Common use of Notice of Claim; Right to Defend Clause in Contracts

Notice of Claim; Right to Defend. As soon as reasonably practicable, Buyer shall give to Seller written notice of any claim, Action, suit, demand or event which Buyer believes shall give rise to a claim for indemnification under Section 9.1 hereunder; provided, however, that the failure of Buyer to give such written notice as soon as reasonably practicable shall not affect the Liability of Seller hereunder, except to the extent that the rights of Seller to defend himself or to cure or mitigate the Losses are actually prejudiced thereby. Thereafter, Buyer shall furnish to Seller, in reasonable detail, such information as it may have with respect to such Action or other event, including copies of any summons, complaint or other pleading which may have been served upon any Buyer Indemnified Party or any written claim, demand, invoice, billing or other document evidencing or asserting the same. Provided Seller, within ten (10) days after receipt of such written notice from Buyer, shall acknowledge in writing to Buyer Seller’s assumption of full responsibility for defense and indemnification with respect to such claim, action, suit or proceeding, Seller shall have the right to assume defense of such claim, action, suit or proceedings through counsel selected by Seller and reasonably satisfactory to Buyer at their expense, and to contest or compromise such claim, action, suit or proceeding. Upon such assumption of defense by Seller, Buyer shall cooperate with Seller in Seller’s conduct of such defense to the extent reasonably requested by Seller and at Seller’s expense and, so long as Seller is vigorously defending such claim, action, suit or proceeding, the Buyer Indemnified Parties shall not settle or compromise the same. Notwithstanding the foregoing, without the prior written consent of Buyer, Seller shall not be entitled to settle any claim, action, suit or proceedings the defense of which has been assumed by Seller if (i) the Losses to Buyer Indemnified Parties are not fully covered by Seller provided herein, (ii) such settlement could reasonably be expected to have a Material Adverse Effect or impose any material condition or limitation on the business, operations, prospects or condition (financial or otherwise) of Buyer or the Business, or (iii) such settlement involves a criminal matter. Notwithstanding the third sentence of this Section 9.1(b), Buyer may, by notice to Seller, assume its exclusive right to defend, compromise or settle any claim, Action, suit or proceedings at Seller’s sole expense if (x) Seller is a Person against whom the claim is made and Buyer determines in good faith that joint representation would be inappropriate, (y) Seller fails to provide reasonable assurance to Buyer of his financial capacity to defend such claim and provide indemnification with respect to such claim or Buyer reasonably determines that Seller is not vigorously defending such claim, or (z) if Buyer reasonably determines that a claim may adversely affect it, any other Buyer Indemnified Party or any of their Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement.

Notice of Claim; Right to Defend. As soon as reasonably practicable, Buyer shall give to each of Seller prompt written notice of any claim, Action, suit, suit or demand or event which Buyer believes shall will give rise to a claim for indemnification under either Section 9.1 4.1 or Section 4.2 hereunder; provided, however, that the failure of Buyer to give such prompt written notice as soon as reasonably practicable shall not affect the Liability liability of Seller hereunder, except to the extent that the rights of Seller to defend himself itself or to cure or mitigate the Losses damages are actually prejudiced thereby. Thereafter, Buyer shall furnish to Seller, in reasonable detail, such information as it may have with respect to such Action claim; action, suit or other eventproceeding, including copies of any summons, complaint or other pleading which may have been served upon any Buyer Indemnified Party it or any written claim, demand, invoice, billing or other document evidencing or asserting the same. Buyer shall designate in writing all information and documents, which it furnishes to Seller pursuant to this Section 4.3 as being with respect to a claim, action, suit or proceeding under this Section 4.3. Provided Seller, within ten (10) days after receipt of such written notice from Buyer, shall acknowledge in writing to Buyer Seller’s 's assumption of full responsibility for defense and indemnification with respect to such claim, action, suit or proceeding, Seller shall have the right to assume defense of such claim, action, suit or proceedings through counsel selected by Seller and reasonably satisfactory to Buyer at their Seller's expense, and to contest or compromise such claim, action, suit or proceeding. Upon such assumption of defense by Seller, Buyer shall cooperate with Seller in Seller’s 's conduct of such defense to the extent reasonably requested by Seller and at Seller’s 's expense and, so long as Seller is vigorously defending such claim, action, suit or proceeding, the Buyer Indemnified Parties shall not settle or compromise the same. Notwithstanding the foregoing, without Without the prior written consent of Buyer, Seller shall not be entitled to settle any claim, action, suit or proceedings the defense of which has been assumed by Seller if (i) the Losses to Buyer Indemnified Parties are not fully covered by Seller the indemnities provided herein, or (ii) such settlement could reasonably be expected to might have a Material Adverse Effect or impose any material condition or limitation on the business, operations, prospects or condition (financial or otherwise) conducted by Seller as of Buyer or the BusinessClosing Date, or (iii) such settlement involves a criminal matter. Notwithstanding the third sentence of this Section 9.1(b), Buyer may, as continued by notice to Seller, assume its exclusive right to defend, compromise or settle any claim, Action, suit or proceedings at Seller’s sole expense if (x) Seller is a Person against whom the claim is made and Buyer determines in good faith that joint representation would be inappropriate, (y) Seller fails to provide reasonable assurance to Buyer of his financial capacity to defend such claim and provide indemnification with respect to such claim or Buyer reasonably determines that Seller is not vigorously defending such claim, or (z) if Buyer reasonably determines that a claim may adversely affect it, any other Buyer Indemnified Party or any of their Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this AgreementBuyer.

Notice of Claim; Right to Defend. As soon as reasonably practicableIf a third party commences any action, Buyer shall give to Seller written notice of suit or proceeding or asserts any claim, Action, suit, demand or event assessment (hereinafter individually or collectively referred to as a "THIRD PARTY CLAIM") in respect of which Buyer believes Parent claims or proposes to claim a Loss, the Stockholder Committee shall give rise to a claim for indemnification under Section 9.1 hereunder; provided, however, that the failure of Buyer to give such written be given prompt notice as soon as reasonably practicable shall not affect the Liability of Seller hereunder, except to the extent that the rights of Seller to defend himself or to cure or mitigate the Losses are actually prejudiced therebythereof by Parent. Thereafter, Buyer Parent shall furnish to Sellerthe Stockholder Committee, in reasonable detail, such information as it may have with respect to such Action claim, action, suit or other eventproceeding, including copies of any summons, complaint complaint, or other pleading which may have been served upon any Buyer Indemnified Party or any written claim, demand, invoice, billing or other document evidencing or asserting the same. Provided SellerParent shall designate in writing all information and documents which it furnishes to the Stockholder Committee pursuant to this SECTION 8.3 as being with respect to a claim, action, suit or proceeding under this SECTION 8.3. The Stockholders shall have the right, acting through the Stockholder Committee, subject to the provisions of this SECTION 8.3, to assume control of the defense, compromise or settlement thereof if (a) the amount of the Third Party Claim does not exceed the then remaining amount in the Indemnity Escrow Fund and/or the Additional Escrow Fund, as the case may be, against which a claim may be asserted under SECTION 8.2(b) hereof, and (b) the Stockholder Committee acknowledges the intention of the Stockholders to so defend by written notice to Parent within twenty (20) days after receipt of the notice of the Third Party Claim. Parent shall be entitled to defend such claim until it receives such notice. If the Stockholders are entitled to assume such defense and control and elect to do so, (i) the defense against the Third Party Claim shall be conducted by the Stockholder Committee, at the expense of the Stockholders, with counsel selected by the Stockholder Committee and reasonably satisfactory to Parent, (ii) Parent shall be entitled to participate in (but not control) such defense with its counsel and at its expense, (iii) the Stockholder Committee shall keep Parent fully advised as to the conduct of the defense if Parent has chosen not to participate in the defense, and (iv) no compromise or settlement shall be agreed to or made without Parent's written consent, which shall not be unreasonably withheld, delayed or conditioned. If the Stockholders elect to assume control of the defense, but fail to defend against the Third Party Claim as aforesaid, Parent may assume control of the defense and settle the Third Party Claim at the Stockholders' expense (up to then remaining amount in the Indemnity Escrow Fund and/or the Additional Escrow Fund, as the case may be). If the Stockholders do not elect, or do not have the right, to assume control of the defense, (x) Parent shall conduct the defense, with counsel selected by Parent and reasonably satisfactory to the Stockholder Committee, (y) the Stockholders, acting through the Stockholder Committee, shall be entitled to participate in (but not control) such defense at their expense, and (z) Parent shall keep the Stockholder Committee fully advised as to its conduct of such defense, if the Stockholders have chosen not to participate in the defense. Parent shall be free to compromise or settle such claim unless the Stockholder Committee within ten (10) days after receipt of such written notice from Buyer, shall acknowledge of the proposed compromise or settlement admits in writing to Buyer Seller’s assumption of that the full responsibility for defense and indemnification with respect to such claim, action, suit or proceeding, Seller shall have the right to assume defense amount of such claimclaim if adversely determined shall constitute a Loss for which indemnity shall be due to Parent hereunder. If such admission is made, action, suit no compromise shall be agreed to or proceedings through counsel selected by Seller and reasonably satisfactory to Buyer at their expense, and to contest or compromise such claim, action, suit or proceeding. Upon such assumption of defense by Seller, Buyer shall cooperate with Seller in Seller’s conduct of such defense to the extent reasonably requested by Seller and at Seller’s expense and, so long as Seller is vigorously defending such claim, action, suit or proceeding, the Buyer Indemnified Parties shall not settle or compromise the same. Notwithstanding the foregoing, made without the prior written consent of Buyerthe Stockholder Committee, Seller which shall not be entitled to settle any claim, action, suit or proceedings the defense of which has been assumed by Seller if (i) the Losses to Buyer Indemnified Parties are not fully covered by Seller provided herein, (ii) such settlement could reasonably be expected to have a Material Adverse Effect or impose any material condition or limitation on the business, operations, prospects or condition (financial or otherwise) of Buyer or the Business, or (iii) such settlement involves a criminal matter. Notwithstanding the third sentence of this Section 9.1(b), Buyer may, by notice to Seller, assume its exclusive right to defend, compromise or settle any claim, Action, suit or proceedings at Seller’s sole expense if (x) Seller is a Person against whom the claim is made and Buyer determines in good faith that joint representation would be inappropriate, (y) Seller fails to provide reasonable assurance to Buyer of his financial capacity to defend such claim and provide indemnification with respect to such claim or Buyer reasonably determines that Seller is not vigorously defending such claim, or (z) if Buyer reasonably determines that a claim may adversely affect it, any other Buyer Indemnified Party or any of their Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreementunreasonably withheld.

Notice of Claim; Right to Defend. As soon as reasonably practicablepractical, Buyer Sellers shall give to Seller Buyer prompt written notice of any claim, Action, suit, suit or demand or event which Buyer believes shall Sellers reasonably believe will give rise to a claim for indemnification under Section 9.1 hereunder9.2; provided, however, that the failure of Buyer Sellers to give such written notice as soon as reasonably practicable practical shall not affect the Liability liability of Seller Buyer hereunder, except to the extent that the rights of Seller Buyer to defend himself itself or to cure or mitigate the Losses damages are actually prejudiced thereby. Thereafter, Buyer Sellers shall furnish to SellerBuyer, in reasonable detail, such information as it they may have with respect to such Action or other event, including copies of any summons, complaint or other pleading which may have been served upon any Buyer the Seller Indemnified Party or any written claim, demand, invoice, billing or other document evidencing or asserting the same. Sellers shall designate in writing all information and documents that they furnish to Buyer pursuant to this Section 9.2(b) as being with respect to a claim, action, suit or proceeding under this Section 9.2(b). Provided SellerBuyer, within ten (10) days after receipt of such written notice from BuyerSellers, shall acknowledge in writing to Buyer SellerSellers Buyer’s assumption of full responsibility for defense and indemnification with respect to such claim, action, suit or proceeding, Seller Buyer shall have the right to assume defense of such claim, action, suit or proceedings proceeding through counsel reasonably selected by Seller and reasonably satisfactory to Buyer at their Buyer’s expense, and to contest or compromise such claim, action, suit or proceeding; provided that Buyer shall regularly inform Sellers of the status of such claim, action, suit or proceeding and provide Sellers the reasonable opportunity to participate in the defense or settlement of such claim, action, suit or proceeding. Upon such assumption of defense by SellerBuyer, Buyer the Seller Indemnified Parties shall cooperate with Seller Buyer in SellerBuyer’s conduct of such defense to the extent reasonably requested by Seller Buyer and at SellerBuyer’s expense and, so long as Seller Buyer is vigorously defending such claim, action, suit or proceeding, the Buyer Seller Indemnified Parties shall not settle or compromise the same. Notwithstanding the foregoing, without the prior written consent of Buyer, Seller shall not be entitled to settle any claim, action, suit or proceedings the defense of which has been assumed by Seller if (i) the Losses to Buyer Indemnified Parties are not fully covered by Seller provided herein, (ii) such settlement could reasonably be expected to have a Material Adverse Effect or impose any material condition or limitation on the business, operations, prospects or condition (financial or otherwise) of Buyer or the Business, or (iii) such settlement involves a criminal matter. Notwithstanding the third sentence of this Section 9.1(b), Buyer Sellers may, by notice to SellerBuyer, assume assumes its exclusive right to defend, compromise or settle any claim, Actionaction, suit or proceedings at Seller’s sole expense if (x) Seller Buyer is also a Person against whom the claim is made and Buyer determines Sellers determine in good faith that joint representation would be inappropriate, (y) Seller fails to provide reasonable assurance to Buyer of his financial capacity to defend such claim and provide indemnification with respect to such claim or Buyer reasonably determines that Seller is not vigorously defending such claim, or (z) if Buyer reasonably determines that a claim may adversely affect it, any other Buyer Indemnified Party or any of their Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement.

Notice of Claim; Right to Defend. As soon as reasonably practicablepractical, Buyer Seller shall give to Seller Buyer prompt written notice of any claim, Action, suit, suit or demand or event which Buyer Seller reasonably believes shall will give rise to a claim for indemnification under Section 9.1 hereunder9.2; provided, however, that the failure of Buyer Seller to give such written notice as soon as reasonably practicable practical shall not affect the Liability liability of Seller Buyer hereunder, except to the extent that the rights of Seller Buyer to defend himself itself or to cure or mitigate the Losses damages are actually prejudiced thereby. Thereafter, Buyer Seller shall furnish to SellerBuyer, in reasonable detail, such information as it they may have with respect to such Action or other event, including copies of any summons, complaint or other pleading which may have been served upon any Buyer the Seller Indemnified Party or any written claim, demand, invoice, billing or other document evidencing or asserting the same. Seller shall designate in writing all information and documents that they furnish to Buyer pursuant to this Section 9.2(b) as being with respect to a claim, action, suit or proceeding under this Section 9.2(b) . Provided SellerBuyer, within ten (10) days after receipt of such written notice from BuyerSeller, shall acknowledge in writing to Buyer SellerSeller Buyer’s assumption of full responsibility for defense and indemnification with respect to such claim, action, suit or proceeding, Seller Buyer shall have the right to assume defense of such claim, action, suit or proceedings proceeding through counsel reasonably selected by Seller and reasonably satisfactory to Buyer at their Buyer’s expense, and to contest or compromise such claim, action, suit or proceeding; provided that Buyer shall regularly inform Seller of the status of such claim, action, suit or proceeding and provide Seller the reasonable opportunity to participate in the defense or settlement of such claim, action, suit or proceeding. Upon such assumption of defense by SellerBuyer, Buyer the Seller Indemnified Parties shall cooperate with Seller Buyer in SellerBuyer’s conduct of such defense to the extent reasonably requested by Seller Buyer and at SellerBuyer’s expense and, so long as Seller Buyer is vigorously defending such claim, action, suit or proceeding, the Buyer Seller Indemnified Parties shall not settle or compromise the same. Notwithstanding the foregoing, without the prior written consent of Buyer, Seller shall not be entitled to settle any claim, action, suit or proceedings the defense of which has been assumed by Seller if (i) the Losses to Buyer Indemnified Parties are not fully covered by Seller provided herein, (ii) such settlement could reasonably be expected to have a Material Adverse Effect or impose any material condition or limitation on the business, operations, prospects or condition (financial or otherwise) of Buyer or the Business, or (iii) such settlement involves a criminal matter. Notwithstanding the third sentence of this Section 9.1(b), Buyer Sellers may, by notice to SellerBuyer, assume assumes its exclusive right to defend, compromise or settle any claim, Actionaction, suit or proceedings at Seller’s sole expense if (x) Seller Buyer is also a Person against whom the claim is made and Buyer determines Sellers determine in good faith that joint representation would be inappropriate, (y) Seller fails to provide reasonable assurance to Buyer of his financial capacity to defend such claim and provide indemnification with respect to such claim or Buyer reasonably determines that Seller is not vigorously defending such claim, or (z) if Buyer reasonably determines that a claim may adversely affect it, any other Buyer Indemnified Party or any of their Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement.

Notice of Claim; Right to Defend. As soon as reasonably practicable, Buyer Indemnified Party shall give to Seller written notice of any claim, Action, suit, suit or demand or event which Buyer Indemnified Party believes shall will give rise to a claim for indemnification under either Section 9.1 7.1 or Section 7.2 hereunder; provided, however, that the failure of Buyer Indemnified Party to give such prompt written notice as soon as reasonably practicable shall not affect the Liability liability of Seller hereunder, except to the extent that the rights of Seller to defend himself themselves or to cure or mitigate the Losses damages are actually prejudiced thereby. Thereafter, Buyer Indemnified Party shall furnish to Seller, in reasonable detail, such information as it may have with respect to such Action claim, action, suit or other eventproceeding, including copies of any summons, complaint or other pleading which may have been served upon any Buyer Indemnified Party it or any written claim, demand, invoice, billing or other document evidencing or asserting the same. Buyer Indemnified Party shall designate in writing all information and documents which it furnishes to Seller pursuant to this Section 7.3 as being with respect to a claim, action, suit or proceeding under this Section 7.3. Provided Seller, within ten (10) days after receipt of such written notice from BuyerBuyer Indemnified Party, shall acknowledge in writing to Buyer Indemnified Party Seller’s 's assumption of full responsibility for defense and indemnification with respect to such claim, action, suit or proceeding, Seller shall have the right to assume defense of such claim, action, suit or proceedings through counsel selected by Seller and reasonably satisfactory to Buyer at their Seller's expense, and to contest or compromise such claim, action, suit or proceeding. Upon such assumption of defense by Seller, Buyer Indemnified Party shall cooperate with Seller in Seller’s 's conduct of such defense to the extent reasonably requested by Seller and at Seller’s 's expense and, so long as Seller is vigorously defending such claim, action, suit or proceeding, the Buyer Indemnified Parties Party shall not settle or compromise the samesame without Seller's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, without Without the prior written consent of BuyerBuyer and Buyer Indemnified Party, Seller shall not be entitled to settle any claim, action, suit or proceedings the defense of which has been assumed by Seller if (i) the Losses to Buyer Indemnified Parties Party are not fully covered by Seller the indemnities provided herein, or (ii) such settlement could reasonably be expected to might have a Material Adverse Effect or impose any material condition or limitation on the business, operations, prospects or condition (financial or otherwise) conducted by Seller as of Buyer or the BusinessClosing Date, or (iii) such settlement involves a criminal matter. Notwithstanding the third sentence of this Section 9.1(b), Buyer may, as continued by notice to Seller, assume its exclusive right to defend, compromise or settle any claim, Action, suit or proceedings at Seller’s sole expense if (x) Seller is a Person against whom the claim is made and Buyer determines in good faith that joint representation would be inappropriate, (y) Seller fails to provide reasonable assurance to Buyer of his financial capacity to defend such claim and provide indemnification with respect to such claim or Buyer reasonably determines that Seller is not vigorously defending such claim, or (z) if Buyer reasonably determines that a claim may adversely affect it, any other Buyer Indemnified Party or any of their Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this AgreementBuyer.

Notice of Claim; Right to Defend. As soon as reasonably practicable, Buyer (a) The party seeking indemnification under this Article V (the “Indemnified Party”) shall give to Seller the other party (the “Indemnifying Party”) prompt written notice (the “Proceeding Notice”) of any claim, Action, suit, demand or event Proceeding which Buyer the Indemnified Party believes shall may give rise to a claim for indemnification under Section 9.1 hereunder; this Article V (the “Indemnification Proceeding”) by any Person who is not a Party to this Agreement, provided, however, that the failure of Buyer the Indemnified Party to give such prompt written notice as soon as reasonably practicable shall not affect the Liability of Seller hereunder, the Indemnifying Party hereunder except to the extent that the rights of Seller the Indemnifying Party to defend himself itself or to cure or mitigate the Losses are actually materially and irrevocably prejudiced therebyby the failure to give such notice. Thereafter, Buyer The Proceeding Notice shall furnish to Seller, describe the Indemnification Proceeding in reasonable detail, such information as it may have detail (to the extent then known by the Indemnified Party) and shall include copies of the following materials received by the Indemnified Party prior to its delivery of the Proceeding Notice with respect to such Action or other event, including copies of the Indemnification Proceeding: any summons, complaint complaints or other pleading which may have been pleadings served upon any Buyer the Indemnified Party Party, or any written claim, demand, invoice, billing or other document evidencing or asserting the same. Provided Sellersame (in each case, to the extent allowable under applicable Law). (b) If (i) the Indemnifying Party, within ten fifteen (1015) days after receipt of such written notice from Buyerthe Proceeding Notice, shall acknowledge acknowledges in writing to Buyer Seller’s assumption the Indemnified Party that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of full responsibility for any Losses the Indemnified Party may suffer relating to or arising out of the Indemnification Proceeding, subject to all of the applicable terms, conditions and limitations provided in this Article V, and provides the Indemnified Party at such time evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Indemnification Proceeding and pay, in cash, all Losses the Indemnified Party may suffer relating to or arising out of the Indemnification Proceeding, subject to all of the applicable terms, conditions and limitations provided in this Article V, (ii) the Indemnification Proceeding involves only money Losses and does not seek an injunction, specific performance or other equitable relief, (iii) settlement, or an adverse judgment with respect to, the Indemnification Proceeding is not in the good faith judgment of the Indemnified Party likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, (iv) the Indemnified Party has determined in good faith that there would be no conflict of interest or other materially detrimental or inappropriate matter associated with joint representation of the Indemnification Proceeding, (v) the Indemnifying Party conducts the defense of the Indemnification Proceeding actively and indemnification diligently, and (vi) the Indemnifying Party keeps the Indemnified Party fully and timely apprised of all developments, including any settlement offers, with respect to such claimthe Indemnification Proceeding and permits the Indemnified Party with the opportunity to participate in the defense of the Indemnification Proceeding (at its own expense, actionexcept as provided below), suit or proceeding, Seller then the Indemnifying Party shall have the right to assume and control the defense of such claim, action, suit or proceedings Indemnification Proceeding through counsel selected reasonably acceptable to the Indemnified Party at the Indemnifying Party’s expense; provided, however, that the Indemnifying Party will not consent to the entry or any order or judgment with respect to the Indemnification Proceeding without the prior written consent of the Indemnified Party, unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person by Seller and reasonably satisfactory to Buyer at their expensethe Indemnified Party or its Affiliates, and no effect on any other claims that are pending or may be made against the Indemnified Party or its Affiliates, and (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party. (c) If the Indemnifying Party elects to contest or compromise such claimassume and control the defense of an Indemnification Proceeding in accordance with Section 5.8(b) and subject to the conditions therein, action, suit or proceeding. Upon such assumption of defense by Seller, Buyer (i) the Indemnified Party shall cooperate with Seller the Indemnifying Party in Sellerthe Indemnifying Party’s conduct of such defense to the extent reasonably requested by Seller the Indemnifying Party and at Sellerthe Indemnifying Party’s expense andexpense, so long as Seller is vigorously defending such claim, action, suit or proceeding, and the Buyer Indemnified Parties Party shall not settle or compromise the same. Notwithstanding , and (ii) the foregoing, without Indemnified Party shall have the prior written consent of Buyer, Seller shall not be entitled right to settle employ counsel separate from the counsel employed by the Indemnifying Party in any claim, action, suit or proceedings such Indemnification Proceeding and to participate in the defense thereof, but the fees and expenses of which has been assumed any such counsel employed by Seller if the Indemnified Party shall be at the expense of the Indemnified Party, except to the extent (i) the Losses to Buyer Indemnified Parties are not fully covered employment thereof and the Indemnifying Party’s responsibility for such fees and expenses have been specifically authorized by Seller provided hereinthe Indemnifying Party in writing, (ii) such settlement could reasonably be expected the fees and expenses relate to have a Material Adverse Effect the period of time prior to the Indemnifying Party’s assumption of the defense of the Indemnification Proceeding, (iii) the Indemnifying Party has failed to assume the defense and employ counsel or impose any material condition or limitation on to the business, operations, prospects or condition (financial or otherwiseIndemnifying Party’s control of the Indemnification Proceeding in Section 5.8(b) of Buyer or the Businessbecomes unsatisfied, or (iiiiv) such settlement involves a criminal matter. Notwithstanding the third sentence reasonable fees and expenses of this Section 9.1(b), Buyer may, by notice the Indemnified Party’s counsel relate to Seller, assume the Indemnified Party’s reasonable and periodic evaluation of its exclusive right to defend, compromise or settle any claim, Action, suit or proceedings at Seller’s sole expense if (x) Seller is a Person against whom the claim is made rights and Buyer determines in good faith that joint representation would be inappropriate, (y) Seller fails to provide reasonable assurance to Buyer of his financial capacity to defend such claim and provide indemnification obligations with respect to such claim Indemnification Proceeding, including evaluating any settlement offers; provided, that in the case of (iv) above only, the fees and expenses subject to indemnification by the Indemnifying Party shall not exceed $75,000 per Indemnification Proceeding. If the Indemnifying Party does not elect to assume and control the defense of an Indemnification Proceeding in accordance with Section 5.8(b) or Buyer reasonably determines that Seller is if any condition to the Indemnifying Party’s control of an Indemnification Proceeding set forth in Section 5.8(b) becomes unsatisfied, the Indemnified Party may defend against the Indemnification Proceeding in any manner it may deem necessary or appropriate (and the Indemnified Party need not vigorously defending such claimconsult with, or (z) if Buyer reasonably determines that a claim may adversely affect itobtain any consent from, the Indemnifying Party in connection therewith). With respect to any Indemnification Proceeding, the Indemnified Party shall use commercially reasonable efforts to employ the same counsel on its behalf as any other Buyer Indemnified Party that is involved in the same Indemnification Proceeding or separate but similar Indemnification Proceedings in the same jurisdiction and arising out of the same general allegations or circumstances; provided, however, that an Indemnified Party shall be relieved of any obligation to employ the same counsel as another Indemnified Party if the Indemnified Party reasonably believes that due to a conflict of their Affiliates other than as a result interest employing such counsel would be inappropriate or detrimental to the Indemnified Party’s defense of monetary damages for which it would such Indemnification Proceeding and an Indemnified Party shall be entitled to indemnification under this Agreementemploy such local counsel as may be necessary or appropriate.

Notice of Claim; Right to Defend. As soon as reasonably practicable, Buyer shall give deliver to Seller Sellers written notice of any claim, Action, suit, demand or event which Buyer believes shall will give rise to a claim for indemnification under Section 9.1 hereunder; provided, however, that the failure of Buyer to give such written notice as soon as reasonably practicable shall not affect the Liability liability of the Seller Indemnifying Parties hereunder, except to the extent that the rights of the Seller Indemnifying Parties to defend himself themselves or to cure or mitigate the Losses are actually prejudiced thereby. Thereafter, Buyer shall furnish to SellerSellers, in reasonable detail, such information as it may have with respect to such Action or other event, including copies of any summons, complaint or other pleading or document which may have been served upon any Buyer Indemnified Party or any written claim, demand, invoice, billing or other document evidencing or asserting the same. Provided Sellerthe Seller Indemnifying Parties, within ten (10) days after receipt of such written notice from Buyer, shall acknowledge in writing to Buyer Seller’s the Seller Indemnifying Parties’ assumption of full responsibility for defense and indemnification with respect to such claimAction, action, suit or proceeding, the Seller Indemnifying Parties shall have the right to assume defense of such claim, action, suit or proceedings Action through counsel selected by the Seller Indemnifying Parties and reasonably satisfactory to Buyer at their expense, and to contest or compromise such claim, action, suit or proceedingAction. Upon such assumption of defense by Sellerthe Seller Indemnifying Parties, Buyer shall cooperate fully with the Seller Indemnifying Parties in Seller’s the Seller Indemnifying Parties’ conduct of such defense to the extent reasonably requested by the Seller and at Seller’s expense Indemnifying Parties and, so long as the Seller is Indemnifying Parties are vigorously defending such claim, action, suit or proceedingAction, the Buyer Indemnified Parties shall not settle or compromise the same. Notwithstanding the foregoing, without the prior written consent of Buyer, the Seller Indemnifying Parties shall not be entitled to settle any claim, action, suit or proceedings Action the defense of which has been assumed by the Seller Indemnifying Parties if (i) the Losses to Buyer Indemnified Parties are not fully covered by the Seller Indemnifying Parties provided herein, (ii) such settlement could reasonably be expected to have a Material Adverse Effect or impose any material condition or limitation on the business, operations, prospects or condition (financial or otherwise) of Buyer or the Business, or (iii) such settlement involves a criminal matter. Notwithstanding the third sentence of this Section 9.1(b), Buyer may, by notice to SellerSellers, assume its exclusive right to defend, compromise or settle any claim, Action, suit or proceedings at Seller’s the Seller Indemnifying Parties sole expense if (x) a Seller Indemnifying Party is a Person against whom the claim is made and Buyer determines reasonably and in good faith that joint representation would be inappropriatecreate a conflict of interest, (y) the Seller fails Indemnifying Parties fail to provide reasonable assurance to Buyer of his their financial capacity to defend such claim and provide indemnification with respect to such claim or Buyer reasonably determines that the Seller is Indemnifying Parties are not vigorously defending such claim, claim or (z) if Buyer reasonably determines that a claim may adversely affect it, any other Buyer Indemnified Party or any of their Affiliates other than as a result of monetary damages for which it would be entitled to full indemnification under this Agreement.

Notice of Claim; Right to Defend. As soon as reasonably practicable, Buyer (a) The party seeking indemnification under this Article VII (the “Indemnified Party”) shall give to Seller the other party (the “Indemnifying Party”) prompt written notice of any claim, Action, suit, demand Action or event which Buyer the Indemnified Party believes shall may give rise to a claim for indemnification under Section 9.1 hereunder; this Article VII, provided, however, that the failure of Buyer the Indemnified Party to give such prompt written notice as soon as reasonably practicable shall not affect the Liability liability of Seller hereunder, the Indemnifying Party hereunder except to the extent that the rights of Seller the Indemnifying Party to defend himself itself or to cure or mitigate the Losses are actually prejudiced thereby. Thereafter, Buyer the Indemnified Party shall furnish to Sellerthe Indemnifying Party, in reasonable detail, such information as it may have with respect to such Action or other event, including copies of any summons, complaint or other pleading which may have been served upon any Buyer Indemnified Party it or any written claim, demand, invoice, billing or other document evidencing or asserting the same. Provided Sellerthe Indemnifying Party, within ten (10) days after receipt of such written notice from Buyerthe Indemnified Party, shall acknowledge acknowledges in writing to Buyer Sellerthe Indemnified Party the Indemnifying Party’s assumption of full responsibility for defense and indemnification with respect to such claimAction, action, suit or proceeding, Seller the Indemnifying Party shall have the right to assume defense of such claim, action, suit or proceedings Action through counsel selected by Seller and reasonably satisfactory acceptable to Buyer the Indemnified Party at their the Indemnifying Party’s expense, and to contest or compromise such claim, action, suit or proceedingAction. Upon such assumption of defense by Sellerthe Indemnifying Party, Buyer the Indemnified Party shall cooperate with Seller the Indemnifying Party in Sellerthe Indemnifying Party’s conduct of such defense to the extent reasonably requested by Seller the Indemnifying Party and at Sellerthe Indemnifying Party’s expense and, so long as Seller the Indemnifying Party is vigorously defending such claim, action, suit or proceedingAction, the Buyer Indemnified Parties Party shall not settle or compromise the same. . (b) Notwithstanding the foregoingSection 7.3(a), (i) without the prior written consent of Buyer, Seller shall not be entitled to settle any claim, action, suit or proceedings Action the defense of which has been assumed by Seller if unless (iA) there is no admission of any violation of Law or any violation of the rights of any Person by the Buyer Indemnified Parties and no effect on any other claims that may be made against the Buyer Indemnified Parties or (B) the Losses to the Buyer Indemnified Parties are not fully covered by Seller the indemnities provided herein, ; and (ii) such settlement could reasonably be expected to have a Material Adverse Effect or impose any material condition or limitation on without the business, operations, prospects or condition (financial or otherwise) prior written consent of Buyer or the Business, or (iii) such settlement involves a criminal matter. Notwithstanding the third sentence of this Section 9.1(b)Seller, Buyer may, by notice to Seller, assume its exclusive right to defend, compromise or settle any claim, Action, suit or proceedings at Seller’s sole expense if (x) Seller is a Person against whom the claim is made and Buyer determines in good faith that joint representation would be inappropriate, (y) Seller fails to provide reasonable assurance to Buyer of his financial capacity to defend such claim and provide indemnification with respect to such claim or Buyer reasonably determines that Seller is shall not vigorously defending such claim, or (z) if Buyer reasonably determines that a claim may adversely affect it, any other Buyer Indemnified Party or any of their Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreementsettle any Action the defense of which has been assumed by Buyer unless (A) there is no admission of any violation of Law or any violation of the rights of any Person by the Seller Indemnified Parties and no effect on any other claims that may be made against the Seller Indemnified Parties or (ii) the Losses to the Seller Indemnified Parties are fully covered by the indemnities provided herein.