Common use of Disputed and Third-Party Claims Clause in Contracts

Disputed and Third-Party Claims. (a) If the Buyer shall give notice of a claim in accordance with Section 7.2, and the Buyer and the Holders' Agent do not resolve such matter by written agreement within 45 days after such notice is given, the dispute will be settled exclusively by arbitration before a single arbitrator appointed by the American Arbitration Association. The Buyer and the Holders' Agent shall each bear their own expenses (including without limitation the fees and expenses of legal counsel and accountants) in connection with such arbitration. The arbitral award shall allocate the arbitrator's fees and expenses according to the relative success of the Buyer and the Holders' Agent in the arbitration, as determined by the arbitrator. (b) To the extent a claim by the Buyer under Section 7.2 relates to a claim asserted against a party to this Agreement (other than to enforce this Agreement) (a "THIRD-PARTY CLAIM") and the Buyer gives notice of the assertion of the Third-Party Claim, then the Holders' Agent will have the option, exercisable by written notice to the Buyer within 20 days after receipt of the Buyer' notice, to control the defense of such Third-Party Claim. All expenses (including, without limitation, attorneys' fees) incurred by the Holders' Agent in connection with their assumption of control of the defense of a Third-Party Claim shall be paid by the Holders' Agent from the sources specified in the Escrow Agreement. If the Holders' Agent has not assumed the defense of a Third- Party Claim, then the Buyer shall have the right to control the defense of the Third-Party Claim, and the expenses reasonably incurred by the Buyer in connection with such defense shall be recoverable as part of the underlying claim on the same basis and subject to the same limitations as stated in Section 7.2 and this Section. (c) The party controlling the defense may use counsel selected by it, but if the other party reasonably objects (within 20 days after designation of counsel initially selected) on account of such counsel's representation or potential representation of the designating party in matters in which the Buyer' and the Stockholders' or the Company's interests are adverse or potentially adverse, the designating party shall select other counsel free of any such adverse representation. The party controlling the defense shall have the right, in its discretion exercised in good faith and upon the advice of counsel, to settle such matter, either before or after the initiation of litigation, at such time and upon such terms as they deem fair and reasonable, PROVIDED that (i) at least 10 days' prior notice shall be given to the other party of the intention to settle the Third-Party Claim, (ii) no settlement by the controlling party shall include any equitable relief binding on the noncontrolling party, and (iii) the controlling party shall not agree to any settlement of such Third- Party Claim without the prior written consent of the other party, which consent shall not be unreasonably withheld. The noncontrolling party will have the right to be represented by counsel, solely at its own expense. The controlling party shall keep the other party advised of the status of the Third-Party Claim and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. (d) Unless otherwise agreed by the parties, arbitration under Section 7.3(a) of a claim by the Buyer with respect to a Third-Party Claim shall be deferred until the resolution of the Third-Party Claim.

Disputed and Third-Party Claims. (a) If the Buyer any Party shall give notice of a claim in accordance with Section 7.26.6, and the Buyer MoSys and the Holders' ’ Agent (or the particular Vendor acting on its own behalf, as the case may be) do not resolve such matter by written agreement within 45 days after such notice is given, the dispute will be settled exclusively by arbitration before a single arbitrator appointed by JAMS/Endispute. If the American total amount (not including interest) of the dispute and any counterclaim exceeds $50,000, the arbitration will be conducted in accordance with the Comprehensive Arbitration Association. The Buyer Rules and Procedures of JAMS/Endispute; any other arbitration under this Section will be conducted in accordance with the Holders' Agent shall each bear their own expenses (including without limitation the fees Streamlined Arbitration Rules and expenses Procedures of legal counsel and accountants) in connection with such arbitrationJAMS/Endispute. The arbitral award shall allocate the arbitrator's ’s fees and expenses according to the relative success of the Buyer MoSys and the Holders' ’ Agent in the arbitration, as determined by the arbitrator. (b) To In the extent event of a claim by the Buyer MoSys under Section 7.2 relates to a claim asserted against a party to this Agreement 6.4(a) which, based on the relief sought by the claimant, can be fully satisfied by the available Escrow Amount (after deducting the full amount of all other than to enforce this Agreementpending claims for Damages) (a "THIRD-PARTY CLAIM") and the Buyer gives notice of the assertion of the “Third-Party Claim”), then Holders’ Agent (or the Holders' Agent particular Vendor acting on its own behalf, as the case may be) will have the option, exercisable by written notice to the Buyer MoSys within 20 days after receipt of the Buyer' MoSys’s notice, to control the defense of such Third-Party Claim. All expenses (including, without limitation, attorneys' ’ fees) incurred by the Holders' ’ Agent (or the particular Vendor acting on its own behalf, as the case may be) in connection with their his assumption of control of the defense of a Third-Party Claim shall be paid by the Holders' Agent from the sources specified in the Escrow Agreement’ Agent. If the Holders' ’ Agent (or the particular Vendor acting on its own behalf, as the case may be) has not so assumed the defense of a Third- Third-Party Claim, then the Buyer MoSys shall have the right to control the defense of the Third-Party Claim, and the expenses reasonably incurred by the Buyer MoSys in connection with such defense shall be recoverable as part of the Damages which are the source of the underlying claim on the same basis and subject to the same limitations as stated in Section 7.2 and this Sectionclaim. (c) In the event any claim alleging Damages in excess of the available Escrow Property (after deducting the full amount of all pending claims for Damages), MoSys shall have the sole right to control the defense of any such claim and the expenses reasonably incurred by MoSys in connection with such defense shall be recoverable as part of the Damages which are the source of the underlying claim. (d) The party controlling the defense may use counsel selected by it, but if it to conduct such defense and shall notify the other party of such selection. If the other party reasonably objects (within 20 days after designation of counsel initially selected) on account of selected that such counsel's ’s representation or potential representation of the designating party in matters in which the Buyer' MoSys’s and the Stockholders' Vendors’ or the Company's Atmos’s interests are adverse or potentially adverse, the designating party shall select other counsel free of any such adverse representation. The party controlling the defense shall have the right, in its discretion exercised in good faith and upon the advice of counsel, to settle such matter, either before or after the initiation of litigation, at such time and upon such terms as they deem fair and reasonable, PROVIDED provided that (i) at least 10 days' ’ prior notice shall be given to the other party of the intention to settle the Third-Party Claim, (ii) no settlement by the controlling party shall include any equitable relief binding on the noncontrolling party, and (iii) the controlling party shall not agree to any settlement of such Third- Third-Party Claim without the prior written consent of the other party, which consent shall not be unreasonably withheld. The noncontrolling party will have the right to be represented by counsel, solely at its own expense. The controlling party shall keep the other party advised of the status of the Third-Party Claim and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. (de) Unless otherwise agreed by the partiesParties, arbitration under Section 7.3(a) of a claim by the Buyer MoSys with respect to a Third-Party Claim shall be deferred until the resolution of the Third-Party Claim.

Disputed and Third-Party Claims. (a) If the Buyer shall give notice of a claim in accordance with Section 7.2, and the Buyer and the Holders' Agent do not resolve such matter by written agreement within 45 days after such notice is given, the dispute will be settled exclusively by arbitration before a single arbitrator appointed by JAMS, Inc. If the American total amount (not including interest) of the dispute and any counterclaim exceeds $250,000, the arbitration will be conducted in accordance with the JAMS Comprehensive Arbitration AssociationRules and Procedures; any other arbitration under this Section will be conducted in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The Buyer and the Holders' Agent shall each bear their own expenses (including without limitation the fees and expenses of legal counsel and accountants) in connection with such arbitration. The arbitral award shall allocate the arbitrator's fees and expenses according to the relative success of the Buyer and the Holders' Agent in the arbitration, as determined by the arbitrator. (b) To the extent a claim by the Buyer under Section 7.2 relates to a claim asserted against a party to this Agreement (other than to enforce this Agreement) (a "THIRDThird-PARTY CLAIMParty Claim") and the Buyer gives notice of the assertion of the Third-Party Claim, then the Holders' Agent will have the option, exercisable by written notice to the Buyer within 20 days after receipt of the Buyer' notice, to control the defense of such Third-Party Claim. All expenses (including, without limitation, attorneys' fees) incurred by the Holders' Agent in connection with their her assumption of control of the defense of a Third-Party Claim shall be paid by the Holders' Agent from the sources specified in the Escrow AgreementAgent. If the Holders' Agent has not assumed the defense of a Third- Third-Party Claim, then the Buyer shall have the right to control the defense of the Third-Party Claim, and the expenses reasonably incurred by the Buyer in connection with such defense shall be recoverable as part of the underlying claim on the same basis and subject to the same limitations as stated in Section 7.2 and this Section. (c) The party controlling the defense may use counsel selected by it, but if the other party reasonably objects (within 20 days after designation of counsel initially selected) on account of such counsel's representation or potential representation of the designating party in matters in which the Buyer' and the Stockholders' 's or the CompanyStockholder's and Additional Members' interests are adverse or potentially adverse, the designating party shall select other counsel free of any such adverse representation. The party controlling the defense shall have the right, in its discretion exercised in good faith and upon the advice of counsel, to settle such matter, either before or after the initiation of litigation, at such time and upon such terms as they deem fair and reasonable, PROVIDED provided that (i) at least 10 days' prior notice shall be given to the other party of the intention to settle the Third-Party Claim, (ii) no settlement by the controlling party shall include any equitable relief binding on the noncontrolling party, and (iii) the controlling party shall not agree to any settlement of such Third- Third-Party Claim without the prior written consent of the other party, which consent shall not be unreasonably withheld. The noncontrolling party will have the right to be represented by counsel, solely at its own expense. The controlling party shall keep the other party advised of the status of the Third-Party Claim and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. (d) Unless otherwise agreed by the parties, arbitration under Section 7.3(a) of a claim by the Buyer with respect to a Third-Party Claim shall be deferred until the resolution of the Third-Party Claim.

Disputed and Third-Party Claims. (a) If the Buyer CHC and/or CNO shall give notice of a claim in accordance with Section 7.28.2, and the Buyer CNO and the Holders' Agent Majority Holders do not resolve such matter by written agreement within 45 days after such notice is given, the dispute will be settled exclusively by arbitration before a single arbitrator appointed by JAMS/Endispute. If the American total amount (not including interest) of the dispute and any counterclaim exceeds $250,000, the arbitration will be conducted in accordance with the Comprehensive Arbitration AssociationRules and Procedures of JAMS/Endispute; any other arbitration under this Section will be conducted in accordance with the Streamlined Arbitration Rules and Procedures of JAMS/Endispute. The Buyer CHC and CNO on the one hand, and the Holders' Agent Holders on the other hand, shall each bear their own expenses (including without limitation the fees and expenses of legal counsel and accountants) in connection with such arbitration. The arbitral award shall allocate the arbitrator's fees and expenses according to the relative success of CHC and CNO on the Buyer one hand, and the Holders' Agent Holders on the other hand, in the arbitration, as determined by the arbitrator. (b) To the extent a claim by the Buyer CHC and/or CNO under Section 7.2 8.2 relates to a claim asserted against a party to this Agreement (other than to enforce this Agreement) (a "THIRD-PARTY CLAIM") and the Buyer CNO gives notice of the assertion of the Third-Party Claim, then the Holders' Agent Majority Holders will have the option, exercisable by written notice to the Buyer CNO within 20 days after receipt of the Buyer' CHC's and/or CNO's notice, to control the defense of such Third-Party Claim. All expenses (including, without limitation, attorneys' fees) incurred by the Holders' Agent such Holders in connection with their assumption of control of the defense of a Third-Party Claim shall be paid by such Holders for the account of all Holders' Agent from the sources specified in the Escrow Agreement. If the Holders' Agent has Holders have not thus assumed the defense of a Third- Third-Party Claim, then the Buyer CNO shall have the right to control the defense of the Third-Party Claim, and the expenses reasonably incurred by the Buyer CNO in connection with such defense shall be recoverable as part of the underlying claim on the same basis and subject to the same limitations as stated in Section 7.2 8.2 and this Section. (c) The party controlling the defense may use counsel selected by it, but if the other party reasonably objects (within 20 days after designation of counsel initially selected) on account of such counsel's representation or potential representation of the designating party in matters in which CHC's and CNO's interests on the Buyer' one hand and the StockholdersHolders' or interests on the Company's interests other hand are adverse or potentially adverse, the designating party shall select other counsel free of any such adverse representation. The party controlling the defense shall have the right, in its discretion exercised in good faith and upon the advice of counsel, to settle such matter, either before or after the initiation of litigation, at such time and upon such terms as they deem fair and reasonable, PROVIDED that (i) at least 10 days' prior notice shall be given to the other party of the intention to settle the Third-Party Claim, (ii) no settlement by the controlling party shall include any equitable relief binding on the noncontrolling party, and (iii) the controlling party shall not agree to any settlement of such Third- Third-Party Claim without the prior written consent of the other party, which consent shall not be unreasonably withheld. The noncontrolling party will have the right to be represented by counsel, solely at its own expense. The controlling party shall keep the other party advised of the status of the Third-Party Claim and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. (d) Unless otherwise agreed by the parties, arbitration under Section 7.3(a8.3(a) of a claim by the Buyer CHC and/or CNO with respect to a Third-Party Claim shall be deferred until the resolution of the Third-Party Claim.

Disputed and Third-Party Claims. (a) If the Buyer NetObjects shall give notice of a claim in accordance with Section 7.2, and the Buyer NetObjects and the Holders' Agent Agents do not resolve such matter by written agreement within 45 days after such notice is given, the dispute will be settled exclusively by arbitration before a single arbitrator appointed by JAMS/Endispute. If the American total amount (not including interest) of the dispute and any counterclaim exceeds $100,000, the arbitration will be conducted in accordance with the Comprehensive Arbitration AssociationRules and Procedures of JAMS/Endispute; any other arbitration under this Section will be conducted in accordance with the Streamlined Arbitration Rules and Procedures of JAMS/Endispute. The Buyer NetObjects and the Holders' Agent Agents shall each bear their own expenses (including without limitation the fees and expenses of legal counsel and accountants) in connection with such arbitration. The arbitral award shall allocate the arbitrator's fees and expenses according to the relative success of the Buyer NetObjects and the Holders' Agent Agents in the arbitration, as determined by the arbitrator. (b) To the extent a claim by the Buyer NetObjects under Section 7.2 relates to a claim asserted against a party to this Agreement (other than to enforce this Agreement) (a "THIRDThird-PARTY CLAIMParty Claim") and the Buyer NetObjects gives notice of the assertion of the Third-Party Claim, then the Holders' Agent Agents will have the option, exercisable by written notice to the Buyer NetObjects within 20 days after receipt of the BuyerNetObjects' notice, to control the defense of such Third-Party Claim. All expenses (including, without limitation, attorneys' fees) incurred by the Holders' Agent Agents in connection with their his assumption of control of the defense of a Third-Party Claim shall be paid by the Holders' Agent from the sources specified in the Escrow AgreementAgents. If the Holders' Agent Agents has not assumed the defense of a Third- Third-Party Claim, then the Buyer NetObjects shall have the right to control the defense of the Third-Party Claim, and the expenses reasonably incurred by the Buyer NetObjects in connection with such defense shall be recoverable as part of the underlying claim on the same basis and subject to the same limitations as stated in Section 7.2 and this Section. (c) The party controlling the defense may use counsel selected by it, but if the other party reasonably objects (within 20 days after designation of counsel initially selected) on account of such counsel's representation or potential representation of the designating party in matters in which the Buyer' NetObjects's and the Stockholders' or the Company's interests are adverse or potentially adverse, the designating party shall select other counsel free of any such adverse representation. The party controlling the defense shall have the right, in its discretion exercised in good faith and upon the advice of counsel, to settle such matter, either before or after the initiation of litigation, at such time and upon such terms as they deem fair and reasonable, PROVIDED provided that (i) at least 10 days' prior notice shall be given to the other party of the intention to settle the Third-Party Claim, (ii) no settlement by the controlling party shall include any equitable relief binding on the noncontrolling party, and (iii) the controlling party shall not agree to any settlement of such Third- Third-Party Claim without the prior written consent of the other party, which consent shall not be unreasonably withheld. The noncontrolling party will have the right to be represented by counsel, solely at its own expense. The controlling party shall keep the other party advised of the status of the Third-Party Claim and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. (d) Unless otherwise agreed by the parties, arbitration under Section 7.3(a) of a claim by the Buyer NetObjects with respect to a Third-Party Claim shall be deferred until the resolution of the Third-Party Claim.