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with PURCHASE AND SALE AGREEMENT 39 respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") such action is brought against an Indemnitee for which such Indemnitee is or may indemnified party, the indemnifying Party will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing participate in and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect thereof to the Indemnitee. Ifextent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the indemnified party within thirty (30) days of its receipt of written notice of such action from the indemnified party, and after such opportunity, notice from the Indemnitor or its counsel does not indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense of thereof, the indemnifying Party shall not be liable to such indemnified party for any such Proceeding, it shall be bound legal or other expenses subsequently incurred by the results obtained by latter in connection with the Indemnitee. In defense thereof unless the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not indemnifying Party has failed to assume the defense of such Proceedingclaim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of any action brought against it if (i) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified party in connection with the defense of such Proceedingaction or proceeding, (ii) such action or proceeding seeks injunctive relief with respect to the indemnified claim or is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified party, in each case, with the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the Indemnitee indemnified party will in good faith cooperate with and make available assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable out of pocket expense to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If a claim by a third party is made against any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be party entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitorunder this Agreement, the Indemnitee such Indemnified Party shall promptly give a Notice to (i.e., within five (5) business days of the Indemnitor Indemnified Party having actual knowledge of such Proceedingclaim) notify the indemnifying party of such claim. The Indemnitor shallindemnifying party shall have ten (10) business days after receipt of the above-referenced notice to undertake, at its own expense, have the opportunity to be represented by through counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect (subject to the Indemnitee. If, after such opportunityreasonable consent of the Indemnified Party) and at the expense of the indemnifying party, the Indemnitor settlement or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defensethereof; provided, however, that any such settlement shall be subject to the Indemnitee will written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. If approval of the monetary terms of any such proposed settlement is not given, then the Indemnifying Party's maximum monetary obligation for any future settlement or judgment shall be the amount of the settlement that was not so approved. If the indemnifying party does not notify the Indemnified Party within ten (10) business days after receipt of the Indemnified Party's notice of a claim of indemnity hereunder that the indemnifying party elects to undertake the defense thereof, or the indemnifying party ceases to reasonably contest such claim in good faith, the Indemnified Party shall have the right to contest, settle or compromise or settle such Proceeding only with the prior claim at the expense of the indemnifying party and subject to the written consent of the Indemnitor indemnifying party, which shall not be unreasonably withheld, conditioned or delayed. In connection with the defense of any claim, each party will make available to the party controlling such defense, any books, records or other documents within its control that are reasonably requested in the course of such defense. Nothing contained in this Section 9.3.2 shall be construed as a limitation on the right of any party to indemnification under this Agreement.

Defense. If In the event any action, litigation, suit, investigation, arbitration suit or other proceeding (a "ProceedingLEGAL ACTION") is brought against an Indemnitee for indemnified party, with respect to which such Indemnitee is or the indemnifying party may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from have liability under an Indemnitorindemnity agreement contained herein, the Indemnitee Legal Action shall, upon the written agreement of the indemnifying party that it is obligated to indemnify under such indemnity agreement, be defended by the indemnifying party and such defense shall promptly give a Notice to include all proceedings on appeal or for review which counsel for the Indemnitor of such Proceedingdefendant shall deem appropriate. The Indemnitor shallindemnified party shall have the right to be represented by counsel and accountants, at its own expense, have the opportunity and shall be kept fully informed as to be such Legal Action at all stages thereof whether or not it is represented by counsel of its choosing and to assume and conduct own counsel. Until the indemnifying party shall have so assumed the defense of any such Proceeding upon providing a written undertaking Legal Action, or if the indemnified party shall have reasonably concluded that there are likely to that effect be defenses available to the Indemnitee. If, after such opportunity, the Indemnitor indemnified party that are different from or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice in addition to those available to the Indemnitor of any such Proceeding, indemnifying party (in which case the Indemnitor indemnifying party shall not be deemed to have elected not entitled to assume the defense of such Proceeding, and in such event the Indemnitee will Legal Action but shall have the right to conduct be represented by counsel and accountants, at its own expense, and shall be kept fully informed as to such defenseLegal Action at all stages thereof whether or not represented by its own counsel), all legal or other expenses reasonably incurred by the indemnified party shall be borne by the indemnifying party. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and The indemnifying party shall make available to the Indemnitor indemnified party and its attorneys and accountants all books and records of the indemnifying party relating to such Legal Action and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to facilitate the proper and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle adequate defense of any such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheldLegal Action.

Defense. If In the event any actionThird Party shall make a demand or claim or file or threaten to file or continue any lawsuit, litigationwhich demand, suitclaim or lawsuit may result in liability to an Indemnified Party in respect of matters covered by the indemnity under this Agreement, investigationor in the event that a potential Loss, arbitration damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other proceeding Party in writing of the demand, claim or lawsuit. Within thirty ("Proceeding"30) is brought against days after written notice by the Indemnified Party (the “Notice”) to an Indemnitee for which Indemnifying Party of such Indemnitee is demand, claim or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitorlawsuit, except as provided in the next sentence, the Indemnitee Indemnifying Party shall promptly give a Notice have the option, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; provided that counsel who will conduct the Indemnitor defense of such Proceedingdemand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnitor shallIndemnified Party shall have the right, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct participate in the defense of any such Proceeding upon providing a written undertaking suit, action or proceeding brought against it with respect to that effect which indemnification may be sought hereunder; provided, if (i) the named parties to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceedingproceeding (including any interpleaded parties) include both the Indemnifying Party and the Indemnified Party, it shall be bound representation of both parties by the results obtained same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnitee. In Indemnifying Party, which authorization will not be unreasonably withheld, or (iii) the event that the Indemnitee does Indemnifying Party has not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not in fact employed counsel to assume the defense of such Proceedingaction within a reasonable time; then, and in such event the Indemnitee will Indemnified Party shall have the right to conduct retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnitor does elect Indemnifying Party shall fail to assume respond within thirty (30) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such Proceedingdemand, claim or lawsuit, as it may in its sole discretion deem proper, at the Indemnitee will cooperate with sole cost and make available expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the Indemnitor extent the Indemnifying Party’s defense of the action is actually prejudiced by such assistance and materials as may be reasonably requested by it at no cost to failure. The assumption of the Indemnitor, and defense or the Indemnitee will have the right at its expense to participate in non-assumption of the defense; provided, however, that by the Indemnitee purported Indemnifying Party will have the not affect such party’s right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withhelddispute its obligation to provide indemnification hereunder.

Defense. If With respect to any actionProceeding as to which Indemnitee notifies Xxxxxxx Controls and Tyco Management of the commencement thereof, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may Xxxxxxx Controls will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, participate in the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, Proceeding at its own expenseexpense and except as otherwise provided below, have to the opportunity extent Xxxxxxx Controls so wishes, it may assume the defense thereof with counsel reasonably satisfactory to be represented by counsel Indemnitee. After notice from Xxxxxxx Controls to Indemnitee of its choosing and election to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any Proceeding, Xxxxxxx Controls shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ legal counsel in such Proceeding, it but all Expenses related thereto incurred after notice from Xxxxxxx Controls of its assumption of the defense shall be bound at Indemnitee’s expense unless: (i) the employment of legal counsel by Xxxxxxxxxx has been authorized by Xxxxxxx Controls, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Xxxxxxx Controls in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Xxxxxxxxxx has been approved by the results obtained by the Indemnitee. In the event that the Indemnitee does Independent Counsel, or (iv) Xxxxxxx Controls shall not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to in fact have elected not employed counsel to assume the defense of such Proceeding, and in such event each of which cases all Expenses of the Indemnitee will have Proceeding shall be borne by Xxxxxxx Controls to the right to conduct such defensefullest extent permitted by law. In the event that the Indemnitor does elect Xxxxxxx Controls shall not be entitled to assume the defense of such Proceedingany Proceeding (x) brought by or on behalf of Tyco Management or Xxxxxxx Controls, (y) as to which Indemnitee shall have made the Indemnitee will cooperate with and make available to determination provided for in (ii) above or (z) after a Change in Control (it being specified, for the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, howeveravoidance of doubt, that the Indemnitee will have the right to compromise or settle Xxxxxxx Controls may assume defense of any such Proceeding only proceeding described in this sentence with the prior written Xxxxxxxxxx’s consent, provided that any such consent of the Indemnitor which shall not be unreasonably withheldaffect the rights of Indemnitee under the foregoing provisions of this Section 6(b)).

Defense. If Except as set forth in Section 11.5(d) hereof, if any action, litigationsuit or proceeding is commenced, suitor any claim or demand is asserted, investigation, arbitration or other proceeding by a third party not Affiliated with any party hereto against a party hereto (the "ProceedingIndemnitee") is brought against an in respect of which the Indemnitee for which such Indemnitee is proposes to demand indemnification under Section 11.1 or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor11.2 above, the Indemnitee party from which indemnification is sought (the "Indemnitor") shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense entire control thereof (including the selection of such Proceedingcounsel reasonably acceptable to the Indemnitee), subject to the right of the Indemnitee will cooperate to participate (with and make available counsel of its choice reasonably acceptable to the Indemnitor such assistance and materials as may be reasonably requested by it but at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate Indemnitee's expense) in the defense, compromise or settlement thereof; provided, however, that if the Indemnitee will have claim or demand is one for which both parties hereto are responsible, then both parties shall jointly assume the right defense thereof with counsel reasonably acceptable to each party, and neither party may compromise or settle such Proceeding only claim or demand without the other party's consent, which consent will not be unreasonably denied or withheld. The Indemnitee shall notify the Indemnitor at the earliest practical time after the Indemnitee becomes aware of the circumstance, event or activity which gives rise to the asserted obligation of indemnity, it being understood that failure to provide such notice shall not affect the Indemnitee's right to indemnification hereunder, except to the extent the Indemnitor shall have been prejudiced as a result of such failure (and the Indemnitor shall not be liable for any attorney fees or expenses incurred during the period in which the Indemnitor shall have failed to give such notice). With respect to any actions, suits, proceedings, claims or demands as to which the Indemnitor shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such action with counsel chosen by it and approved by the Indemnitor, which approval shall not be unreasonably withheld, in which case the Indemnitor shall be entitled to participate in the defense of such action (the cost of such participation to be at its own expense) and the Indemnitor shall be obligated to pay the reasonable attorneys' fees and expenses of the Indemnitee to the extent that such fees and expenses relate to claims as to which indemnification is due under this Article XI and subject to the limitations contained in this Agreement. Both the Indemnitor and the Indemnitee shall cooperate fully in all respects with one another in any such defense, compromise or settlement, including, without limitation, by making available to the other all pertinent information and personnel under its direct or indirect control, and the parties agree that such cooperation will be carried out in a way so as not to waive any applicable or available attorney-client privilege, and the parties will take all measures to protect such privilege. Neither party shall compromise or settle any such action, suit, proceeding, claim or demand without prior written consent of the Indemnitor other party, which consent shall not be unreasonably withheldwithheld or delayed, provided, however, that a party may so compromise or settle, after consultation with the other party, (i) if such compromise or settlement involves solely the payment of money damages and/or the granting of releases, provided that no such compromise, settlement or release shall acknowledge liability for future acts or obligate any Xxxxxxxx Indemnitee with respect to any post-Closing activities of the Business or, except for the Assumed Liabilities, obligate any Purchaser Indemnitee with respect to any pre-Closing activities of the Business, (ii) if all claimants provide a release (reasonably acceptable to such Indemnitees) in favor of Indemnitees, and (iii) if all claimants agree in writing to maintain the facts and circumstances of the settlement confidential to the extent permitted by applicable law). This Section 11.3 shall not apply to direct claims of any Xxxxxxxx Indemnitee against Purchaser or Silgan or of any Purchaser Indemnitee against Xxxxxxxx, that are not based upon claims asserted by third parties.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") such action is brought against an Indemnitee for which such Indemnitee is or may indemnified Party, the indemnifying Party will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing participate in and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect thereof to the Indemnitee. Ifextent that it may wish, with counsel reasonably satisfactory to such indemnified Party, and after notice from the indemnifying Party to such opportunity, indemnified Party of the Indemnitor or its counsel does not indemnifying Party’s election to assume the defense of thereof, the indemnifying Party shall not be liable to such indemnified Party for any such Proceeding, it shall be bound legal or other expenses subsequently incurred by the results obtained by latter in connection with the Indemnitee. In defense thereof unless the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not indemnifying Party has failed to assume the defense of such Proceedingclaim. Notwithstanding any of the foregoing to the contrary, the indemnified Party will be entitled to select its own counsel and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of any action brought against it if the indemnifying Party fails to assume such Proceedingdefense, the Indemnitee reasonable expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified Party will in good faith cooperate with and make available assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost indemnified Party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor indemnified Party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Party of a release from all liability with respect to such claim. No indemnified Party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If the facts relating to a Loss or Company Loss arise out of a Third Party Claim, or if there is any action, litigation, suit, investigation, arbitration claim against a third party available by virtue of the circumstances of the Loss or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an IndemnitorCompany Loss, the Indemnitee shall promptly give a Notice Indemnity Obligor shall, by giving written notice to the Indemnitor Indemnified Party within 15 days following its receipt of the notice of such Proceeding. The Indemnitor shallclaim, assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; PROVIDED, HOWEVER, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss or Company Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, have unless (a) the opportunity to be represented employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect reasonably satisfactory to the Indemnitee. If, after such opportunity, the Indemnitor Indemnity Obligor that there may be one or its counsel does not assume the defense of any such Proceeding, more legal defenses available to it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice which are different from the Indemnitor within ten (10) days of having given Notice or additional to those available to the Indemnitor Indemnity Obligor and in the reasonable judgment of any such Proceedingcounsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnitor shall be deemed to have elected not Indemnity Obligor has failed to assume the defense of such Proceedingaction and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such claim, and all the parties hereto shall cooperate in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of or prosecution thereof and shall furnish such Proceedingrecords, the Indemnitee will cooperate with information and make available to the Indemnitor testimony and shall attend such assistance conferences, discovery proceedings and materials trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by it at no cost the Indemnity Obligor to the IndemnitorIndemnified Party in connection with any Loss or Company Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and the Indemnitee will have the right at its expense to participate shall stand in the defense; provided, however, that place of the Indemnitee will Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have the any right or claim against such third party relating to compromise or settle such Proceeding only indemnified matter. The Indemnified Party shall cooperate with the prior written Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnitor which shall not be unreasonably withheldIndemnified Party.

Defense. If any Promptly after receipt by an Indemnified Party of notice of a possible action, litigation, suit, investigationproceeding or claim referred to in Section 7.01 hereof, arbitration or other proceeding ("Proceeding") such Indemnified Party, if a claim in respect thereof is brought to be made against an Indemnitee the Indemnifying Party under such Section, shall provide the Indemnifying Party with written particulars thereof; provided that failure to provide the Indemnifying Party with such particulars shall not relieve such Indemnifying Party from any liability which it might have on account of the indemnity provided for which in this Article Seven except insofar as such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee failure shall promptly give a Notice prejudice such Indemnifying Party. The Indemnified Party shall also provide to the Indemnitor Indemnifying Party copies of all relevant documentation and, unless the Indemnifying Party assumes the defence thereof, shall keep such ProceedingIndemnifying Party advised of the progress thereof and will discuss with the Indemnifying Party all significant actions proposed. The Indemnitor shallAn Indemnifying Party shall be entitled, at its own expense, have to participate in (and, to the opportunity extent that it may wish, to assume) the defence of any such action, suit, proceeding or claim but such defence shall be represented conducted by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound good standing approved by the results obtained by Indemnified Party, such approval not to be unreasonably withheld. Upon the Indemnitee. In Indemnifying Party notifying the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days Indemnified Party of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not its election so to assume the defense of defence and retaining such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceedingcounsel, the Indemnitee will cooperate with and make available Indemnifying Party shall not be liable to the Indemnitor such assistance and materials as may be reasonably requested Indemnified Party for any legal or other expenses subsequently incurred by it at no cost in connection with such defence other than for reasonable costs of investigation. If such defence is assumed by the Indemnifying Party, it shall, through the course thereof, provide copies of all relevant documentation to the IndemnitorIndemnified Party, keep such Indemnified Party advised of the progress thereof and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only shall discuss with the prior written Indemnified Party all significant actions proposed. No Indemnifying Party shall enter into any settlement without the consent of the Indemnitor which Indemnified Party, but such consent shall not be unreasonably withheld. If such defence is not assumed by the Indemnifying Party, the Indemnifying Party shall not be liable for any settlement made without its consent, but such consent shall not be unreasonably withheld. Notwithstanding the foregoing, an Indemnified Party shall have the right, at the Indemnifying Party's expense, to employ counsel of its own choice in respect of the defence of any such action, suit, proceeding or claim if (a) the employment of such counsel has been authorized by the Indemnifying Party in connection with such defence; or (b) counsel retained by the Indemnifying Party or the Indemnified Party shall have advised the Indemnified Party that there may be legal defences available to it which are different from or in addition to those available to the Indemnifying Party (in which event and to that extent, the Indemnifying Party shall not have the right to assume or direct the defence on behalf of the Indemnified Party) or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party; or (c) the Indemnifying Party shall not have assumed such defence and employed counsel therefor within a reasonable time after receiving notice of such action, suit, proceeding or claim.

Defense. If any actionclaim, litigationdemand, suitor liability is asserted by any third party against an indemnified party, investigationthe indemnifying party shall upon written request of the Indemnified Party, arbitration defend any actions or other proceeding ("Proceeding") is proceedings brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitorthe Indemnified Party in respect of matters embraced by the indemnity, but the Indemnitee indemnified party shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity right to be represented by counsel of its choosing conduct and to assume and conduct control the defense defense, compromise or settlement of any such Proceeding upon providing a written undertaking Indemnifiable Claim if the Indemnified Party chooses to that effect to do so, on behalf of and for the Indemnitee. If, after such opportunity, account and risk of the Indemnitor or its counsel does not assume the defense of any such Proceeding, it Indemnifying Party who shall be bound by the results result so obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of extent provided herein. If after a request to defend any such Proceedingaction or proceeding, the Indemnitor Indemnifying Party neglects to defend the Indemnified Party, a recovery against the latter suffered by it in good faith, is conclusive in its favor against the Indemnifying Party, provided however that, if the Indemnifying Party has not received reasonable notice of the action or proceeding against Indemnified Party, or is not allowed to control its defense, judgment against the Indemnified Party is only presumptive evidence against the Indemnifying Party. Each Party hereto to the extent that it is or becomes an Indemnifying Party, hereby stipulates that a judgment again an Indemnified Party shall be deemed to have elected not to assume conclusive against the Indemnifying Party for purposes of the indemnification, unless specified otherwise above, the Parties shall cooperate in the defense of such Proceedingall third party claims, and in such event the Indemnitee will have the right which may give rise to conduct such defenseindemnifiable claims hereunder. In the event that the Indemnitor does elect to assume connection with the defense of such Proceedingany claim, the Indemnitee will cooperate with and each party shall make available to the Indemnitor party controlling such assistance and materials as may be defense, any books, records or other documents within its control that are reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the course of such defense and necessary or appropriate for such defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheld.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought claim against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitora third party available by virtue of the circumstances of the Loss, the Indemnitee shall promptly give a Notice Indemnity Obligor shall, by giving written notice to the Indemnitor Indemnified Party within 15 days following its receipt of the notice of such Proceeding. The Indemnitor shallclaim, assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; PROVIDED, HOWEVER, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, have unless (a) the opportunity to be represented employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect reasonably satisfactory to the Indemnitee. If, after such opportunity, the Indemnitor Indemnity Obligor that there may be one or its counsel does not assume the defense of any such Proceeding, more legal defenses available to it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice which are different from the Indemnitor within ten (10) days of having given Notice or additional to those available to the Indemnitor Indemnity Obligor and in the reasonable judgment of any such Proceedingcounsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnitor shall be deemed to have elected not Indemnity Obligor has failed to assume the defense of such Proceedingaction and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such claim, and all the parties hereto shall cooperate in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of or prosecution thereof and shall furnish such Proceedingrecords, the Indemnitee will cooperate with information and make available to the Indemnitor testimony and shall attend such assistance conferences, discovery proceedings and materials trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by it at no cost the Indemnity Obligor to the IndemnitorIndemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and the Indemnitee will have the right at its expense to participate shall stand in the defense; provided, however, that place of the Indemnitee will Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have the any right or claim against such third party relating to compromise or settle such Proceeding only indemnified matter. The Indemnified Party shall cooperate with the prior written Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnitor which shall not be unreasonably withheldIndemnified Party.

Defense. If The Indemnified Party shall permit the Indemnitor to assume the defense of such Claim and any actionlitigation resulting therefrom (and to prosecute by way of counterclaim or third party complaint any claim against such third party arising out of or relating to the Claim in question) upon receipt by the Indemnified Party of the Indemnitor's written acknowledgment of its obligation to indemnify the Indemnified Party with respect to the Claim and agreement to assume the defense of all claims or counts of such Claim. After giving such written agreement, litigation, suit, investigation, arbitration the Indemnitor shall not be liable under this Agreement for any legal or other proceeding ("Proceeding") is brought against an Indemnitee expenses subsequently incurred by the Indemnified Party in connection with such defense but the Indemnitor shall be responsible for which all such Indemnitee is or may expenses incurred by the Indemnified Party in connection with the Claim prior to the assumption of the defense by the Indemnitor. Notwithstanding the foregoing, any Indemnified Party shall be entitled to indemnification pursuant conduct its own defense at the cost and expense of the Indemnitor if the Indemnified Party can establish, by reasonable evidence, that the conduct of its defense by the Indemnitor would reasonably be likely to subparagraph 13(a) prejudice the Indemnified Party due to the nature of any claims or 13(b) from an counterclaims presented or by virtue of a conflict between the interest of the Indemnified Party and the Indemnitor, and provided further that in any event the Indemnitee shall promptly give a Notice to the Indemnitor of Indemnified Party may participate in such Proceeding. The Indemnitor shall, defense at its own expense, have the opportunity to be represented . Counsel selected by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not by the Indemnified Party to defend any Claim shall be subject to the reasonable approval of the other party. If the Indemnitor fails to assume the defense of any such Proceeding, it Claim as provided above within a reasonable time (which shall be bound by such period of time as will not, in the results obtained by reasonable judgment of the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice Indemnified Party, result in prejudice to the Indemnitor rights of any the Indemnified Party) after due notice has been given of a Claim, then until such Proceeding, time as the Indemnitor shall be deemed to have elected not to assume make such assumption, the defense of such Proceeding, and in such event the Indemnitee will Indemnified Party shall have the right to prosecute and conduct such defense. In the event that the Indemnitor does elect to assume the its own defense by counsel of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defensechoice; provided, however, that the Indemnitee will have the right to Indemnified Party may not enter into any compromise or settle such Proceeding only with settlement thereof without the prior written consent of the Indemnitor Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. Such defense shall be at the cost and expense of the Indemnitor if the Indemnitor subsequently assumes such defense as provided above, or if it is subsequently determined that the Indemnitor is or was obligated to indemnify the Indemnified Party with respect to such Claim. Notwithstanding the foregoing: (i) if a Claim seeks equitable relief; or (ii) if the subject matter of a Claim relates to the ongoing business of any of the Purchaser Indemnified Parties, which Claim, if decided against any of the Purchaser Indemnified Parties, would have a Material Adverse Effect on the ongoing business or reputation of any of the Purchaser Indemnified Parties, then, in each such case, the Purchaser Indemnified Parties alone shall be entitled to, acting as a reasonable person under similar circumstances, contest, defend and settle such Claim in the first instance and, if the Purchaser Indemnified Parties do not contest, defend or settle such Claim, the Sellers' Representative shall then have the right to contest and defend (but not settle) such Claim.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") such action is brought against an Indemnitee for which such Indemnitee is or may indemnified party, the indemnifying party will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing participate in and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect thereof to the Indemnitee. Ifextent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after such opportunity, notice from the Indemnitor or indemnifying party to such indemnified party of its counsel does not election so to assume the defense of thereof, the indemnifying party shall not be liable to such indemnified party for any such Proceeding, it shall be bound legal or other expenses subsequently incurred by the results obtained by latter in connection with the Indemnitee. In defense thereof unless the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not indemnifying party has failed to assume the defense of such Proceedingclaim and to employ counsel reasonably satisfactory to such indemnified person. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceedingany action brought against it if the indemnifying party fails to select counsel reasonably satisfactory to the indemnified party, the Indemnitee will cooperate expenses of such defense is to be paid by the indemnifying party. No indemnifying party shall consent to entry of any judgment or enter into any settlement with and make available respect to a claim without the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor indemnified party, which consent shall not be unreasonably withheld, or unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying party, without the consent of such indemnifying party, which consent shall not be unreasonably withheld.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding a claim by a third party (a "ProceedingThird Party Claim") is brought made ------- ----------------- against an SFI Indemnitee arising out of a matter for which such the SFI Indemnitee is entitled to be indemnified pursuant to Section 5 hereof, the Preferred Shareholders may elect to assume the defense or may the prosecution thereof. The Preferred Shareholders shall have 30 days (which shall be shortened to 15 days in the case of a commenced lawsuit or proceeding) after receipt of a Notice of Claim to undertake to conduct and control, through counsel of their own choosing as designated by the Shareholder Representative and at their sole risk and expense, the good faith settlement or defense of such claim, and the SFI Indemnitee(s) shall cooperate fully with the Preferred Shareholders in connection therewith; provided that the SFI Indemnitee(s) shall be entitled to -------- participate in such settlement or defense through counsel chosen by it, provided that the fees and expenses of such counsel shall be borne by the SFI Indemnitee(s); and provided further that the Preferred Shareholders can only assume the defense if (a) the amount of the Third Party Claim does not exceed the amount of the Escrow Funds held hereunder or (b) the Preferred Shareholders provide commercially reasonable evidence that the Preferred Shareholders will have sufficient financial resources to defend the claim and satisfy their indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, obligations. During the interim the SFI Indemnitee shall promptly give a Notice use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Indemnitor alleged Loss. The Preferred Shareholders shall obtain the written consent of the SFI Indemnitee prior to ceasing to defend, settling or otherwise disposing of such Proceedingclaim if as a result thereof the SFI Indemnitee would become subject to injunctive, declaratory or other equitable relief or the business of the SFI Indemnitee would be materially adversely affected in any manner. Whether or not the Preferred Shareholders choose so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Such cooperation shall include the retention and the provision of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information. The Indemnitor shall, at its own expense, have the opportunity to Preferred Shareholders shall not be represented by counsel of its choosing and to assume and conduct the defense liable for any settlement of any such Proceeding upon providing a claim effected without their prior written undertaking consent, which shall not be unreasonably withheld. However, if the Preferred Shareholders, fail to that effect defend such claim within the time period necessary to preserve the rights and defense of the SFI Indemnitee, the SFI Indemnitee will have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the Preferred Shareholders, subject to the Indemnitee. If, after such opportunity, right of the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not Preferred Shareholders to assume the defense of such Proceedingclaim at any time within the 30-day time period after receiving Notice of Claim. If a claim is based on any suit or proceeding by a third party for infringement which gives rise to an IP Claim (defined in Section 5) resulting in SFI's use of the Software (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, and in such event the Indemnitee will have Preferred Shareholders, if the right to conduct such defense. In Preferred Shareholders elect through the event that the Indemnitor does elect Shareholder Representative to assume the defense of such Proceedingproceeding after receiving notice hereunder, shall be entitled at their sole expense to do any of the Indemnitee will cooperate with following: (i) procure for SFI, Clarus CSA, Inc. and make available their licensees the unrestricted right to continue using the Software, (ii) modify the Software so that it becomes noninfringing, (iii) settle the third party's infringement claim in a manner that gives SFI, Clarus CSA, Inc. and their licensees the unrestricted rights to the Indemnitor such assistance and materials software being enjoined or otherwise restricted, or (iv) pay the indemnified party's claim as may be reasonably requested by it at no cost to the Indemnitorprovided in this Agreement, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, provided that the Indemnitee will have the right to compromise or settle such Proceeding only with the any settlement under this sentence shall require SFI's prior written consent of the Indemnitor approval which shall not be unreasonably withheld. SFI shall comply with any settlement or court order made in connection with such proceeding in the foregoing sentence provided that such compliance by SFI shall not limit the Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld. Before any claim may be brought against any of the Preferred Shareholders hereunder, or under the Merger Agreement, all the Escrow Funds shall be used first to pay any claims made under Article IX of the Merger Agreement or this Agreement, and SFI hereby authorizes the Preferred Shareholders to settle such claims without consent of SFI to the extent the Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim for which they are liable hereunder without consent of SFI so long as the payment or performance does not either (y) exhaust the Escrow Funds or (y) exceed the maximum liability amounts set forth below. Settlements requiring performance or payment in excess of the maximum liability amounts shall require SFI's prior written consent.

Defense. If With respect to any actionProceeding as to which Indemnitee notifies Tyco International plc and Tyco Management of the commencement thereof, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may Tyco International plc will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, participate in the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, Proceeding at its own expenseexpense and except as otherwise provided below, have to the opportunity extent Tyco International plc so wishes, it may assume the defense thereof with counsel reasonably satisfactory to be represented by counsel Indemnitee. After notice from Tyco International plc to Indemnitee of its choosing and election to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any Proceeding, Tyco International plc shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ legal counsel in such Proceeding, it but all Expenses related thereto incurred after notice from Tyco International plc of its assumption of the defense shall be bound at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by Tyco International plc, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Tyco International plc in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the results obtained by the Indemnitee. In the event that the Indemnitee does Independent Counsel, or (iv) Tyco International plc shall not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to in fact have elected not employed counsel to assume the defense of such Proceeding, and in such event each of which cases all Expenses of the Indemnitee will have Proceeding shall be borne by Tyco International plc to the right to conduct such defensefullest extent permitted by law. In the event that the Indemnitor does elect Tyco International plc shall not be entitled to assume the defense of such Proceedingany Proceeding (x) brought by or on behalf of Tyco Management or Tyco International plc, (y) as to which Indemnitee shall have made the Indemnitee will cooperate with and make available to determination provided for in (ii) above or (z) after a Change in Control (it being specified, for the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, howeveravoidance of doubt, that the Indemnitee will have the right to compromise or settle Tyco International plc may assume defense of any such Proceeding only proceeding described in this sentence with the prior written Indemnitee’s consent, provided that any such consent of the Indemnitor which shall not be unreasonably withheldaffect the rights of Indemnitee under the foregoing provisions of this Section 6(b)).

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") such action is brought against an Indemnitee for which such Indemnitee is or may indemnified party, the indemnifying Party will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing participate in and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect thereof to the Indemnitee. Ifextent that it may wish, and after notice from the indemnifying Party to such opportunity, indemnified party of the Indemnitor or its counsel does not indemnifying Party’s election to assume the defense of thereof, the indemnifying Party shall not be liable to such indemnified party for any such Proceeding, it shall be bound legal or other expenses subsequently incurred by the results obtained by latter in connection with the Indemnitee. In defense thereof unless the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not indemnifying Party has failed to assume the defense of such Proceedingclaim. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of any action brought against it if the indemnifying Party fails to assume such Proceedingdefense, the Indemnitee expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and make available assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor indemnified party, which consent shall not be unreasonably withheld., delayed or conditioned, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld. PURCHASE AND SALE AGREEMENT 35

Defense. If With respect to any actionProceeding as to which Indemnitee notifies Covidien plc and Covidien Ltd. of the commencement thereof, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may Covidien plc will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, participate in the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, Proceeding at its own expenseexpense and except as otherwise provided below, have to the opportunity extent Covidien plc so wishes, it may assume the defense thereof with counsel reasonably satisfactory to be represented by counsel Indemnitee. After notice from Covidien plc to Indemnitee of its choosing and election to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any Proceeding, Covidien plc shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ legal counsel in such Proceeding, it but all Expenses related thereto incurred after notice from Covidien plc of its assumption of the defense shall be bound at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by Covidien plc, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Covidien plc in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the results obtained by the Indemnitee. In the event that the Indemnitee does Independent Counsel, or (iv) Covidien plc shall not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to in fact have elected not employed counsel to assume the defense of such Proceeding, and in such event each of which cases all Expenses of the Indemnitee will have the right to conduct such defenseProceeding shall be borne by Covidien plc. In the event that the Indemnitor does elect Covidien plc shall not be entitled to assume the defense of such Proceedingany Proceeding (x) brought by or on behalf of Covidien Ltd. or Covidien plc, (y) as to which Indemnitee shall have made the Indemnitee will cooperate with and make available to determination provided for in (ii) above or (z) after a Change in Control (it being specified, for the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, howeveravoidance of doubt, that the Indemnitee will have the right to compromise or settle Covidien plc may assume defense of any such Proceeding only proceeding described in this sentence with the prior written Indemnitee’s consent, provided that any such consent of the Indemnitor which shall not be unreasonably withheldaffect the rights of Indemnitee under the foregoing provisions of this Section 6(b)).

Defense. If the facts pertaining to a Loss by a Buyer Indemnified Party or a Company Indemnified Party, as the case may be, arise out of the claim of any actionthird party, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") if there is brought any claim against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitora third party available by virtue of the circumstances of the Loss, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not applicable Indemnifying Party may assume the defense of any such Proceeding, it shall be bound or the prosecution thereof by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from to such Buyer Indemnified Party or Seller Indemnified Party, including the Indemnitor within ten (10) days employment of having given Notice counsel or accountants reasonably satisfactory to such Buyer Indemnified Party or Seller Indemnified Party, at the Indemnitor of any such Proceeding, the Indemnitor Indemnifying Party's cost and expense. Such Buyer Indemnified Party or Seller Indemnified Party shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct employ counsel separate from counsel employed by such defense. In Indemnifying Party in any such action and to participate therein, but the event that the Indemnitor does elect to assume the defense fees and expenses of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor counsel employed by such assistance and materials as may Buyer Indemnified Party or Seller Indemnified Party shall be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld. The Indemnifying Party shall not agree to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with a settlement of any claim without the prior written consent of the Indemnitor Buyer Indemnified Party or Seller Indemnified Party, as the case may be, which shall consent will not be unreasonably withheld. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Buyer Indemnified Party or Seller Indemnified Party, as the case may be.

Defense. If any a third‑party action, litigation, suit, investigation, arbitration claim or other proceeding demand ("Proceeding"a “Third Party Claim”) is brought against an involved, then, upon receipt of the Indemnification Notice, the Indemnitor shall have fifteen (15) calendar days after said notice is given to elect, by written notice given to the Indemnitee, to undertake, conduct and control, through counsel of its own choosing which is reasonably acceptable to the Indemnitee for and at its sole risk and expense, the good faith settlement or defense of such claim, and the Indemnitee shall cooperate with the Indemnitor in connection therewith; provided: (a) all settlements require the prior reasonable consultation with the Indemnitee and the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, provided that the Indemnitor may settle any such claim without the prior consent of the Indemnitee is or may if such settlement involves the full release of the Indemnitee and the Indemnitor agrees to pay all amounts payable pursuant to such settlement, and (b) the Indemnitee shall be entitled to indemnification pursuant to subparagraph 13(a) participate in such settlement or 13(b) from an Indemnitordefense through counsel chosen by the Indemnitee (the fees and expenses of such counsel shall be borne by the Indemnitee). So long as the Indemnitor is contesting any such claim in good faith, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of not pay or settle any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defenseclaim; provided, however, that notwithstanding the foregoing, the Indemnitee will shall have the right to pay or settle any such claim at any time; provided, that in such event, the Indemnitee shall waive any right of indemnification therefor by the Indemnitor. If the Indemnitor does not make a timely election to undertake the good faith defense or settlement of the claim as aforesaid, or if the Indemnitor fails to proceed with the good faith defense or settlement of the matter after making such election, then, in either such event, the Indemnitee shall have the right to contest, settle or compromise the claim at its exclusive discretion, retaining its right to seek indemnification from Indemnitor. In addition, if an Indemnitee (a) determines in good faith that a Third Party Claim may materially and adversely affect it or any of its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or (b) in the good faith opinion of counsel of such party concludes that there are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnitor, the Indemnitee may, by notice to the Indemnitor, retain the exclusive right to defend, compromise or settle such Proceeding only Third Party Claim, retaining its right to seek indemnification from Indemnitor. In any event, the Indemnitor and the Indemnitee shall fully cooperate with each other in connection with the prior written consent of defense, including by furnishing all available documentary or other evidence as is reasonably requested by the Indemnitor which shall not be unreasonably withheldother party.

Defense. If any actionclaim, litigationdemand or liability is asserted by any third party against any Indemnified Party, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may the Indemnifying Party shall be entitled to indemnification pursuant participate therein and defend any action or proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity, and the Indemnifying Party shall have the right to subparagraph 13(a) or 13(b) from an Indemnitor, conduct and control the Indemnitee shall promptly give a Notice defense subject to the Indemnitor Indemnified Party's approval in writing of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by outside counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound selected by the results obtained by the IndemniteeIndemnifying Party. In the event that the Indemnitee does not receive written After notice from the Indemnitor within ten (10) days of having given Notice Indemnifying Party to the Indemnitor Indemnified Party of any such Proceeding, the Indemnitor shall be deemed to have elected not its election to assume the defense of such Proceedingclaim or action, and the Indemnifying Party shall not be liable to the Indemnified Party under this Section 10 for any legal or other expenses subsequently incurred by the Indemnified Party in such event connection with the Indemnitee will defense thereof other than reasonable costs of investigation. In any action defended by the Indemnifying Party the Indemnified Party shall have the right to conduct be represented by its own counsel at its own expense unless (1) the employment of such defensecounsel shall have been authorized in writing by the Indemnifying Party or (2) the Indemnifying Party shall not have properly employed counsel reasonably satisfactory to such Indemnified Party to have charge of the defense of such action; in each of such cases such fees and expenses shall be paid by the Indemnifying Party. In addition, if the event named parties to any such action, suit or proceeding (including any impleaded parties) shall include both such Indemnified Party and Indemnifying Party, and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from, or additional to, those available to the Indemnitor does elect Indemnifying Party, and if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such Proceedingaction, the Indemnitee will cooperate with and make available to the Indemnitor suit or proceeding on behalf of such assistance and materials as may be reasonably requested by it at no cost to the IndemnitorIndemnified Party, and the Indemnitee will have the right at its expense to Indemnified Party may participate in the defensedefense of such action, suit or proceeding and such fees and expenses shall be paid by the Indemnifying Party; providedit being understood, however, that the Indemnitee Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel for all such Indemnified Parties). The Indemnifying Party will have not, without Indemnified Party's written consent, settle or compromise any indemnifiable claim or consent to the right to entry of any judgment in respect thereof unless such settlement, compromise or settle such Proceeding only with the prior written consent includes an unconditional release of the Indemnitor Indemnified Party from all liability in respect of such Indemnifiable Claim. The parties shall cooperate in the defense of all third party claims which shall not be unreasonably withheldmay give rise to Indemnifiable Claims hereunder.

Defense. If any actionthe facts pertaining to an indemnification loss arise out of the claim of a third party (other than Parent and its Affiliates, litigationon the one hand and Shareholder and his Affiliates, suiton the other, investigation, arbitration or other proceeding ("Proceeding") whichever is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(afor such matter) or 13(b) from an Indemnitorand indemnification is available by virtue of the circumstances of the indemnification loss, the Indemnitee shall promptly give a Notice Indemnifying Party has the right, to be exercised by delivering written notice to the Indemnitor Indemnified Party within thirty (30) days of such Proceeding. The Indemnitor shallreceipt of a Required Notice, to assume and control the defense or the prosecution thereof, including the employment of counsel or accountants, at its own expense. The assumption of the defense of an indemnification claim by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the Indemnified Party in respect of such indemnification claim, have nor shall it constitute a waiver by the opportunity to be represented by counsel Indemnifying Party of its choosing and to assume and conduct any defenses it may assert against the Indemnified Party’s claim for indemnification If the Indemnifying Party assumes the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunitythird party claim or litigation, the Indemnitor obligations of the Indemnifying Party under this Agreement shall include taking all steps necessary in the investigation, defense or its counsel does not assume settlement of such claim or litigation (including the defense retention of legal counsel) and holding the Indemnified Party harmless from and against any and all losses caused by or arising out of any such Proceeding, it shall be bound settlement approved by the results obtained by the IndemniteeIndemnified Party or any judgment in connection with such claim or litigation. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such ProceedingThe Indemnifying Party shall not, the Indemnitor shall be deemed to have elected not to assume in the defense of such Proceedingclaim or litigation, consent to entry of any judgment (except with the written consent of the Indemnified Party), or enter into any settlement (except with the written consent of the Indemnified Party): (a) that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a complete release from, all liability in respect of such claim or litigation; or (b) the effect of which is to permit any injunction, declaratory judgment, other order or other equitable relief to be entered, directly or indirectly, against any Indemnified Party. The Indemnifying Party shall permit the Indemnified Party to participate in such defense or settlement through counsel chosen by the Indemnified Party, with the fees and expenses of such counsel borne by the Indemnified Party. Whether or not the Indemnifying Party chooses to so defend or prosecute any such indemnification claim, all the parties hereto shall cooperate in good faith and in a reasonable manner in the defense or prosecution thereof and shall furnish such records, materials, information, witnesses and testimony, and in attend such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceedingconferences, the Indemnitee will cooperate with discovery proceedings, hearings, trials and make available to the Indemnitor such assistance and materials appeals, as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheldconnection therewith.

Defense. If any a third‑party action, litigation, suit, investigation, arbitration claim or other proceeding demand ("Proceeding"a “Third Party Claim”) is brought against an involved, then, upon receipt of the Indemnification Notice, the Indemnitor shall have fifteen (15) calendar days after said notice is given to elect, by written notice given to the Indemnitee, to undertake, conduct and control, through counsel of its own choosing which is reasonably acceptable to the Indemnitee for and at its sole risk and expense, the good faith settlement or defense of such claim, and the Indemnitee shall cooperate with the Indemnitor in connection therewith; provided: (a) all settlements require the prior reasonable consultation with the Indemnitee and the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, provided that the Indemnitor may settle any such claim without the prior consent of the Indemnitee is or may if such settlement involves the full release of the Indemnitee and the Indemnitor agrees to pay all amounts payable pursuant to such settlement, and (b) the Indemnitee shall be entitled to indemnification pursuant to subparagraph 13(a) participate in such settlement or 13(b) from an Indemnitordefense through counsel chosen by the Indemnitee (the fees and expenses of such counsel shall be borne by the Indemnitee). So long as the Indemnitor is contesting any such claim in good faith, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of not pay or settle any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defenseclaim; provided, however, that notwithstanding the foregoing, the Indemnitee will shall have the right to pay or settle any such claim at any time; provided, that in such event, the Indemnitee shall waive any right of indemnification 58 therefor by the Indemnitor. If the Indemnitor does not make a timely election to undertake the good faith defense or settlement of the claim as aforesaid, or if the Indemnitor fails to proceed with the good faith defense or settlement of the matter after making such election, then, in either such event, the Indemnitee shall have the right to contest, settle or compromise the claim at its exclusive discretion, retaining its right to seek indemnification from Indemnitor. In addition, if an Indemnitee (a) determines in good faith that a Third Party Claim may materially and adversely affect it or any of its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or (b) in the good faith opinion of counsel of such party concludes that there are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnitor, the Indemnitee may, by notice to the Indemnitor, retain the exclusive right to defend, compromise or settle such Proceeding only Third Party Claim, retaining its right to seek indemnification from Indemnitor. In any event, the Indemnitor and the Indemnitee shall fully cooperate with each other in connection with the prior written consent of defense, including by furnishing all available documentary or other evidence as is reasonably requested by the Indemnitor which shall not be unreasonably withheld.other party. (c)

Defense. If any actionclaim, litigationdemand or liability is asserted by any third party against any Indemnified Party, suitthe Indemnifying Party shall have the right and shall upon the written request of the Indemnified Party, investigation, arbitration or other proceeding ("Proceeding") is defend any Actions brought against an Indemnitee for which the Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, in the case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. In any such Indemnitee is action or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitorproceeding, the Indemnitee Indemnified Party shall promptly give a Notice have the right to retain its own counsel, but the Indemnitor fees and expenses of such Proceeding. The Indemnitor shall, counsel shall be at its own expenseexpense unless (a) the Indemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, have or (b) the opportunity named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be represented by counsel inadvisable due to potential conflicts of its choosing interests between them. The Parties shall cooperate and to assume and conduct may participate in the defense of any such Proceeding upon providing a written undertaking all third-party claims which may give rise to that effect to Indemnifiable Claims hereunder. If the Indemnitee. IfIndemnifying Party assumes the defense, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, (i) it shall be bound conclusively established for purposes of this Agreement that the claims made in the Action are within the scope of and subject to indemnification, but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b), and (ii) no compromise or settlement of such claims may be effected by the results obtained Indemnifying Party without the Indemnified Party's written consent (which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by the IndemniteeIndemnifying Party. In the event that the Indemnitee does not receive If written notice from is given to an Indemnifying Party of the Indemnitor commencement of any Action and the Indemnifying Party does not, within ten twenty (1020) days of having given Notice after the Indemnified Party's written notice is given, give written notice to the Indemnitor Indemnified Party of any such Proceeding, the Indemnitor shall be deemed to have elected not its election to assume the defense of such ProceedingAction, and the Indemnifying Party shall be bound by any determination made in such event Action or any compromise or settlement effected by the Indemnitee will have the right to conduct such defenseIndemnified Party. In the event that the Indemnitor does elect to assume connection with the defense of such Proceedingany claim, the Indemnitee will cooperate with and each Party shall make available to the Indemnitor Party controlling such assistance and materials as may be defense, any books, records or other documents within its control that are reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the course of or necessary or appropriate for such defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheld. 8.3.3.

Defense. If Upon demand by any actionIndemnified Party, litigation, suit, Xxxxxxxx will defend any investigation, arbitration action or other proceeding ("Proceeding") involving any Indemnified Costs that is brought against an Indemnitee for which such Indemnitee is any Indemnified Party, whether alone or may be entitled to indemnification pursuant to subparagraph 13(a) together with Borrower or 13(b) from an Indemnitorany other person or entity, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, all at its Borrower’s own expense, have the opportunity cost and by counsel to be represented approved by the Indemnified Party. In connection therewith, Xxxxxxxx will pay for the cost and expense of any counsel of hired or engaged by an Indemnified Party to protect its choosing and interest and/or to assume and conduct the oversee any defense of any such Proceeding upon providing a written undertaking to that effect to the IndemniteeIndemnified Party by Xxxxxxxx and its counsel. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it Each Indemnified Party shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct employ separate counsel in any such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with action or proceeding and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defenseinvestigation and defense thereof, and Borrower shall pay the reasonable fees and expenses of such separate counsel; provided, however, that such Indemnified Party may only employ separate counsel at the Indemnitee expense of Borrower if in the judgment of such Indemnified Party a conflict of interest exists or could arise by reason of common representation or if all parties commonly represented do not agree as to the action (or inaction) of counsel. Xxxxxxxx will not settle or compromise a claim asserted against an Indemnified Party without the approval of that Indemnified Party. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, Xxxxxxxx, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel acceptable to the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheldsettlement.

Defense. If the facts relating to a Loss arise out of the claim of any actionthird party, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") if there is brought any claim against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitora third party available by virtue of the circumstances of the Loss, the Indemnitee shall promptly give a Notice Indemnity Obligor may, by giving written notice to the Indemnitor Indemnified Party within 15 days following its receipt of the notice of such Proceedingclaim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its commercially reasonable efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnitor shallIndemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at its the Indemnified Party's own expense, have unless (i) the opportunity to be represented employment thereof has been specifically authorized by the Indemnity Obligor, (ii) such Indemnified Party has been advised by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect reasonably satisfactory to the Indemnitee. If, after such opportunity, the Indemnitor Indemnity Obligor that there may be one or its counsel does not assume the defense of any such Proceeding, more legal defenses available to it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice which are different from the Indemnitor within ten (10) days of having given Notice or additional to those available to the Indemnitor Indemnity Obligor and in the reasonable judgment of any such Proceedingcounsel it is advisable for such Indemnified Party to employ separate counsel, or (iii) the Indemnitor shall be deemed to have elected not Indemnity Obligor has failed to assume the defense of such Proceedingaction and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, and all the parties hereto shall cooperate in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of or prosecution thereof and shall furnish such Proceedingrecords, the Indemnitee will cooperate with information and make available to the Indemnitor testimony and shall attend such assistance conferences, discovery proceedings and materials trials as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by it at no cost the Indemnity Obligor to the IndemnitorIndemnified Party in connection with any Loss arising out of a third party claim, the Indemnity Obligor shall be subrogated to and the Indemnitee will have the right at its expense to participate shall stand in the defense; provided, however, that place of the Indemnitee will Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have the any right or claim against such third party relating to compromise or settle such Proceeding only Loss. The Indemnified Party shall cooperate with the prior written Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnitor which shall not be unreasonably withheldIndemnified Party.

Defense. If Promptly after receipt by an Indemnified Person of notice of any action, litigation, claim or demand or the commencement of any suit, investigation, arbitration action or other proceeding ("Proceeding") is brought against an Indemnitee for by any third party with respect to which such Indemnitee is or indemnification may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitorsought hereunder, the Indemnitee such Indemnified Person shall promptly give a Notice to notify in writing the Indemnitor of such Proceedingclaim or demand or the commencement of such suit, action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. The If the Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunityshall so elect, the Indemnitor or its counsel does not shall assume the defense of any such Proceedingclaim, it demand, action, suit or proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall be bound by pay the results obtained by the Indemniteefees and disbursements of such counsel. In the event event, however, that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days such Indemnified Person shall reasonably determine that having common counsel would present such counsel with a conflict of having given Notice interest or alternative defenses shall be available to the Indemnitor of any such Proceeding, an Indemnified Person or if the Indemnitor shall be deemed to have elected not fail to assume the defense of the claim, demand, action, suit or proceeding in a timely manner, then such ProceedingIndemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action, suit or proceeding and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume shall pay the defense reasonable fees and disbursements of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defensecounsel; provided, however, that the Indemnitee will Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action, suit or proceeding. For any claim, demand, action, suit or proceeding the defense of which the Indemnitor shall assume, the Indemnified Person shall have the right to compromise participate therein and to retain its own counsel at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 12.4), so long as such participation does not interfere with the Indemnitor's control of such claim, demand, action, suit or settle such Proceeding only with proceeding. The Indemnitor shall not, without the prior written consent of the Indemnitor Indemnified Person, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder unless such settlement, compromise or consent shall include an unconditional release of such Indemnified Person from all liability arising out of such xxx claim, demand, action, suit or proceeding and would not be unreasonably withheldprohibit, restrict or impair the Indemnified Person from engaging in any business.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding"So long as the conditions set forth in Section 8.4(a)(i) is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not Indemnifying Party to assume the defense of a Third Party Claim are and remain satisfied and the Indemnifying Party is vigorously defending such ProceedingThird Party Claim, and in such event the Indemnitee will have the right to Indemnifying Party may conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available Third Party Claim to the Indemnitor such assistance extent permitted by this Agreement. The Indemnified Party may retain separate co-counsel at its sole cost and materials as may be reasonably requested by expense to represent it at no cost to in connection with the IndemnitorThird Party Claim, and the Indemnitee will have Indemnifying Party shall cooperate, and cause the right counsel selected by the Indemnifying Party to cooperate, with such co-counsel in connection with the response, defense and settlement of the Third Party Claim and any related suit or proceeding. If there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, as advised in writing by outside counsel to the Indemnified Party, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain one separate counsel in each jurisdiction for which the Indemnified Party reasonably determines counsel is required, which counsel shall be reasonably acceptable to the Indemnifying Party, at its the expense to participate in of the defense; providedIndemnifying Party. The Indemnifying Party shall not, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with without the prior written consent of the Indemnitor Indemnified Party (which consent shall not be unreasonably withheldwithheld or delayed), admit any Liability with respect to, settle, compromise or discharge the Third Party Claim if the admission, settlement, compromise or discharge (i) imposes anything, including the imposition of an injunction or other equitable relief upon the Indemnified Party, other than monetary damages fully indemnified and paid by the Indemnifying Party, (ii) does or would reasonably be expected to interfere with or adversely affect the business, operations or assets of the Indemnified Party or any of its Affiliates, (iii) does not include an unconditional provision whereby the plaintiff or claimant in the matter completely and unconditionally releases the Indemnified Party and its Affiliates from all Liability with respect to such matter, with prejudice, (iv) involves Taxes or (v) would result in the finding or admission of any violation of Law or Governmental Order by the Indemnified Party. With respect to the defense of any Third Party Claim, the party responsible for the defense of the Third Party Claim shall, to the extent reasonably requested by the other party, keep such other party informed as to the status of such claim, including all settlement negotiations and offers and shall: (A) conduct the defense of the Third Party Claim actively and vigorously and keep the other Party fully informed of material developments in the Third Party Claim at all stages thereof, (B) promptly submit to the other Party copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (C) permit the other Party and its counsel to confer on the conduct of the defense thereof, and (D) permit the other Party and its counsel an opportunity to review and comment on, which comments the Indemnifying Party shall reasonably consider, all legal papers to be submitted prior to their submission.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an IndemnitorIn the case of a third party claim, the Indemnitee shall promptly give a Notice Indemnifying Party may participate in the defense thereof and, if it so chooses and acknowledges its obligation to indemnify the Indemnified Party therefore, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnitor Indemnified Party. In all cases, the party without the right to control the defense of such Proceeding. The Indemnitor shall, the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, have the opportunity Indemnifying Party shall inform the Indemnified Party within 14 days of receiving the written notice seeking indemnification whether the party elects to be represented by counsel of its choosing and to assume and conduct control the defense and acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any such Proceeding upon providing a written undertaking to period during which the Indemnifying Party has not assumed the defense thereof, provided that effect it either acknowledges in writing its indemnity obligations with respect to the IndemniteeIndemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If, after such opportunityIf the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the Indemnitor parties shall endeavor in good faith to settle such dispute. The Indemnifying Party shall not settle or its counsel compromise a third party claim or legal proceeding without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that is an Excluded Liability, except that any Indemnifiable Claim relating to Hazardous Substances remain subject in all respect to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any third party claim or litigation resulting therefrom within 14 days after the date it receives notice of such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice claim from the Indemnitor within ten (10) days of having given Notice Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnitor Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or the Purchaser Indemnitors, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or the Purchaser Indemnitors, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such ProceedingIndemnifiable Claim and how such defense and settlement will be handled, the Indemnitor shall be deemed to have elected not to assume (C) cooperate with each other in the defense and settlement of such ProceedingIndemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume (E) treat the defense and settlement of such Proceeding, the Indemnitee will cooperate with Indemnifiable Claim as a joint and make available common defense pursuant to the Indemnitor such assistance Joint Defense and materials Common Interest Agreement dated as may be reasonably requested by it at no cost to the Indemnitorof October 8, 2003, as amended, between Dynegy and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheldExelon.

Defense. If any actionThe Representative shall have the right, litigation, suit, investigation, arbitration or other proceeding at its option ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice subject to the Indemnitor of such Proceeding. The Indemnitor shall, limitations set forth in Section 9.2(c) below) and at its own expense, have by written notice to Parent (which notice shall not constitute an admission or agreement that indemnification is owed to the opportunity Parent Indemnitees hereunder), to be represented by assume the entire control of, subject to the right of Parent to participate (at its expense and with counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunitychoice) in, the Indemnitor defense, compromise or its counsel does not assume settlement of the defense Third Party Claim as to which such Notice of any such ProceedingClaim has been given, it and shall be bound by entitled to appoint a recognized and reputable counsel reasonably acceptable to Parent to be the results obtained by lead counsel in connection with such defense. If the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not Representative is permitted and elects to assume the defense of such Proceeding, a Third Party Claim: (i) the Representative shall diligently and in good faith defend such event Third Party Claim and shall keep Parent reasonably informed of the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense status of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will Parent shall have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor approve any settlement, which shall approval will not be unreasonably withheld, delayed or conditioned; and (ii) Parent and Merger Sub shall cooperate fully in all respects with the Representative in any such defense, compromise or settlement thereof, including, without limitation, the selection of counsel, and Parent and Merger Sub shall as promptly as practicable make available to the Representative all pertinent information and documents under its control. Notwithstanding the foregoing and anything to the contrary herein, in the event that the Representative provides prior written notice to Parent of any settlement or compromise of, or offer to settle or compromise, any third-party claim and Parent or Merger Sub withholds its consent to such settlement or compromise then, in the event indemnification is ultimately determined to be owing to a Parent Indemnitee hereunder, in no event shall indemnification be provided to the Parent Indemnitees in respect of such matter in an amount greater than the monetary amount contained in such settlement or compromise of, or offer to settle or compromise, any third-party claim.

Defense. If the matter with respect to which a Party seeks indemnification (the "Indemnitee") involves a claim asserted against the Indemnitee by a third party, promptly after receipt by the Indemnitee of notice of the commencement of any action, litigation, suit, investigation, arbitration or it will notify the other proceeding Party (the "ProceedingIndemnitor") in writing of the commencement thereof but the omission so to notify the Indemnitor will not relieve the Indemnitor from any liability which it may have to the Indemnitee unless the Indemnitor is prejudiced by such omission. In case any such action shall be brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee and it shall promptly give a Notice to notify the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceedingcommencement thereof, the Indemnitor shall be deemed entitled to have elected not participate in, and, to the extent that it may wish to assume the defense of such Proceedingthereof, with counsel satisfactory to the Indemnitee, and in such event after notice from the Indemnitor to the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect of its election to assume the defense thereof, the Indemnitor shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof unless (i) the Indemnitee shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to this sentence, (ii) the Indemnitor shall not have employed counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time, (iii) the Indemnitor and its counsel do not actively and vigorously pursue the defense of such Proceedingaction, or (iv) the Indemnitor has authorized the employment of counsel for the Indemnitee will cooperate with and make available to at the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to expense of the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will shall have the right to compromise employ counsel to represent it if, in its reasonable judgment, it is advisable for it to be represented by separate counsel because separate defenses are available, or settle because a conflict of interest exists between the Indemnitee and the Indemnitor in respect to such Proceeding only with claim, and in such event the prior written fees and expenses of such separate counsel shall be paid by the Indemnitor. In such circumstance, the Indemnitee shall designate the counsel. The Indemnitor will not be liable to the Indemnitee for any settlement of any action or claim without the consent of the Indemnitor and the Indemnitor may not unreasonably withhold its consent to any settlement. The Indemnitor will not consent to entry of any judgment or enter into any settlement or compromise any claim which shall does not be unreasonably withheldinclude as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a full release from all liability with respect to such claim or litigation.

Defense. The Indemnified Party and the Indemnifying Party shall cooperate with the party assuming the defense, compromise or settlement of any such Action in accordance herewith in any manner that such party reasonably may request. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct Indemnifying Party so assumes the defense of any such Proceeding upon providing a written undertaking Action, the Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnified Party unless (a) the Indemnifying Party has specifically agreed to pay such fees and expenses, (b) any relief other than the payment of money damages is sought against the Indemnified Party or (c) the Indemnified Party shall have been advised by its counsel that effect there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnitee. If, after such opportunity, Indemnifying Party or that there may be a conflict of interest between the Indemnitor or its counsel does not assume Indemnifying Party and the defense Indemnified Party in the conduct of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and Action (in such event either of which cases the Indemnitee will Indemnifying Party shall not have the right to conduct such direct the defense. In the event that the Indemnitor does elect to assume the defense , compromise or settlement of such Proceeding, Action on behalf of the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the IndemnitorIndemnified Party), and in any such case the Indemnitee will have reasonable fees and expenses of such separate counsel shall be borne by the right at its expense to participate in the defense; providedIndemnifying Party, it being understood and agreed, however, that the Indemnitee will have Indemnifying Party shall not be liable for the right to fees and expenses of more than one separate firm of attorneys at any time for the Indemnified Party together with its Affiliates, unless there shall be a conflict of interest between the Indemnified Party and an Affiliate thereof, in which case the Indemnifying Party shall not be liable for the fees and expenses of more than an aggregate of two separate firms of attorneys at any time for the Indemnified Party and its Affiliates. No Indemnified Party shall settle or compromise or settle consent to entry of any Judgment with respect to any such Proceeding only with Action for which it is entitled to indemnification hereunder without the prior written consent of the Indemnitor Indemnifying Party, unless the Indemnifying Party shall have failed, after reasonable notice thereof, to undertake control of such Action in the manner provided above in this Section 7.4. The Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise or consent to entry of any Judgment with respect to any such Action (x) in which shall any relief other than the payment of money damages is or may be sought against any Indemnified Party, or (y) that does not be unreasonably withheldinclude as an unconditional term thereof the giving by the claimant, party conducting such investigation, plaintiff or petitioner to such Indemnified Party of a release from all liability with respect to such Action.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought Indemnified Party learns of any matter which may give rise to a claim for indemnification against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(aIndemnifying Party under this Article XI, then the Indemnified Party shall notify the Indemnifying Party thereof promptly and in any event within five (5) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of Business Days after receiving any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defensea third party; provided, however, that no delay on the Indemnitee will part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is materially prejudiced thereby. Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense thereof, defend against the matter in any manner it reasonably may deem appropriate. In the event the Indemnifying Party notifies the Indemnified Party (after the date the Indemnified Party has given notice of the matter) that the Indemnifying Party is assuming the defense of such matter, the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to compromise employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party shall not have employed counsel to fully and properly take charge of the defense of such action within a reasonable time after notice of commencement of the action or settle (iii) the Indemnified Party shall have reasonably concluded that there are defenses available to it that are different from or additional to those available to one or more of the Indemnifying Parties (in which case the Indemnifying Parties shall not have the right to direct the defense of such Proceeding only action on behalf of the Indemnified Party with respect to such different defenses), in any of which events such fees and expenses shall be borne by the prior Indemnifying Party. Assumption of the defense of any matter by the Indemnifying Party shall not prejudice the right of the Indemnifying Party to claim at a later date that such third party action is not a proper matter for indemnification pursuant to this Article XI. The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification without the written consent of the Indemnitor Indemnifying Party, which consent shall not be unreasonably withheldwithheld or delayed. The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Damages with respect thereto, without the written consent of the Indemnified Party (not to be unreasonably withheld or delayed).

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought claim against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitora third party available by virtue of the circumstances of the Loss, the Indemnitee shall promptly give a Notice Indemnity Obligor may, by giving written notice to the Indemnitor Indemnified Party within 15 days following its receipt of the notice of such Proceeding. The Indemnitor shallclaim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, have unless (a) the opportunity to be represented employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect reasonably satisfactory to the Indemnitee. If, after such opportunity, the Indemnitor Indemnity Obligor that there may be one or its counsel does not assume the defense of any such Proceeding, more legal defenses available to it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice which are different from the Indemnitor within ten (10) days of having given Notice or additional to those available to the Indemnitor Indemnity Obligor and in the reasonable judgment of any such Proceedingcounsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnitor shall be deemed to have elected not Indemnity Obligor has failed to assume the defense of such Proceedingaction and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, and all the parties hereto shall cooperate in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of or prosecution thereof and shall furnish such Proceedingrecords, the Indemnitee will cooperate with information and make available to the Indemnitor testimony and shall attend such assistance conferences, discovery proceedings and materials trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by it at no cost the Indemnity Obligor to the IndemnitorIndemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and the Indemnitee will have the right at its expense to participate shall stand in the defense; provided, however, that place of the Indemnitee will Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have the any right or claim against such third party relating to compromise or settle such Proceeding only indemnified matter. The Indemnified Party shall cooperate with the prior written Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in 44 connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnitor which shall not be unreasonably withheldIndemnified Party.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought claim against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitora third party available by virtue of the circumstances of the Loss, the Indemnitee shall promptly give a Notice Indemnity Obligor may, by giving written notice to the Indemnitor Indemnified Party within 15 days following its receipt of the notice of such Proceeding. The Indemnitor shallclaim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, have unless (a) the opportunity to be represented employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect reasonably satisfactory to the Indemnitee. If, after such opportunity, the Indemnitor Indemnity Obligor that there may be one or its counsel does not assume the defense of any such Proceeding, more legal defenses available to it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice which are different from the Indemnitor within ten (10) days of having given Notice or additional to those available to the Indemnitor Indemnity Obligor and in the reasonable judgment of any such Proceedingcounsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnitor shall be deemed to have elected not Indemnity Obligor has failed to assume the defense of such Proceeding, action and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available employ counsel reasonably satisfactory to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to Indemnified Party. Whether or not the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheld.Indemnity Obligor

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") such action is brought against an Indemnitee for which such Indemnitee is or may indemnified party, the indemnifying Party will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing participate in and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect thereof to the Indemnitee. Ifextent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the indemnified party within thirty (30) days of its receipt of written notice of such action from the indemnified party, and after such opportunity, notice from the Indemnitor or its counsel does not indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense of thereof, the indemnifying Party shall not be liable to such indemnified party for any such Proceeding, it shall be bound legal or other expenses subsequently incurred by the results obtained by latter in connection with the Indemnitee. In defense thereof unless the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not indemnifying Party has failed PURCHASE AND SALE AGREEMENT -49- to assume the defense of such Proceedingclaim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of any action brought against it if (i) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified party in connection with the defense of such Proceedingaction or proceeding, (ii) such action or proceeding seeks injunctive relief with respect to the indemnified claim or is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified party, in each case, with the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the Indemnitee indemnified party will in good faith cooperate with and make available assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable out of pocket expense to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If the facts pertaining to a Loss arise out of the claim of any actionthird party, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") if there is brought any claim against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitora third party available by virtue of the circumstances of the Loss, the Indemnitee shall promptly give a Notice Indemnity Obligor may, by giving written notice to the Indemnitor Indemnified Party within twenty (20) days following its receipt of the notice of such Proceeding. The Indemnitor shallclaim, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense or the prosecution thereof, including the employment of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right counsel or accountants at its expense to participate in the defensecost and expense; provided, however, that the Indemnitee Indemnity Obligor may assume the defense or prosecution thereof only if (i) it provides evidence reasonably acceptable to the Indemnified Party that it will have the financial resources to defend the claim and satisfy its indemnification obligations; (ii) it obtains counsel which is reasonably satisfactory to the Indemnified Party; (iii) the third party claim involves only money damages and does not seek an injunction or other equitable relief; (iv) it conducts the defense of the claim actively and diligently; and (v) it keeps the Indemnified Party informed of all material developments and events relating thereto. Notwithstanding the foregoing, for the avoidance of doubt, the Indemnity Obligor shall have no obligation to defend any claim of any third party alleging that any Current Customer Deliverable infringes any Intellectual Property of a third party to the extent the Plaintiff or Counterclaim-Plaintiff does not specifically allege in writing that the Current Customer Deliverables infringe such Intellectual Property (even if the Indemnity Obligor has previously elected to assume the defense of such claim, provided that if the Indemnity Obligor elects to discontinue its defense of any such claim pursuant to this sentence, the Indemnity Obligor must provide prompt notice to the Indemnified Parties of its election to discontinue the defense of such claim). The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party’s own expense. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. The Indemnity Obligor shall have the right to settle, adjust or compromise or settle such Proceeding only with claim; provided, however, that the prior written consent of the Indemnitor which Indemnified Party shall not be unreasonably withheldliable or obligated for any such settlement, adjustment or compromise of any such claim effected without its prior written consent.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought claim against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitora third party available by virtue of the circumstances of the Loss, the Indemnitee shall promptly give a Notice Indemnity Obligor shall, by giving written notice to the Indemnitor Indemnified Party within 15 days following its receipt of the notice of such Proceeding. The Indemnitor shallclaim, assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, have unless (a) the opportunity to be represented employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect reasonably satisfactory to the Indemnitee. If, after Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and counsel to each of the Indemnified Party and the Indemnity Obligor shall have advised such opportunity, the Indemnitor or its counsel does not assume the defense parties that representation of any such Proceeding, it shall be bound both parties by the results obtained by same counsel would be inappropriate due to actual or potential differing interests between them or (c) the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not Indemnity Obligor has failed to assume the defense of such Proceedingaction. Whether or not the Indemnity Obligor defends or prosecutes such claim, and all the parties hereto shall cooperate in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of or prosecution thereof and shall furnish such Proceedingrecords, the Indemnitee will cooperate with information and make available to the Indemnitor testimony and shall attend such assistance conferences, discovery proceedings and materials trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by it at no cost the Indemnity Obligor to the IndemnitorIndemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and the Indemnitee will have the right at its expense to participate shall stand in the defense; provided, however, that place of the Indemnitee will Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have the any right or claim against such third party relating to compromise or settle such Proceeding only indemnified matter. The Indemnified Party shall cooperate with the prior written Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnitor which shall not be unreasonably withheldIndemnified Party.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") Proceeding referred to in Section 10.9.1 is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice indemnified party and it gives notice to the Indemnitor indemnifying party of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel commencement of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall indemnifying party will, unless the claim is a Tax Claim, be deemed entitled to have elected not participate in such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such ProceedingProceeding with counsel satisfactory to the indemnified party and, and in such event after notice from the Indemnitee will have indemnifying party to the right to conduct such defense. In the event that the Indemnitor does elect indemnified party of its election to assume the defense of such Proceeding, the Indemnitee indemnifying party will cooperate with and make available not, as long as it diligently conducts such defense, be liable to the Indemnitor indemnified party under this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such assistance Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and materials as subject to indemnification; (ii) no compromise or settlement of such claims may be reasonably requested effected by it at the indemnifying party without the indemnified party’s consent unless (A) there is no cost finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten (10) days after the indemnified party’s notice is given, give notice to the Indemnitorindemnified party of its election to assume the defense of such Proceeding, and the Indemnitee indemnifying party will have the right at its expense to participate be bound by any determination made in the defense; provided, however, that the Indemnitee will have the right to such Proceeding or any compromise or settle such Proceeding only with settlement effected by the prior written consent of the Indemnitor which shall not be unreasonably withheldindemnified party.

Defense. If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution of such claim, including the employment of counsel or accountants at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in such action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, but the Indemnitee shall promptly give a Notice to the Indemnitor fees and expenses of such Proceeding. The Indemnitor shall, counsel shall be at its the Indemnified Party's own expense, have unless (a) the opportunity Indemnity Obligor failed to be represented assume the defense or prosecution thereof within such 15-day period; or (b) the Indemnified Party determines there is a conflict of interest in the representation by counsel selected by the Indemnity Obligor, in which case the fees and expenses of its choosing and to assume and conduct counsel selected by the Indemnified Party shall be at the expense of the Indemnity Obligor. If the Indemnity Obligor assumes the defense of a proceeding, (i) it will be conclusively established for purposes of the Agreement that the claims made in that proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnity Obligor without the Indemnified Party's consent unless (A) there is no finding or admission of any violation of applicable laws or any violation of the rights of any person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnity Obligor; and (iii) the Indemnified Party will have no liability with respect to any compromise or settlement of such Proceeding upon providing a written undertaking to that effect to claims effected without its consent. Notwithstanding the Indemnitee. If, after such opportunityforegoing, the Indemnitor or its counsel does not assume the defense filing of any such Proceeding, it shall be bound answer by the results obtained by Indemnity Obligor in order to preserve the Indemnitee. In rights of the event that the Indemnitee does Indemnified Party due to a filing deadline shall not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not in itself constitute its election to assume the defense of a claim hereunder. Whether or not the Indemnity Obligor chooses so to defend or prosecute such Proceedingclaim, and all the parties to this Agreement shall cooperate in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense or prosecution of such Proceedingclaim and shall furnish such records, the Indemnitee will cooperate with information and make available to the Indemnitor testimony and shall attend such assistance conferences, discovery proceedings and materials trials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor consent, which shall not be unreasonably withheld.

Defense. If Promptly after receipt by an Indemnified Person of notice of the commencement of any action, litigation, suit, investigation, arbitration action or other proceeding ("Proceeding") is brought against an Indemnitee for with respect to which such Indemnitee is or indemnification may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitorsought hereunder, the Indemnitee such person shall promptly give a Notice to notify the Indemnitor of the commencement of such Proceedingaction or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be materially prejudiced by such failure. The If the Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunityshall so elect, the Indemnitor or its counsel does not shall assume the defense of any such Proceedingaction or proceeding, it including the employment of counsel reasonably satisfactory to such Indemnified Person and shall be bound by pay the results obtained by the Indemniteefees and disbursements of such counsel. In the event event, however, that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days such Indemnified Person reasonably shall determine in its judgment that having com- mon counsel would present such counsel with a conflict of having given Notice interest or alternative defenses shall be available to the Indemnitor of any such Proceeding, an Indemnified Person or if the Indemnitor shall be deemed to have elected not fail to assume the defense of the action or proceeding in a timely manner, then such Proceeding, and Indemnified Person may employ separate counsel to represent or defend it in any such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitoraction or proceeding, and the Indemnitee will have Indemnitor shall pay the right at its expense to participate in the defensereasonable fees and dis- bursements of such counsel; provided, however, that the Indemnitee will Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action or proceeding. In any action or proceeding the defense of which the Indemnitor shall assume, the Indemnified Person shall have the right to compromise or settle participate in such Proceeding only litigation and to retain its own counsel at such Indemnified Person's own expense, so long as such participation shall not interfere with the prior written consent Indemnitor's control of the Indemnitor which shall not be unreasonably withheldsuch litigation.

Defense. If With respect to any actionProceeding as to which Indemnitee notifies the Company of the commencement thereof, litigation, suit, investigation, arbitration the Company or other proceeding ("Proceeding") is brought against an Indemnitee for which any Subsidiary designated by the Company and that has legal standing to participate in such Indemnitee is or may Proceeding will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, participate in the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, Proceeding at its own expenseexpense and except as otherwise provided below, have to the opportunity extent the Company or such Subsidiary so wishes, it may assume the defense thereof with counsel reasonably satisfactory to be represented by counsel Indemnitee. After notice from the Company or such Subsidiary to Indemnitee of its choosing and election to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written but all Expenses related thereto incurred after notice from the Indemnitor within ten Company or such Subsidiary of its assumption of the defense shall be at Indemnitee’s expense unless: (10i) days the employment of having given Notice to counsel by Indemnitee has been authorized by the Indemnitor Company or such Subsidiary, (ii) Indemnitee has reasonably determined that there may be a conflict of any interest between Indemnitee and the Company or such Subsidiary in the defense of the Proceeding, (iii) after a Change in Control of the Indemnitor Company, or (iv) neither the Company nor such Subsidiary shall within sixty (60) calendar days (or such shorter period of time as may be deemed necessary to preserve any rights or defenses) in fact have elected not employed counsel to assume the defense of such Proceeding, in each of which cases in clauses (i) through (iv) all Expenses of the Proceeding shall be borne by the Company; and (v) if the Company or such Subsidiary has employed counsel to represent Indemnitee and other current and former directors, officers and employees of the Company or such Subsidiary in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such a Proceeding, and a majority of such persons, including Indemnitee, reasonably object to such counsel selected by the Indemnitee will cooperate with and make available Company or such Subsidiary pursuant to the Indemnitor this Section 6(a), then such assistance and materials as may persons, including Indemnitee, shall be reasonably requested by it at no cost permitted to the Indemnitor, employ one (1) additional counsel of their choice and the Indemnitee will have reasonable fees and expenses of such counsel shall be at the right at its expense to participate in of the defenseCompany; provided, however, that such counsel shall be chosen from amongst the list of counsel, if applicable, approved by any company with which the Company or such Subsidiary obtains or maintains directors’ and officers’ liability insurance, if required by the terms of such insurance. In the event separate counsel is retained by an Indemnitee pursuant to this Section 6(a), the Company shall and shall cause such Subsidiary, if applicable, to cooperate fully with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. Neither the Company nor such Subsidiary shall be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or such Subsidiary, as to which Indemnitee shall have made the determination provided for in clause (ii) above or as to which the Indemnitee will have elects to assume the right to compromise or settle such Proceeding only with defense after the prior written consent occurrence of either of the Indemnitor which shall not be unreasonably withheldevents described in clause (iii) above.

Defense. If any action, litigation, suit, investigation, arbitration civil or other proceeding administrative action that might reasonably be expected to result in an Indemnifiable Claim (an "ProceedingAction") is brought asserted or threatened by a third party against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitorany Indemnified Party, the Indemnitee shall promptly give a Notice Indemnifying Party may elect to control the defense thereof with experienced counsel reasonably satisfactory to the Indemnitor Indemnified Party. Notwithstanding the foregoing, if the Indemnifying Party, within fifteen (15) days after receipt of a notice of such Proceeding. The Indemnitor shallAction, at its own expense, have fails to give written notice to the opportunity to be represented by counsel of its choosing and to assume and conduct Indemnified Party that the Indemnifying Party is undertaking the defense of any thereof or thereafter fails to timely assume such Proceeding upon providing a written undertaking to that effect to defense, then the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it Indemnified Party shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct defend, compromise or settle the Action for the account of the Indemnifying Party. An assertion by the Indemnifying Party of a reservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. In If the event that the Indemnitor does elect to assume Indemnifying Party assumes control of the defense of such Proceedingin an Action, the Indemnitee it will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate take all steps necessary in the defense, prosecution, or settlement of such claim or litigation and will hold the Indemnified Party harmless from and against all Losses caused by or arising out of such Action. The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement except with the written consent of the Indemnified Party; provided, however, that the Indemnitee consent of the Indemnified Party shall not be required if all of the following conditions are met: (i) the terms of the judgment or proposed settlement include as an unconditional term thereof the giving to the Indemnified Party by the third party of a release of the Indemnified Party from all liability in respect of such Action; (ii) there is no finding or admission of (A) any violation of law by the Indemnified Party (or any affiliate thereof), and (B) any violation of the rights of any other person; (iii) the judgment or settlement will have no effect on any other Action or claims of a similar nature that may be made against the Indemnified Party (or any affiliate thereof); and (iv) the sole form of relief is monetary damages which are paid in full by the Indemnifying Party. The Indemnifying Party shall conduct the defense of the Action actively and diligently, and the Indemnified Party will provide reasonable cooperation in the defense of the Action. In all cases, the party that is not assigned the right to control the defense shall have the right to compromise or settle such Proceeding only with participate in the prior written consent defense of the Indemnitor Action at its own expense, subject to the reasonable direction of the other party. Each of the Indemnifying Party and the Indemnified Party shall give all reasonable assistance to the other party in connection therewith. In any case, the Indemnified Party shall, subject to Section 12.5, make available to the Indemnifying Party and its attorneys, accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such Action or such other matter as to which the Indemnified Party is or was required to give notice. The party having control of the defense of an Action shall not be unreasonably withheldnotify the other party of every proposal, oral or written, for settlement, which it receives or makes.

Defense. If With respect to any actionProceeding as to which Indemnitee notifies Xxxxxxx Controls and Tyco Management of the commencement thereof, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may Xxxxxxx Controls will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, participate in the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, Proceeding at its own expenseexpense and except as otherwise provided below, have to the opportunity extent Xxxxxxx Controls so wishes, it may assume the defense thereof with counsel reasonably satisfactory to be represented by counsel Indemnitee. After notice from Xxxxxxx Controls to Indemnitee of its choosing and election to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any Proceeding, Xxxxxxx Controls shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ legal counsel in such Proceeding, it but all Expenses related thereto incurred after notice from Xxxxxxx Controls of its assumption of the defense shall be bound at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by Xxxxxxx Controls, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Xxxxxxx Controls in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the results obtained by the Indemnitee. In the event that the Indemnitee does Independent Counsel, or (iv) Xxxxxxx Controls shall not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to in fact have elected not employed counsel to assume the defense of such Proceeding, and in such event each of which cases all Expenses of the Indemnitee will have Proceeding shall be borne by Xxxxxxx Controls to the right to conduct such defensefullest extent permitted by law. In the event that the Indemnitor does elect Xxxxxxx Controls shall not be entitled to assume the defense of such Proceedingany Proceeding (x) brought by or on behalf of Tyco Management or Xxxxxxx Controls, (y) as to which Indemnitee shall have made the Indemnitee will cooperate with and make available to determination provided for in (ii) above or (z) after a Change in Control (it being specified, for the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, howeveravoidance of doubt, that the Indemnitee will have the right to compromise or settle Xxxxxxx Controls may assume defense of any such Proceeding only proceeding described in this sentence with the prior written Indemnitee’s consent, provided that any such consent of the Indemnitor which shall not be unreasonably withheldaffect the rights of Indemnitee under the foregoing provisions of this Section 6(b)).

Defense. If any actionclaim, litigationdemand or liability is asserted by any third party against any Indemnified Party, suitthe Indemnifying Party shall have the right and shall upon the written request of the Indemnified Party, investigation, arbitration or other proceeding ("Proceeding") is defend any Actions brought against an Indemnitee for which the Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, in the case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. In any such Indemnitee is action or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitorproceeding, the Indemnitee Indemnified Party shall promptly give a Notice have the right to retain its own counsel, but the Indemnitor fees and expenses of such Proceeding. The Indemnitor shall, counsel shall be at its own expenseexpense unless (a) the Indemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, have or (b) the opportunity named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be represented by counsel inadvisable due to potential conflicts of its choosing interests between them. The Parties shall cooperate and to assume and conduct may participate in the defense of any such Proceeding upon providing a written undertaking all third-party claims which may give rise to that effect to Indemnifiable Claims hereunder. If the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume Indemnifying Party assumes the defense of any such Proceeding, (i) it shall be bound conclusively established for purposes of this Agreement that the claims made in the Action are within the scope of and subject to indemnification but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b); and (ii) no compromise or settlement of such claims may be effected by the results obtained Indemnifying Party without the Indemnified Party's written consent (which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by the IndemniteeIndemnifying Party. In the event that the Indemnitee does not receive If written notice from is given to an Indemnifying Party of the Indemnitor commencement of any Action and the Indemnifying Party does not, within ten twenty (1020) days of having given Notice after the Indemnified Party's written notice is given, give written notice to the Indemnitor Indemnified Party of any such Proceeding, the Indemnitor shall be deemed to have elected not its election to assume the defense of such ProceedingAction, and the Indemnifying Party shall be bound by any determination made in such event Action or any compromise or settlement effected by the Indemnitee will have the right to conduct such defenseIndemnified Party. In the event that the Indemnitor does elect to assume connection with the defense of such Proceedingany claim, the Indemnitee will cooperate with and each Party shall make available to the Indemnitor Party controlling such assistance and materials as may be defense, any books, records or other documents within its control that are reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the course of or necessary or appropriate for such defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheld.. 8.3.3

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought claim against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitora third party available by virtue of the circumstances of the Loss, the Indemnitee shall promptly give a Notice Indemnity Obligor shall, by giving written notice to the Indemnitor Indemnified Party within 15 days following its receipt of the notice of such Proceeding. The Indemnitor shallclaim, assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; PROVIDED, HOWEVER that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, have unless (a) the opportunity to be represented employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect reasonably satisfactory to the Indemnitee. If, after such opportunity, the Indemnitor Indemnity Obligor that there may be one or its counsel does not assume the defense of any such Proceeding, more legal defenses available to it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice which are different from the Indemnitor within ten (10) days of having given Notice or additional to those available to the Indemnitor Indemnity Obligor and in the reasonable judgment of any such Proceedingcounsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnitor shall be deemed to have elected not Indemnity Obligor has failed to assume the defense of such Proceedingaction and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such claim, and all the parties hereto shall cooperate in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of or prosecution thereof and shall furnish such Proceedingrecords, the Indemnitee will cooperate with information and make available to the Indemnitor testimony and shall attend such assistance conferences, discovery proceedings and materials trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by it at no cost the Indemnity Obligor to the IndemnitorIndemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and the Indemnitee will have the right at its expense to participate shall stand in the defense; provided, however, that place of the Indemnitee will Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have the any right or claim against such third party relating to compromise or settle such Proceeding only indemnified matter. The Indemnified Party shall cooperate with the prior written Indemnity Obligor in prosecuting any subrogated claim. The Mr. Xxxxxxx Xxxxx Entertainment Blvd. July 30, 1999 Page 4 Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnitor which shall not be unreasonably withheldIndemnified Party.

Defense. If any actionof the indemnified parties is made or threatened ------- to be made a defendant in or party to any action or proceeding, litigationjudicial or administrative, suit, investigation, arbitration instituted by any third Person for the liability under which or other proceeding ("Proceeding") the costs or expenses of which any of the indemnified parties is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification be indemnified pursuant to subparagraph 13(a) Paragraph 18 (any such third party action or 13(b) from proceeding being referred to as an Indemnitor"Indemnification Claim"), the Indemnitee indemnified party or parties shall promptly give a Notice prompt notice thereof to the Indemnitor of indemnifying party; provided -------- that the failure to give such Proceedingnotice shall not affect the indemnified party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. The Indemnitor shallEach indemnified party shall permit the indemnifying party, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceedingclaim or any litigation to which this Paragraph 18.4 may be applicable, it by counsel reasonably satisfactory to the indemnified party or parties; provided, -------- that the indemnified party or parties shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does entitled at any time, at its or their own cost and expense (which expense shall not receive written notice be recoverable from the Indemnitor within ten (10) days indemnifying party unless the indemnifying party is not adequately representing or, because of having given Notice a conflict of interest, may not adequately represent, the indemnified party or parties' interests), to participate in such claim, action or proceeding and to be represented by attorneys of its or their own choosing. If the Indemnitor indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such Proceedingclaim or litigation, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceedingnot, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only except with the prior written approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the Indemnitor which shall not be unreasonably withheldgiving by the claimant or plaintiff to such indemnified party or parties of a full and complete release from all liability in respect to such claim or litigation.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") such claim is brought against an Indemnitee for which such Indemnitee is or may indemnified party, the indemnifying party will be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing participate in and to assume the defense thereof to the extent that it may wish, and conduct after notice from the indemnifying party to such indemnified party of the indemnifying party’s election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless the indemnifying party has failed to assume and diligently prosecute the defense of such claim. Notwithstanding any such Proceeding upon providing a written undertaking to that effect of the foregoing to the Indemnitee. If, after such opportunitycontrary, the Indemnitor or indemnified party will be entitled to select its own counsel does not and assume the defense of any action brought against it if the indemnifying party fails to select counsel, the expenses of such Proceeding, it shall defense to be bound paid by the results obtained indemnifying party. As a condition to the indemnifying party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the Indemniteeclaimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days No indemnified party shall consent to entry of having given Notice to the Indemnitor any judgment or enter into any settlement of any such Proceedingaction, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceedingwhich has been assumed by an indemnifying party, and in such event without the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense consent of such Proceedingindemnifying party, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written which consent of the Indemnitor which shall not be unreasonably withheld.

Defense. If The Indemnifying Party shall be entitled to assume the defense and control of any action giving rise to an Indemnified Party's claim for indemnification under Article XI unless (x) the Indemnified Party reasonably believes an adverse determination with respect to the action, litigation, suitlawsuit, investigation, arbitration proceeding or other proceeding ("Proceeding") claim giving rise to such claim for indemnification is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity likely to be represented by counsel materially detrimental to or materially injure the Indemnified Party's future business prospects or (y) the claim seeks an injunction or equitable relief against the Indemnified Party that is likely to have a material adverse effect on the business of its choosing and to assume and conduct the Indemnified Party, taken as a whole. If the Indemnifying Party assumes the defense of any such Proceeding upon providing a written undertaking to that effect Indemnifiable Claim, it shall retain experienced counsel reasonably satisfactory to the IndemniteeIndemnified Party and the Indemnified Party may participate in the defense of such claim and employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense). If, after such opportunity, If the Indemnitor or its counsel Indemnifying Party does not assume such defense, the defense Indemnified Party may compromise or settle the claim on behalf of any such Proceedingand for the account and risk of the Indemnifying Party, it who shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defenseresult; provided, however, that the Indemnitee will have Indemnifying Party (i) shall be responsible only for the right reasonable costs of defense and (ii) shall be entitled to participate (at its cost and with counsel of its choice) in the defense of any Action in which the Indemnified Party retained the defense thereof under clause (x) or (y) of the first sentence of this Section 11.3(b); and provided further, that the Indemnifying Party shall not be liable for any settlement or compromise or settle of any such Proceeding only with Action of which the Indemnified Party has retained the defense, that is effected without its prior written consent of the Indemnitor (which consent shall not be unreasonably withheldwithheld unreasonably).

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice Subject to the Indemnitor terms of such Proceeding. The Indemnitor shallthis Agreement, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunityoption, the Indemnitor or its counsel does not shall have the right to assume the sole control of the defense or settlement of any such Proceeding, it shall be bound Claim solely for monetary damages by the results obtained by the Indemnitee. In the event that giving written notice to the Indemnitee does not receive written notice from the Indemnitor within ten (10) days after the Indemnitor’s receipt of having given Notice to a Claim notice under Section 10.3(a). The assumption of the Indemnitor defense of any such Proceeding, a Claim by the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event construed as an acknowledgment that the Indemnitor does elect is liable to assume indemnify the defense Indemnitee in respect of such Proceedingthe Claim. Regardless of whether the Indemnitor chooses to defend or prosecute any Claim, the Indemnitee will shall, and shall cause each Melior Indemnified Party or Biodexa Indemnified Party, as applicable, to, cooperate fully with the Indemnitor and make available its legal representatives in the investigation of any action with respect to a Claim covered by this indemnification, including by (a) delivering to the Indemnitor all original notices and documents (including court papers) received by the Indemnitee in connection with the Claim, and (b) furnishing such assistance records, information and materials testimony, and providing such witnesses and attending such conferences, discovery proceedings, hearings, trials and appeals, in each case, as may be reasonably requested by it in connection with such Claim. In the case where the Indemnitor has assumed the defense of any Claim pursuant to this Section 10.3, the Indemnitee may participate in, but not control, at no its sole cost and expense (subject to the following sentence), the Indemnitor’s defense of any Claim with counsel of the Indemnitee’s own selection. Should the Indemnitor assume the defense of a Claim, and the Indemnitor shall not be liable to the Indemnitee will have for any legal expenses subsequently incurred by such Indemnitee in connection with the right at its expense analysis, defense or settlement of the Claim unless (i) specifically approved in writing by the Indemnitor or (ii) the interests of the Indemnitor and Indemnitee with respect to participate in such Claim are sufficiently adverse to prohibit the defense; providedrepresentation by the same counsel of both Parties under Applicable Law, howeverethical rules or equitable principles. For clarity, that if the Indemnitee will have has the right to compromise control the defense of a Claim pursuant to this Section 10.3, the Indemnitee shall be entitled to control such Claim, without limiting the Indemnitor’s responsibility for Losses under Section 10.1 or settle such Proceeding only with the prior written consent of the Indemnitor which shall not be unreasonably withheldSection 10.2, as applicable. [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.

Defense. If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may OF CLAIMS -- The Company shall be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct participate in the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor Indemnifiable Claim or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceedingthereof, and in such event the Indemnitee will have the right with counsel reasonably satisfactory to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defenseIndemnitee; provided, however, that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee will have would present such counsel with an actual or potential conflict, (b) the right named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to compromise him or settle her that are different from or in addition to those available to the Company or (c) any such Proceeding only representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel with respect to any particular Indemnifiable Claim) at the Company's expense. The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company's prior written consent. The Company shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim that Indemnitee is or could have been a party unless such settlement solely involves the Indemnitor which payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided, however, that Indemnitee may withhold consent to any settlement that does not be unreasonably withheldprovide a complete and unconditional release of Indemnitee.

Defense. If any action, litigation, suit, investigation, arbitration Action that might reasonably be expected to result in an Indemnifiable Claim is asserted or other proceeding ("Proceeding") is brought threatened by a third party against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitorany Indemnified Party, the Indemnitee shall promptly give a Notice Indemnifying Party may elect to control the defense thereof with experienced counsel reasonably satisfactory to the Indemnitor Indemnified Party. Notwithstanding the foregoing, if the Indemnifying Party, within fifteen (15) days after receipt of a notice of such ProceedingAction fails to give written notice to the Indemnified Party that the Indemnifying Party shall undertake the defense thereof or thereafter fails to timely assume such defense, then the Indemnified Party shall have the right to defend, compromise or settle the Action for the account of the Indemnifying Party. The Indemnitor shallAn assertion by the Indemnifying Party of a reservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. If, after the Indemnifying Party has undertaken the defense of the Action, the Indemnified Party reasonably believes (and gives notice thereof to the Indemnifying Party) that an Indemnifiable Claim may materially adversely affect the business or operations of the Indemnified Party, then the Indemnified Party shall have the right to participate in the defense of the Action at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect subject to the Indemniteereasonable direction of the other party. If, after such opportunityEach of the Indemnifying Party and the Indemnified Party shall give all reasonable assistance to the other party in connection therewith. In any case, the Indemnitor or its counsel does not assume the defense of any such ProceedingIndemnified Party shall, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice subject to the Indemnitor of any such ProceedingSection 10.10, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceeding, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor Indemnifying Party and its attorneys, accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such assistance and materials Action or such other matter as may be reasonably requested by it at no cost to which the Indemnitor, and the Indemnitee will have the right at its expense Indemnified Party is or was required to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only with the prior written consent give notice. The party having control of the Indemnitor defense of an Action shall notify the other party of every proposal, oral or written, for settlement, which shall not be unreasonably withheldit receives or makes.

Defense. If any actionof the indemnified parties is made or threatened to be ------- made a defendant in or party to any action or proceeding, litigationjudicial or administrative, suit, investigation, arbitration instituted by any third party for the liability under which or other proceeding ("Proceeding") the costs or expenses of which any of the indemnified parties is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification be indemnified pursuant to subparagraph 13(a) this Paragraph I (any such third party action or 13(b) from proceeding being referred to as an Indemnitor"Indemnification Claim"), the Indemnitee indemnified party or parties shall promptly give a Notice prompt notice thereof to the Indemnitor of indemnifying party; provided that the failure to give such Proceedingnotice shall not affect the indemnified -------- party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. The Indemnitor shallEach indemnified party shall permit the indemnifying party, at its own expense, have the opportunity to be represented by counsel of its choosing and to assume and conduct the defense of any such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceedingclaim or any litigation to which this Paragraph 1 may be applicable, it by counsel reasonably satisfactory to the indemnified party or parties; provided, that the indemnified party or parties shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does entitled at any time, -------- at its or their own cost and expense (which expense shall not receive written notice be recoverable from the Indemnitor within ten (10) days indemnifying party unless the indemnifying party is not adequately representing or, because of having given Notice a conflict of interest, may not adequately represent, the indemnified party or parties' interests), to participate in such claim, action or proceeding and to be represented by attorneys of its or their own choosing. If the Indemnitor indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such Proceedingclaim or litigation, the Indemnitor shall be deemed to have elected not to assume the defense of such Proceedingnot, and in such event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or settle such Proceeding only except with the prior written approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the Indemnitor which shall not be unreasonably withheldgiving by the claimant or plaintiff to such indemnified party or parties of a full and complete release from all liability in respect to such claim or litigation.