Common use of Retention of Counsel Clause in Contracts

Retention of Counsel. If a Proceeding shall be brought against an Indemnified Party and it shall notify the Indemnifying Party thereof in accordance with subsection (a) of this Section 8.3, the Indemnifying Party shall be entitled to assume the legal defense thereof and shall notify the Indemnified Party in writing, within ten (10) Business Days of receipt of the Indemnified Party Claim Notice, of its intent to assume the control of the defense of any such third party claims, including, at its own expense, employment of counsel reasonably satisfactory to the Indemnified Party (the “Indemnifying Party Defense Notice”); The Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the payment of such counsel’s fees and expenses shall have been specifically agreed upon in writing by the Indemnifying Party, (ii) the Indemnifying Party shall have failed to assume the defense of such action or (iii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been advised by such counsel that there is a conflict for counsel in representing both the Indemnifying Party and the Indemnified Party which cannot appropriately be waived. In any such case, the Indemnifying Party shall not, in connection with any one 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 fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for the Indemnified Party. Except as aforesaid, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or such action, the Indemnifying Party shall not be liable to the Indemnified Party under this Section for any attorneys’ fees or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. (i) In the event that the Indemnifying Party shall fail to give the Indemnifying Party Defense Notice within a reasonable time, the Indemnifying Party shall be deemed to have elected not to conduct the defense of the subject third party claim, and in such event the Indemnified Party shall have the right to conduct such defense and to compromise and settle such claim without the consent of the indemnitor.

Retention of Counsel. If a Proceeding shall be brought against an Indemnified Party and it shall notify the Indemnifying Party thereof In any dispute or proceeding arising under or in accordance connection with subsection (a) of this Section 8.3Agreement, the Indemnifying Party shall be entitled to assume the legal defense thereof and shall notify the Indemnified Party in writingincluding Article IX, within ten (10) Business Days of receipt of the Indemnified Party Claim Notice, of its intent to assume the control of the defense of any such third party claims, including, at its own expense, employment of counsel reasonably satisfactory to the Indemnified Party (the “Indemnifying Party Defense Notice”); The Indemnified Party Seller shall have the right right, at his election, to employ separate counsel retain the firm of Drinker Xxxxxx & Xxxxx LLP to represent him in such matter, and Buyer, for itself, the Company and each of their respective post-Closing Affiliates, hereby irrevocably waives and consents to any such representation in any such action matter and participate in the defense thereof, but the fees and expenses of communication by such counsel shall be at the expense to Seller in connection with any such representation of the Indemnified Party unless (i) the payment any fact known to such counsel arising by reason of such counsel’s fees and expenses shall have been specifically agreed upon in writing by prior representation of Seller or the Indemnifying PartyCompany. Buyer, (ii) the Indemnifying Party shall have failed to assume the defense of such action or (iii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been advised by such counsel that there is a conflict for counsel in representing both the Indemnifying Party and the Indemnified Party which cannot appropriately be waived. In any such caseitself, the Indemnifying Party shall notCompany, their respective post-Closing Affiliates and its and their respective successors and assigns, hereby irrevocably acknowledges and agrees that all communications between Seller and its counsel, including Drinker Xxxxxx & Xxxxx LLP, made in connection with the negotiation, preparation, execution, delivery and closing under, or any dispute or proceeding arising under or in connection with, this Agreement which, immediately prior to the Closing, would be deemed to be privileged communications of Seller or the Company and/or its counsel and would not be subject to disclosure to Buyer in connection with any one action process relating to a dispute arising under 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 fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for the Indemnified Party. Except as aforesaid, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or such action, the Indemnifying Party shall not be liable to the Indemnified Party under this Section for any attorneys’ fees or other expenses subsequently incurred by the Indemnified Party in connection with this Agreement or otherwise, shall continue after the defense thereof. (i) In Closing to be privileged communications with such counsel, and none of Buyer, the event Company, their respective post-Closing Affiliates or any Person purporting to act on behalf of or through Buyer, the Company or their respective post-Closing Affiliates shall seek to obtain the same by any process on the grounds that the Indemnifying Party shall fail privilege attaching to give such communications belongs to Buyer or the Indemnifying Party Defense Notice within a reasonable timeCompany and not Seller. Other than as explicitly set forth in this Section, the Indemnifying Party parties acknowledge that any attorney-client privilege attaching as a result of legal counsel representing the Company prior to the Closing shall survive the Closing and continue to be deemed to have elected not to conduct the defense a privilege of the subject third party claim, Company and in such event not Seller after the Indemnified Party shall have the right to conduct such defense and to compromise and settle such claim without the consent of the indemnitor.Closing. [Signature Page Follows]

Retention of Counsel. If a Proceeding In the event that the Company shall be brought obligated to indemnify Indemnitee or advance Expenses to Indemnitee as a result of any Proceeding against an Indemnified Party and it shall notify the Indemnifying Party thereof in accordance with subsection (a) of this Section 8.3Indemnitee, the Indemnifying Party Company, if appropriate, shall be entitled to assume the legal defense thereof and of such Proceeding, with counsel approved by Indemnitee, which approval shall notify not be unreasonably withheld, upon the Indemnified Party in writing, within ten (10) Business Days delivery to Indemnitee of receipt of the Indemnified Party Claim Notice, written notice of its intent election to assume do so. After delivery of such notice, approval of such counsel by Indemnitee and the control retention of such counsel by the defense of Company, the Company will not be liable to Indemnitee under this Agreement for any such third party claims, including, at its own expense, employment fees of counsel reasonably satisfactory subsequently incurred by Indemnitee with respect to the Indemnified Party that same Proceeding, provided (the “Indemnifying Party Defense Notice”); The Indemnified Party a) Indemnitee shall have the right to employ separate Indemnitee’s own counsel in any such action Proceeding at Indemnitee’s expense and participate (b) if (i) the employment of counsel by Indemnitee has been previously authorized by the Company, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of such defense, or (iii) the Company shall not, in fact, have employed counsel to assume defense thereofof such Proceeding, but then the fees and expenses of such Indemnitee’s counsel shall be at the expense of the Indemnified Party unless (i) the payment of such counsel’s fees and expenses Company. The Company shall have been specifically agreed upon in writing by the Indemnifying Party, (ii) the Indemnifying Party shall have failed not be entitled to assume the defense of such action or (iii) the named parties any Proceeding as to any such Proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party which Indemnitee shall have been advised by such counsel that there is a conflict reasonably made the conclusion provided for counsel in representing both the Indemnifying Party and the Indemnified Party which cannot appropriately be waivedclause (b)(ii) above. In any such case, the Indemnifying Party shall not, in connection with any one 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 fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for the Indemnified Party. Except as aforesaid, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or such action, the Indemnifying Party The Company shall not be liable to the Indemnified Party indemnify Indemnitee under this Section Agreement for any attorneys’ fees amounts paid in settlement of any action or claim effected without its prior written consent. Neither the Company nor Indemnitee will unreasonably withhold its or his consent to any proposed settlement. The Company shall not be obligated pursuant to the provisions of this Agreement to provide counsel, indemnify or advance Expenses to Indemnitee with respect to Proceedings or other expenses subsequently incurred claims initiated or brought voluntarily by the Indemnified Party in connection Indemnitee and not by way of defense, except with the defense thereof. (i) In the event that the Indemnifying Party shall fail respect to give the Indemnifying Party Defense Notice within proceedings brought to establish or enforce a reasonable timeright to indemnification or advancement of Expenses under this Agreement, the Indemnifying Party shall be deemed to have elected not to conduct Law or the defense of the subject third party claim, and in such event the Indemnified Party shall have the right to conduct such defense and to compromise and settle such claim without the consent of the indemnitorBylaws.

Retention of Counsel. If a Proceeding In the event that the Company shall be brought obligated to pay Indemnifiable Expenses as a result of any proceeding against an Indemnified Party and it shall notify the Indemnifying Party thereof in accordance with subsection (a) of this Section 8.3Indemnitee, the Indemnifying Party Company, if appropriate, shall be entitled to assume the legal defense thereof and of such proceeding, with counsel approved by Indemnitee, which approval shall notify not be unreasonably withheld, upon the Indemnified Party in writing, within ten (10) Business Days delivery to Indemnitee of receipt of the Indemnified Party Claim Notice, written notice of its intent election to assume do so. After delivery of such notice, approval of such counsel by Indemnitee and the control retention of such counsel by the defense of Company, the Company will not be liable to Indemnitee under this Agreement for any such third party claims, including, at its own expense, employment fees of counsel reasonably satisfactory subsequently incurred by that Indemnitee with respect to the Indemnified Party that same proceeding, provided that (the “Indemnifying Party Defense Notice”); The Indemnified Party i) Indemnitee shall have the right to employ separate Indemnitee’s own counsel in any such action proceeding at Indemnitee’s expense, and participate (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume defense thereofof such proceeding, but then the fees and expenses of such Indemnitee’s counsel shall be at the expense of the Indemnified Party unless (i) the payment of such counsel’s fees and expenses Company. The Company shall have been specifically agreed upon in writing by the Indemnifying Party, (ii) the Indemnifying Party shall have failed not be entitled to assume the defense of such action or (iii) the named parties any Indemnifiable Litigation as to any such Proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party which Indemnitee shall have been advised by such counsel that there is a conflict reasonably made the conclusion provided for counsel in representing both the Indemnifying Party and the Indemnified Party which cannot appropriately be waived(B) above. In any such case, the Indemnifying Party shall not, in connection with any one 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 fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for the Indemnified Party. Except as aforesaid, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or such action, the Indemnifying Party The Company shall not be liable to the Indemnified Party indemnify Indemnitee under this Section Agreement for any attorneys’ fees amounts paid in settlement of any action or claim effected without its prior written consent. Neither the Company nor Indemnitee will unreasonably withhold their consent to any proposed settlement. The Company shall not be obligated pursuant to the provisions of this Agreement to provide counsel, indemnify or advance expenses to Indemnitee with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to proceedings brought to establish or enforce a right to indemnification under this Agreement or any other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. (i) In the event that the Indemnifying Party shall fail to give the Indemnifying Party Defense Notice within a reasonable time, the Indemnifying Party shall be deemed to have elected not to conduct the defense statute or law or otherwise as required under Section 145 of the subject third party claim, and in such event the Indemnified Party shall have the right to conduct such defense and to compromise and settle such claim without the consent of the indemnitorDelaware General Corporation Law.

Retention of Counsel. If a Proceeding In the event that the Company shall be brought obligated to pay Indemnifiable Expenses as a result of any Proceeding against an Indemnified Party and it shall notify the Indemnifying Party thereof in accordance with subsection (a) of this Section 8.3Indemnitee, the Indemnifying Party Company, if appropriate, shall be entitled to assume the legal defense thereof and of such Proceeding, with counsel approved by Indemnitee, which approval shall notify not be unreasonably withheld, upon the Indemnified Party in writing, within ten (10) Business Days delivery to Indemnitee of receipt of the Indemnified Party Claim Notice, written notice of its intent election to assume do so. After delivery of such notice, approval of such counsel by Indemnitee and the control retention of such counsel by the defense of Company, the Company will not be liable to Indemnitee under this Agreement for any such third party claims, including, at its own expense, employment fees of counsel reasonably satisfactory subsequently incurred by that Indemnitee with respect to the Indemnified Party that same Proceeding, provided that (the “Indemnifying Party Defense Notice”); The Indemnified Party i) Indemnitee shall have the right to employ separate Indemnitee’s own counsel in any such action Proceeding at Indemnitee’s expense, and participate (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume defense thereofof such Proceeding, but then the fees and expenses of such Indemnitee’s counsel shall be at the expense of the Indemnified Party unless (i) the payment of such counsel’s fees and expenses Company. The Company shall have been specifically agreed upon in writing by the Indemnifying Party, (ii) the Indemnifying Party shall have failed not be entitled to assume the defense of such action or (iii) the named parties any Proceeding as to any such Proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party which Indemnitee shall have been advised by such counsel that there is a conflict reasonably made the conclusion provided for counsel in representing both the Indemnifying Party and the Indemnified Party which cannot appropriately be waived(B) above. In any such case, the Indemnifying Party shall not, in connection with any one 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 fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for the Indemnified Party. Except as aforesaid, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or such action, the Indemnifying Party The Company shall not be liable to the Indemnified Party indemnify Indemnitee under this Section Agreement for any attorneys’ fees amounts paid in settlement of any action or claim effected without its prior written consent. Neither the Company nor Indemnitee will unreasonably withhold its or his or her consent to any proposed settlement. The Company shall not be obligated pursuant to the provisions of this Agreement to provide counsel, indemnify or advance expenses to Indemnitee with respect to proceedings or other expenses subsequently incurred claims initiated or brought voluntarily by the Indemnified Party in connection Indemnitee and not by way of defense, except with the defense thereof. (i) In the event that the Indemnifying Party shall fail respect to give the Indemnifying Party Defense Notice within proceedings brought to establish or enforce a reasonable time, the Indemnifying Party shall be deemed right to have elected not to conduct the defense indemnification under this Agreement or any other statute or law or otherwise as required under Section 145 of the subject third party claim, and in such event the Indemnified Party shall have the right to conduct such defense and to compromise and settle such claim without the consent of the indemnitorDGCL.

Retention of Counsel. If a Proceeding The Buyer and National shall be brought against have the right to retain legal counsel of their choosing to represent an Indemnified National Party and it shall notify (subject to the Indemnifying approval of such Indemnified National Party thereof in accordance with subsection (a) of this Section 8.3which consent is not to be unreasonably withheld by the Indemnified National Party). If Buyer or National retains legal counsel as provided above, the Indemnifying Party shall be entitled to assume the Buyer and National will have no liability for any separate legal defense thereof and shall notify counsel chosen by the Indemnified Party in writingNational Party. If the Buyer and National, within ten (10) Business Days or either of receipt of them, assumes such defense, the Indemnified Party Claim Notice, of its intent to assume the control of the defense of any such third party claims, including, at its own expense, employment of counsel reasonably satisfactory to the Indemnified Party (the “Indemnifying Party Defense Notice”); The Indemnified National Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, it being understood that the Buyer and National shall control such defense, and in any such action or proceeding, the Indemnified National Party shall have the right to retain its own legal counsel, but the fees and expenses of such legal counsel shall be at the its own expense of the Indemnified Party unless (i) the payment Buyer and National and the Indemnified National Party mutually agree to the retention of such legal counsel’s fees and expenses shall have been specifically agreed upon in writing by the Indemnifying Party, or (ii) the Indemnifying Party shall have failed to assume the defense of such action or (iii) the named parties Parties to any such Proceeding suit, action or proceeding (including any impleaded partiesParties) include both the Indemnified Party Buyer or National and the Indemnifying Indemnified National Party, and in the opinion of recognized outside legal counsel to National, representation of the Buyer or National and the Indemnified National Party by the same legal counsel would result in a conflict of interest between Buyer or National, and the Indemnified National Party. Buyer and National shall be liable only for any settlement of any claim against an Indemnified National Party made with Buyer's written consent, which consent shall have been advised by such counsel that there is a conflict for counsel in representing both the Indemnifying Party not be unreasonably withheld, conditioned, or delayed. Buyer and the Indemnified Party which cannot appropriately be waived. In any such case, the Indemnifying Party National shall not, without the prior written consent of an Indemnified National Party, settle or compromise any claim, or permit a default or consent to the entry of any judgment in connection with any one action respect thereof, unless the settlement, compromise, or separate but substantially similar or related actions in consent includes, as an unconditional term thereof, the same jurisdiction arising out of giving by the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for the Indemnified Party. Except as aforesaid, after notice from the Indemnifying Party claimant to the Indemnified National Party of its election to assume the defense of such claim or such action, the Indemnifying Party shall not be liable to the Indemnified Party under this Section for any attorneys’ fees or other expenses subsequently incurred by the Indemnified Party an unconditional release from all liability and obligations in connection with the defense thereof. (i) In the event that the Indemnifying Party shall fail to give the Indemnifying Party Defense Notice within a reasonable time, the Indemnifying Party shall be deemed to have elected not to conduct the defense respect of the subject third party claim, and in such event the Indemnified Party shall have the right to conduct such defense and to compromise and settle such claim without the consent of the indemnitor.

Retention of Counsel. If a Proceeding any Litigation shall be brought against an Indemnified Party and it shall notify the Indemnifying Party thereof in accordance with subsection (a) of this Section 8.39.3, the Indemnifying Party shall be entitled to assume the legal defense thereof and shall notify the Indemnified Party in writing, within ten (10) Business Days of receipt of the Indemnified Party Claim Notice, of its intent to assume the control of the defense of any such third party claims, including, at its own expense, employment of counsel reasonably satisfactory to the Indemnified Party (the “Indemnifying Party Defense Notice”); thereof. The Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the payment of such counsel’s fees and expenses shall have been specifically agreed upon in writing by the Indemnifying Party, (ii) the Indemnifying Party shall have failed to assume the defense of such action, (iii) the Indemnifying Party, and/or its counsel, shall have failed to defend against any or all claims in such action after the Indemnifying Party assumed such defense (and during any period the Indemnifying Party has not assumed such defense) or (iiiiv) the named parties to any such Proceeding Litigation (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been advised by such counsel that there is a conflict for counsel in representing both the Indemnifying Party and the Indemnified Party which cannot appropriately be waived. In any such case, the Indemnifying Party shall not, in connection with any one 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 fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for the Indemnified Party. Except as aforesaid, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or such action, the Indemnifying Party shall not be liable to the Indemnified Party under this Section for any attorneys’ fees or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. (i) In the event that the Indemnifying Party shall fail to give the Indemnifying Party Defense Notice within a reasonable timethereof unless after assuming such defense, the Indemnifying Party shall be deemed to have elected does not to conduct the defense of the subject third party claim, and in defend such event the Indemnified Party shall have the right to conduct such defense and to compromise and settle such claim without the consent of the indemnitoraction.