Common use of Right to Contest Claims of Third Persons Clause in Contracts

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("“Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "“Third-Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder (notwithstanding the limitations contained in Section 9.6 hereof) because of a claim asserted by any claimant (other than an indemnified person hereunder) ("“Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to control any such matter including the right to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or of its obligation obligation, subject to any and all limitations contained in this Article 9, to indemnify the persons to be indemnified hereunder Indemnified Person or Indemnified Persons with respect to such Third-Third Person Claim; the Claim and to discharge (and does in fact so discharge) any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty (20) 20 days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (a) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that the conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-Person Claim"), provided that (i) the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; Claim (the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party), (ii) the Indemnifying Party has demonstrated to the reasonable satisfaction of the Indemnified Party the Indemnifying Party's financial wherewithal to accomplish its indemnification obligations with respect to such Third-Person Claim, (iii) the Indemnifying Party agrees that without the Indemnified Party's prior written consent it shall not (A) settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding related to the Third-Person Claim unless the settlement, compromise or consent also includes an express unconditional release of the Indemnified Party from all liability and obligations arising therefrom or (B) admit or otherwise concede that the Indemnified Party has committed, or caused to be committed by any person, any fraud or other crime, negligence, breach of statute or other act or omission affecting the reputation, and (iv) the Indemnifying Party shall keep the Indemnified Party informed of the status of the investigation, contest, conduct and settlement of such Third-Person Claim and shall consult in good faith with the Indemnified Party regarding the conduct of such Third-Person Claim and shall provide to the Indemnified Party for comment within a reasonable period prior to submission, all written submissions to any court or other tribunal with respect to the issues for which Indemnified Party is liable for an indemnity hereunder. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. Any election to defend made by the Indemnifying Party twenty (20) days or more after receipt of the aforesaid notice shall not be valid unless and until the Indemnifying Party also pays all attorneys' fees and other expenses incurred by the Indemnified Party in defense of the Third-Person Claim prior to such date. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("“Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, securecontest, contestassume the defense of, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that that, except with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, the Indemnifying Party has unconditionally acknowledged shall not consent to entry of any judgment or enter into any settlement (a) that would lead to liability or create any other obligation (whether monetary or otherwise) on the part of the Indemnified Party, (b) that requires an admission of wrongdoing on the part of the Indemnified Party, or (c) that does not include as an unconditional term thereof the giving by each Third Person claimant to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder of a release from all liability with respect to such Third-Third Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation declines in writing to indemnity and the Indemnified Party to investigate, contest, assume the defense of any such Third-of, or settle the Third Person Claim, (ai) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof. If the Indemnifying Party assumes the defense of any Third Person Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials, and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Person Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Person Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Person Claim, and which releases the Indemnified Party completely in connection with such Third Person Claim. Whether or not the Indemnifying Party assumes the defense of a Third Person Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise, or discharge, such Third Person Claim without the Indemnifying Party’s prior written consent.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third PersonTHIRD PERSON"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-Person ClaimTHIRD PERSON CLAIM"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until If the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, be entitled to assume and control defense of the matter and to look to be reimbursed by the Indemnifying Party for the full amount any reasonable costs of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of defense the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the samehad theretofore incurred. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Third Person Claim, (a) the Indemnified Party may shall defend against such claim, in provided that any settlement of such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice claim shall require the prior written consent of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriateconsent not to be unreasonably withheld or delayed, and (b) the Indemnifying Party may participate in (but not control) the defense of such actionclaim, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties parties hereto shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense defense, negotiation or settlement thereof.

Right to Contest Claims of Third Persons. If an Indemnified Injured Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Person hereunder ("“Third Person"”), the Indemnified Injured Party shall give a Notice of Claim to the Indemnifying Party reasonably prompt notice thereof promptly after such assertion is actually known to the Indemnified Injured Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice Notice of Claim unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Injured Party, and using counsel reasonably satisfactory to the Indemnified Injured Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), ; provided that the Indemnifying Party has unconditionally acknowledged to notified the Indemnified Injured Party in writing his or of its obligation election to indemnify the persons to be indemnified hereunder Injured Party with respect to such Third-Third Person Claim; and provided further that the Indemnified Indemnifying Party will not consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter without the written consent of the Injured Party (not to be withheld or delayed unreasonably) except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by the Internal Revenue Service against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until If the Indemnifying Party so acknowledges his or its obligation elects not to indemnifydefend the Injured Party with respect to such Third Person Claim, the Indemnified Injured Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defensematter. The failure of the Indemnifying Party to respond in writing to the aforesaid notice Notice of the Indemnified Party with respect to such Third-Person Claim within twenty thirty (2030) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (a) the Indemnified Injured Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Indemnified Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party believes that it is entitled to indemnification hereunder because of a claim (a “Third Person Claim”) asserted by any claimant (other than an indemnified person hereunder) Indemnified Party ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person Claims shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The In the event that the Third Person Claim seeks recovery of damages in an amount which either (i) is less than one hundred fifty percent (150%) of the maximum remaining amount of Indemnified Losses for which Sellers may be liable to indemnify the Buyer Indemnified Persons hereunder or (ii) could result in Indemnified Losses of at least $150,000 for which Sellers may be liable to indemnify the Buyer Indemnified Persons hereunder (in either case, a “Special Third Person Claim”), then the Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to assume the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by defense of such Special Third Person (a "Third-Person Claim"), Claim provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Special Third Person Claim; , subject to the applicable limitations on indemnification contained herein. Thereafter, the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Special Third Person Claim with its own counsel at its own expense; provided, unless however, that if separate representation of the Indemnified Party in connection with such Special Third Person Claim is necessary to avoid a conflict of interest, and the Indemnified Party is so advised, in which case writing, by counsel, such representation shall be at the expense of the Indemnifying Party; provided further, that if injunctive relief is being sought by the Third Person against the Indemnified Party in connection with such Special Third Person Claim, then that portion of the Special Third Person Claim for which injunctive relief is being sought shall, at the option of the Indemnified Party, be controlled by the Indemnified Party at the expense of the Indemnifying Party. Unless and until If the Indemnifying Party so acknowledges his or its obligation is obligated hereunder to indemnify, pay the fees and expenses of counsel for the Indemnified Party shall have the rightParty, at its option, to assume and control defense of the matter and to look to in no event will the Indemnifying Party be liable for the full amount fees and expenses of more than one counsel (and local counsel) for all Indemnified Parties. To the extent the proposed settlement of any Special Third Person Claim involves amounts in excess of the costs Sellers’ indemnification obligation hereunder, such settlement shall be subject to the written consent of defenseBuyer, unless such consent is unreasonably withheld or delayed. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-any Special Third Person Claim within twenty (20) business days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Special Third Person Claim, and with respect to all Third Person Claims which are not Special Third Person Claims, (a) the Indemnified Party may defend against assume and control the defense of such claim, in such manner as it may deem appropriateclaim by appropriate means, including, but not limited to, settling such claim, after giving notice claim (subject to the written consent of the same to the Indemnifying Party, unless such consent is unreasonably withheld or delayed), on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such actionprovided and, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks subject to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.the

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification damages hereunder because of a claim asserted by any claimant (other than an indemnified person Indemnified Party hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim, : (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and ; and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful wilful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("“Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; Claim and to discharge (and does in fact so discharge) any cost or expense arising out of such investigation, contest or settlement and such Indemnifying Party has presented evidence satisfactory to the Indemnified Party of its ability to discharge the obligations, including without limitation by establishment of an escrow account. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty (20) 20 days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (a) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-Third Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until If the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, be entitled to assume and control defense of the matter and to look to be reimbursed by the Indemnifying Party for the full amount any reasonable costs of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of defense the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the samehad theretofore incurred. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Third Person Claim, (a) the Indemnified Party may shall defend against such claim, in provided that any settlement of such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice claim shall require the prior written consent of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriateconsent not to be unreasonably withheld or delayed, and (b) the Indemnifying Party may participate in (but not control) the defense of such actionclaim, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties parties hereto shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense defense, negotiation or settlement thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-Third Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty (20) 20 calendar days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Person hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually prejudiced thereby. The Except as otherwise provided in this Section 8.5, the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within 30 days after receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look demand and receive from the Indemnifying Party, subject to the Indemnifying Party for Party’s right to dispute its obligation to indemnify the Indemnified Party, the full amount of the reasonable costs of defense. The failure of In the event that the Indemnifying Party shall fail to respond in writing to give the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim Defense Notice within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claimsaid 30 day period, (ai) the Indemnified Party may defend against such shall be entitled to have the control over said defense and settlement of the subject claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, will cooperate with its own counsel at its own expense. If the Indemnifying Party thereafter seeks and make available to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlementassistance and materials as it may reasonably request, (iii) the Indemnifying Party shall have the burden right at its expense to prove participate in the defense assisted by clear counsel of its own choosing, and convincing evidence (iv) the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all costs and settlement amounts paid or incurred in connection therewith. (b) In the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Person Claim within 30 days after receipt thereof and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and (iii) the Indemnified Party shall have the rights at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party shall not be required. (c) Notwithstanding anything to the contrary contained in this Section 8.5, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if unsuccessful, (A) would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party or (B) would reasonably be expected to exceed the then available balance of the Escrow Account, as mutually determined by the Indemnifying Party and the Indemnified Party or, if such a determination is not made within 15 days after the date on which the Indemnified Party responds to the Defense Notice by asserting its rights under this Section 8.5(c), in accordance with its reasonable judgment, (iv) subject to clause (iii)(B) above, that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or (v) in the case of the Parent Indemnified Persons, is subject to a claim for indemnification under Section 8.2(a)(v). In such event, the Indemnifying Party will still be subject to its obligations hereunder, but the Indemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. (d) Notwithstanding anything to the contrary in this Article 8, the Company and Stockholders shall not settle or resolve a proposed Tax adjustment that relates to a taxable period ending after the Closing Date without the prior written consent of the Parent Indemnified Parties, which shall not be unreasonably withheld or delayed. (e) With respect to Third Person claims and assertions, if any, that are included within the Scheduled Indemnity Matters, Representative shall not have any right to deliver a Defense Notice (other than with respect to the amount or type of any Losses that any Parent Indemnified Persons claim to have accrued or actually incurred) with respect to, and agrees that Parent shall be entitled to control the defense and/or and settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to of, any such Third-Person Claim and shall cooperate in the defense thereofScheduled Indemnity Matters.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to a party hereto asserted a claim for indemnification hereunder because of the assertion of a claim asserted by any claimant third person not a party to this Agreement (other than an indemnified person hereunder) (a "Third PersonParty Claim"), the Indemnified Party party asserting such claim shall give the Indemnifying Party other indemnifying party reasonably prompt notice thereof notice, but in no event more than ten business days after such said assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced therebyclaimant party. The Indemnifying Party indemnifying party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Partyclaimant, to investigate, secure, contest, or settle the claim alleged by such Third Person third person (hereinafter called a "Third-Person Claimcontest"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party claimant party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel voluntarily, at its own expense, unless separate representation is necessary in any such contest through representatives and counsel of its own choice, and, provided further, that any such action by the indemnifying party relating to avoid a conflict of interest, in which case such representation the contest shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look without prejudice to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and claimant party. (b) Except as provided otherwise in the Indemnifying Party may participate in (but not control) immediately preceding sentence, the defense indemnifying party shall bear all costs of such actioncontest and shall indemnify and hold the claimant party harmless from all costs, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlementfees, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement expenses of such Third-Person Claim constituted gross negligence or willful misconductcontest. The Parties parties hereto shall make mutually available to each other all relevant information in their possession relating to any such Third-Person Claim contest and shall cooperate in the defense thereof. (c) Any indemnifying party will have the right to defend the indemnified party against the Third Party Claim with counsel of its choice reasonably satisfactory to the indemnified party so long as (A) the indemnifying party notifies the indemnified party in writing within 15 days after the indemnified party has given notice of the Third Party Claim that the indemnifying party will indemnify the indemnified party from and against the entirety of any losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (B) the indemnifying party provides the indemnified party with evidence reasonably acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (C) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (D) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the indemnified party, likely to result in a material restriction upon the business practices of the indemnified party in respect of the Properties, and (E) the indemnifying party conducts the defense of the Third Party Claim actively and diligently. (d) So long as the indemnifying party is conducting the defense of the Third Party Claim in accordance with Section 9.3(c) above, (A) the indemnified party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (B) the indemnified party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the indemnifying party (which consent shall not unreasonably be withheld), and (C) the indemnifying party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless written agreement is obtained releasing the indemnified party from all liability thereunder and the indemnified party provides its written consent, which consent shall not be unreasonably withheld. The indemnified party shall cooperate in all reasonable respects with the indemnifying party and any attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. (e) In the event any of the conditions in Section 9.3(c) above is or becomes unsatisfied, however, (A) the indemnified party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it may deem appropriate (and the indemnified party need not consult with, or obtain any consent from, an indemnifying party in connection therewith), (B) the indemnifying party will reimburse the indemnified party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (C) the indemnifying parties will remain responsible for any losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Section 9

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Party hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such written notice unless, and then only to the extent that, an Indemnifying Party is actually and materially prejudiced thereby. The Except as otherwise provided in this Section 7.5, the Indemnifying Party shall then have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to Party (a “Defense Notice”) within fifteen (15) days after receipt from the Indemnified PartyParty of written notice of such claim, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of In the event that the Indemnifying Party shall fail to respond in writing to give the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim Defense Notice within twenty said fifteen (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim15)-day period, (ai) the Indemnified Party may defend against such shall be entitled to have the control over said defense and settlement of the subject claim, in (ii) the Indemnifying Party will cooperate with and make available to the Indemnified Party such manner assistance and materials as it may deem appropriatereasonably request, includingand (iii) the Indemnifying Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, but not limited to, settling such claim, after giving notice of the same to and the Indemnifying Party, on such terms as the Indemnified Party may deem appropriateif it is required to provide indemnification under this Agreement, will be liable for all costs and (b) the Indemnifying Party may participate settlement amounts paid or incurred in (but not control) the defense of such action, with its own counsel at its own expenseconnection therewith. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof, including cooperation with any insurer to the extent applicable. (b) In the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Person Claim within fifteen (15) days after receipt thereof and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance, personnel and materials as it may reasonably request, and (iii) the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed; provided, that consent of the Indemnified Party shall not be required in any of the following cases: (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Indemnified Party shall have no Liability with respect to any compromise or settlement of such Third Person Claims effected without its consent. (c) Notwithstanding anything to the contrary contained in this Section 7.5, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if successful, would set a precedent that would materially interfere with, or have a Material Adverse Effect on, the business or financial condition of the Indemnified Party, or (iv) that imposes Liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such event, the Indemnifying Party will still be subject to its obligations hereunder, and the Indemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Party ("a “Third Person"”), the Indemnified Party shall give promptly deliver to the Indemnifying Party reasonably prompt notice thereof a Claim Notice after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to promptly give such notice Claim Notice unless, and then only to the extent that, an Indemnifying Party is materially and adversely prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, Party to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-“Third Person Claim")”) so long as (i) the Indemnifying Party gives written notice to the Indemnified Party within twenty (20) days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any and all Indemnity Losses the Indemnified Party may suffer resulting from, provided arising out of, relating to, in the nature of, or caused by the Third Party Claim, (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party, (iii) the Third Party Claim does not relate to or otherwise arise in connection with any criminal or regulatory enforcement action, (iv) settlement of, an adverse judgment with respect to or the Indemnifying Party’s conduct of the defense of the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to include any findings of fact or admissions of culpability as to the Indemnified Party and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently; provided, that the Indemnifying Party has unconditionally acknowledged the right to settle and compromise such Third Person Claim only with the consent of the Indemnified Party (which consent may not be unreasonably withheld, conditioned or delayed) unless there is no finding or admission of any violation of legal requirements or any violation of the rights of any Person and no affect or any other claims that may be made against the Indemnified Party, and the sole relief provided is monetary damages that are paid in writing his or its obligation to indemnify full by the persons to be indemnified hereunder with respect to Indemnified Party; provided further, that any settlement shall include an unconditional release of such Third-Person Claim; claim against the Indemnified Party. (b) The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, as determined by the Indemnifying Party’s legal counsel in accordance with applicable Law, in which case such representation shall be at the expense of the Indemnifying Party. Unless . (c) Subject to the Indemnified Party’s compliance with Section 6.5(a), unless and until the Indemnifying Party so acknowledges his notifies the Indemnified Party pursuant to Section 6.5(a) of its intent to investigate, contest or its obligation to indemnifysettle a Third Person Claim, the Indemnified Party shall have the right, at its option, to assume and control the defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice a Notice of Claim of the Indemnified Party with respect to such Third-Third Person Claim within twenty thirty (2030) days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party does not so acknowledge his notify the Indemnified Party of its intent to investigate, contest or its obligation to indemnity and assume the defense of any such Third-settle a Third Person Claim, (ai) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; . If the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any expense such party incurs in connection with the defense thereof. However, the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to avoid a conflict of interest, the Indemnified Party that are different from or in which case such representation shall be at the expense addition to that of the Indemnifying Party, in which case, the Indemnifying Party shall be liable for the reasonable expenses of the Indemnified Party (including reasonable attorneys' fees). Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter Third-Party Claim and to look to the Indemnifying Party for the full amount of the its reasonable costs of such defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. Any election to defend made by the Indemnifying Party after such twenty (20) day period and shall not be valid unless and until the Indemnifying Party also pays all reasonable attorneys' fees and other reasonable expenses incurred by the Indemnified Party in defense of the Third-Person Claim prior to such date. If the Indemnifying Party assumes the defense of a Third-Party Claim, (i) the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party's prior written consent, and (ii) the Indemnifying Party shall be entitled to compromise or settle such claim, which compromise or settlement shall not be made without the written consent of the Indemnified Party (such consent not to be unreasonably withheld). If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, compromising or settling such claim, after giving notice which compromise or Settlement shall not be made without the written consent of the same Indemnifying Party (such consent not to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriatebe unreasonably withheld), and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Person hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is materially prejudiced thereby. The Except as otherwise provided in this Section 8.5, the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within fifteen (15) Business Days after receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of In the event that the Indemnifying Party shall fail to respond in writing to give the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim Defense Notice within twenty said fifteen (2015) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person ClaimBusiness Day period, (ai) the Indemnified Party may defend against such shall be entitled to have the control over said defense and settlement of the subject claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, will cooperate with its own counsel at its own expense. If the Indemnifying Party thereafter seeks and make available to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlementassistance and materials as it may reasonably request, and (iii) the Indemnifying Party shall have the burden right at its expense to prove participate in the defense assisted by clear counsel of its own choosing, and convincing evidence the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all costs and settlement amounts paid or incurred in connection therewith. (b) In the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Party Claim within fifteen (15) Business Days after receipt thereof and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and (iii) the Indemnified Party shall have the rights at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party shall not be required. (c) Notwithstanding anything to the contrary contained in this Section 8.5, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense and/or or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if unsuccessful, (A) would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party or (B) would reasonably be expected to exceed the Parent Cap or the Shareholders’ Cap, as applicable, in either case as mutually determined by the Indemnifying Party and the Indemnified Party or, if such Third-Person Claim constituted gross negligence a determination is not made within fifteen (15) Business Days after the date on which the Indemnified Party responds to the Defense Notice by asserting its rights under this Section 8.5(c), in accordance with its reasonable judgment, or willful misconduct(iv) subject to clause (iii)(B) above, that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. The Parties shall make available In such event, the Indemnifying Party will still be subject to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in its obligations hereunder but the defense thereofIndemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.

Right to Contest Claims of Third Persons. (a) Third Party Claims (Other than the Scheduled Indemnity Matters). (i) If an Indemnified Party is entitled to indemnification hereunder because of a claim (other than the Scheduled Indemnity Matters) asserted by any claimant (other than an indemnified person hereunder) Indemnified Person hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually prejudiced thereby. The Except as otherwise provided in this Section 8.5, the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within 30 days after receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided provided, that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expenseand to discharge any cost or expense arising out of such investigation, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Partycontest or settlement. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look demand and receive from the Indemnifying Party, subject to the Indemnifying Party for Party’s right to dispute its obligation to indemnify the Indemnified Party, the full amount of the reasonable costs of defense. The failure of In the event that the Indemnifying Party shall fail to respond in writing to give the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim Defense Notice within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claimsaid 30 day period, (aA) the Indemnified Party may defend against such shall be entitled to have the control over said defense and settlement of the subject claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (bB) the Indemnifying Party may participate in (but not control) the defense of such action, will cooperate with its own counsel at its own expense. If the Indemnifying Party thereafter seeks and make available to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlementassistance and materials as it may reasonably request, (C) the Indemnifying Party shall have the burden right at its expense to prove participate in the defense assisted by clear counsel of its own choosing, and convincing evidence (D) the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all costs and settlement amounts paid or incurred in connection therewith. (ii) In the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Person Claim within 30 days after receipt thereof and thereby elects to conduct the defense of the subject claim, (A) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (B) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and (C) the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless (1) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (2) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (3) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party shall not be required. (iii) Notwithstanding anything to the contrary contained in this Section 8.5(a), the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense or settlement of any claim (A) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (B) that involves criminal allegations against the Indemnified Party, (C) that, if unsuccessful, (1) would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party or (2) would reasonably be expected to exceed the then available balance of the Escrow Account, as mutually determined by the Indemnifying Party and the Indemnified Party or, if such a determination is not made within 15 days after the date on which the Indemnified Party responds to the Defense Notice by asserting its rights under this Section 8.5(a)(ii), in accordance with its reasonable judgment, or (D) subject to clause (C)(2) above, that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or, in the defense and/or settlement case of the Parent Indemnified Persons, is subject to a claim for indemnification under Section 8.2(a)(v). In such Third-Person Claim constituted gross negligence event, the Indemnifying Party will still be subject to its obligations hereunder, but the Indemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereofdelayed.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Thirda"Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) 20 calendar days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person Person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-Third Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty (20) 20 calendar days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person ClaimClaim within the 20 calendar days, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party claims that it is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Party hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually and materially prejudiced thereby. The Except as otherwise provided in this Section 8.3, the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) at any time following receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge any Indemnified Losses incurred in connection therewith. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defensedefense to the extent they are Indemnified Losses. The failure of In the event that the Indemnifying Party shall fail to respond in writing to give the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person ClaimDefense Notice, (ai) the Indemnified Party may defend against such shall be entitled to have the control over said defense and settlement of the subject claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, will cooperate with its own counsel at its own expense. If the Indemnifying Party thereafter seeks and make available to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlementassistance and materials as it may reasonably request, and (iii) the Indemnifying Party shall have the burden right at its expense to prove participate in the defense assisted by clear counsel of its own choosing, and convincing evidence the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all Indemnified Losses incurred in connection therewith. (b) In the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Person Claim and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and (iii) the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (ii) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereofnot be required.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Person hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person an Indemnified Party to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to so give such notice unless, and then only to the extent that, an Indemnifying Party is materially prejudiced thereby. The Except as otherwise provided in this Section 7.5, the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within 30 days after receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of In the event that the Indemnifying Party shall fail to respond in writing to give the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim Defense Notice within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claimsaid 30 day period, (ai) the Indemnified Party may defend against such shall be entitled to have the control over said defense and settlement of the subject claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, will cooperate with its own counsel at its own expense. If the Indemnifying Party thereafter seeks and make available to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlementassistance and materials as it may reasonably request, and (iii) the Indemnifying Party shall have the burden right at its expense to prove participate in the defense assisted by clear counsel of its own choosing, and convincing evidence the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all costs and settlement amounts paid or incurred in connection therewith. (b) In the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Party Claim within 30 days after receipt thereof and thereby elects to conduct the defense of such Third Party Claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance, personnel and materials as it may reasonably request, and (iii) the Indemnified Party shall have the rights at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless (x) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (y) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and (z) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party shall not be required. (c) Notwithstanding anything to the contrary contained in this Section 7.5, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense and/or or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if unsuccessful, (A) would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party or (B) would reasonably be expected to exceed the Parent Cap, the Parent Special Matters Cap, the Unitholder Special Matters Cap or the Unitholders’ Cap, as applicable, in any case as mutually determined by the Indemnifying Party and the Indemnified Party or, if such Third-Person Claim constituted gross negligence a determination is not made within 15 days after the date on which the Indemnified Party responds to the Defense Notice by asserting its rights under this Section 7.5(c), in accordance with its reasonable judgment or willful misconduct(iv) subject to clause (iii)(B) above, that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. The Parties shall make available In such event, the Indemnifying Party will still be subject to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in its obligations hereunder but the defense thereofIndemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person Indemnified Person hereunder) ("“Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge (and does in fact so discharge) any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interestinterest (based upon a written opinion of counsel provided to the Indemnifying Party), in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty (20) days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (a) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder (notwithstanding the limitations contained in Section 9.6 hereof) because of a claim (including notice of any tax audit, examination or other similar inquiry) asserted by any claimant (other than an indemnified person hereunder) ("“Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to control any such matter, including the right to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), ; provided that the Indemnifying Party has unconditionally acknowledged in writing to the Indemnified Party its obligation, subject to any and all limitations contained in writing his or its obligation this Article 9, to indemnify the persons to be indemnified hereunder Indemnified Party with respect to such Third-Third Person ClaimClaim and to discharge (and does in fact so discharge) any cost or expense arising out of such investigation, contest or settlement; and provided, further, that no Third Person Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, or if, in the reasonable judgment of the Indemnified Party, the Indemnifying Party is not diligently pursuing the defense of the Third Party Claim, then the Indemnified Party shall have the right, at its option, to assume and control the defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of investigation and defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any settlement of such settlementThird Person Claim, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that the conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof. Notwithstanding the foregoing, Parent or Xxxxx Brothers shall have the right to represent the interests of the Company in any Third Person Claim for Taxes with respect to a Straddle Period; provided, however, that the Sellers’ Representative shall be entitled to participate in (but not control) the defense of such claim at the Sellers’ expense; and provided, further, that neither Parent nor Xxxxx Brother shall settle or compromise any such Third Person Claim for Taxes without the consent of the Sellers’ Representative (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement or compromise could reasonably be expected to result in any Indemnified Loss for which the Sellers would have an indemnification obligation under this Agreement.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Person hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually and materially prejudiced thereby. The Except as otherwise provided in this Section 11.05, the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within fifteen (15) days after receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally irrevocably acknowledged to the Indemnified Party in writing his or its obligation to indemnify indemnify, in accordance with this Article 11 and subject to Section 11.04 and 11.06 hereof, the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge any cost or expense arising out of such investigation, contest, or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of In the event that the Indemnifying Party shall fail to respond in writing to give the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim Defense Notice within twenty said fifteen (2015) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claimday period, (ai) the Indemnified Party may defend against such shall be entitled to have the control over said defense and settlement of the subject claim, in (ii) the Indemnifying Party will cooperate with and make available to the Indemnified Party such manner assistance and materials as it may deem appropriatereasonably request, includingand (iii) the Indemnifying Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, but not limited to, settling such claim, after giving notice of the same to and the Indemnifying Party, on such terms as the Indemnified Party may deem appropriateif it is required to provide indemnification under this Agreement, will be liable for all costs and (b) the Indemnifying Party may participate settlement amounts paid or incurred in (but not control) the defense of such action, with its own counsel at its own expenseconnection therewith. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof, including cooperation with any insurer to the extent applicable. (b) In the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Party Claim within fifteen (15) days after receipt thereof and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and (iii) the Indemnified Party shall have the rights at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed, unless (A) there is no finding or admission of any violation of Applicable Law or any violation of the rights of any Person; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party shall not be required. (c) Notwithstanding anything to the contrary contained in this Section 11.05, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that involves a customer or supplier of the Indemnified Party or its Affiliates or a Governmental Entity, (iv) that, if unsuccessful, would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (v) that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such event, the Indemnifying Party will still be subject to its obligations hereunder, and the Indemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. (d) Notwithstanding anything to the contrary contained herein, the Parties acknowledge that, to the extent required by an insurer under the Representation and Warranty Policy or any other applicable policy of insurance in connection with any claim made by a Buyer Indemnified Person thereunder, the conduct of the defense or prosecution of any Third Party Claim may be assigned to counsel selected or approved by the insurer under the Representation and Warranty Policy or other applicable policy of insurance, or otherwise conducted in coordination with the insurer under the Representation and Warranty Policy or other applicable policy of insurance, in each case without prejudice to the rights of the Parties hereunder, and the Sellers’ Representative and the Buyer Indemnified Persons will reasonably cooperate at Buyer’s expense with the insurer under the Representation and Warranty Policy or other applicable policy of insurance and such counsel in the defense of the Third Party Claim and otherwise comply with the requirements of the Representation and Warranty Policy or other applicable policy of insurance applicable to such Party in connection therewith.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Party hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually and materially prejudiced thereby. The Except as otherwise provided in this Section 8.5, the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within fifteen (15) days after receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; Claim and to discharge any cost or expense arising out of such investigation, contest, or settlement (subject to the limitation set forth in this Article 8). The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of In the event that the Indemnifying Party shall fail to respond in writing to give the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim Defense Notice within twenty said fifteen (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim15)-day period, (ai) the Indemnified Party may defend against such shall be entitled to have the control over said defense and settlement of the subject claim, in (ii) the Indemnifying Party will cooperate with and make available to the Indemnified Party such manner assistance and materials as it may deem appropriatereasonably request, includingand (iii) the Indemnifying Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, but not limited to, settling such claim, after giving notice of the same to and the Indemnifying Party, on such terms as the Indemnified Party may deem appropriateif it is required to provide indemnification under this Agreement, will be liable for all costs and (b) the Indemnifying Party may participate settlement amounts paid or incurred in (but not control) the defense of such action, with its own counsel at its own expenseconnection therewith. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof, including cooperation with any insurer to the extent applicable. (b) Subject to the other terms of this Section 8.5, in the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Person Claim within fifteen (15) days after receipt thereof and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and (iii) the Indemnified Party shall have the rights at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed, unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party shall not be required. (c) Notwithstanding anything to the contrary contained in this Section 8.5, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if successful, would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (iv) that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such event, the Indemnifying Party will still be subject to its obligations hereunder, and the Indemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. (d) Notwithstanding anything to the contrary contained herein, to the extent required by the carrier of the R&W Insurance Policy in connection with any claim made by a Buyer Indemnified Person thereunder, the conduct of the defense or prosecution of any Third Party Claim will be assigned to counsel selected or approved by the carrier of the R&W Insurance Policy, or otherwise conducted in coordination with the carrier of the R&W Insurance Policy, in each case without prejudice to the rights of the parties hereunder, and Seller and the Buyer Indemnified Persons will reasonably cooperate at Buyer’s expense with the carrier of the R&W Insurance Policy and such counsel in the defense of the Third Party Claim and otherwise comply with the requirements of the R&W Insurance Policy applicable to such party in connection therewith.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereundera Constellation Indemnified Person or HOF Entity Indemnified Person) ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; Party; provided, however, that the right of a person or entity to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons and entities to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge (and does in fact so discharge) any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty thirty (2030) days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (ai) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to seek indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) a Seller Indemnified Person or Buyer Indemnified Person ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually and materially prejudiced thereby. The Except as otherwise provided in this Section 9.06, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation that the Indemnified Party is entitled to indemnify indemnification hereunder for all Indemnified Losses arising out of such Third Person Claim and that the persons Indemnifying Party shall be liable for the entire amount of any such Indemnified Losses, subject to be indemnified hereunder the limitations set forth in this Agreement and so long as (i) the Indemnifying Party thereafter consults with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such Third-Third Person Claim; , (ii) the Indemnifying Party conducts the defense of the Third Person Claim actively and diligently, (iii) the Third Person Claim involves only a claim for money damages, in an amount equal to or less than the amount then remaining in the Indemnity Escrow Fund (iv) the Third Party Claim does not involve a claim (A) for a temporary restraining order, (B) for a preliminary or permanent injunction, (C) for specific performance against the Indemnified Party, (D) with criminal allegations against the Indemnified Party, (E) that, if unsuccessful, would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party and (F) that imposes Liability on the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and (v) the Indemnifying Party obtains the prior written consent of the Indemnified Party with respect to any settlement (which consent shall not be unreasonably withheld). In the event any of the foregoing conditions are or become unsatisfied, the Indemnified Party shall have the right, but not the obligation, to defend against the Third Person Claim. The Indemnified Party may take any actions reasonably necessary to defend such Third Person Claim prior to the time that it receives a notice from the Indemnifying Party assuming the defense of such Third Person Claim as contemplated by this Section 9.06(a), and the Indemnifying Party shall pay the costs and expenses of any such actions taken by the Indemnified Party. (b) In the event the Indemnifying Party provides the acknowledgement required by Section 9.06(a) and the conditions set forth in Section 9.06(a) are satisfied, the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the reasonable expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnifyindemnify as required by Section 9.06(a) and the conditions set forth in Section 9.06(a) are satisfied, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. . (c) The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty thirty (2030) days after receipt thereof shall be deemed an irrevocable election not to defend the same. Notwithstanding anything to the contrary contained in this Section 9.06, in connection with any Third Person Claim in which the Indemnified Party shall reasonably conclude that (i) there is a threat of any relief other than solely monetary damages being granted, (ii) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Person Claim or (iii) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense of such Third Person Claim. In such an event, with respect to the costs of defending such Third Person Claim, the Indemnifying Party need only pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim or the Indemnified Party otherwise exercises its rights contained herein to assume and direct the defense of such Third Person Claim, (ax) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, including settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (by) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. . (d) The Parties parties hereto shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof. (e) Notwithstanding anything to the contrary contained in this Section 9.06, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if unsuccessful, would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party or (iv) imposes Liability on the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such event, the Indemnifying Party shall remain subject to its obligations hereunder.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder (notwithstanding the limitations contained in Section 9.6 hereof) because of a claim asserted by any claimant (other than an indemnified person hereunder) ("“Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to control any such matter including the right to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or of its obligation obligation, subject to any and all limitations contained in this Article 9, to indemnify the persons to be indemnified hereunder Indemnified Person or Indemnified Persons with respect to such Third-Third Person Claim; the Claim and to discharge (and does in fact so discharge) any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that the conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted against it by any claimant (other than an indemnified person Person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Person Claim; the . The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party shall be responsible for paying the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense 50 of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim Claim, subject to protection of attorney client and attorney work product privileges, and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person Person hereunder) ("“Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "“Third-Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Third Person Claim; Claim and to discharge (and does in fact so discharge) any cost or expense arising out of such investigation, contest or settlement and such Indemnifying Party has presented evidence reasonably satisfactory to the Indemnified Party of its ability to discharge the obligations, including without limitation by establishment of an escrow account. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty (20) 20 days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (a) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their its possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) (a "Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim, : (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and ; and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. (a) . (a) If an Indemnified Party believes that it is entitled to indemnification hereunder because of a claim (a "Third Person Claim") asserted by any claimant (other than an indemnified person hereunder) Indemnified Party (a "Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably or Parties prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person Claims for which such notice is required shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an the Indemnifying Party or Parties from whom such indemnity is sought is prejudiced thereby. (b) If with respect to a Third Person Claim (including, without limitation, any exercise of Dissenter's Rights by a Stockholder of the Company) for which a Parent Indemnified Person seeks recovery of Indemnified Losses in an amount which is less than the remaining amount of Escrow Funds which do not represent Claimed Amounts (as defined in the Escrow 71. The Indemnifying Party Agreement) or Disputed Amounts (hereinafter referred to as a "Parent Special Third Person Claim"), then the Representatives (or the Preferred Stockholder with respect to an Excluded Matter) shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Parent Indemnified Party, to investigateassume the defense, secureprosecution, contest, settlement or settle the claim alleged by compromise of such Parent Special Third Person (a "Third-Person Claim"), ; provided that the Representatives, on behalf of the Indemnifying Party has or Parties (or the Preferred Stockholder with respect to an Excluded Matter) have unconditionally acknowledged to the Indemnified Party Parent in writing his the obligation of the Indemnifying Party or its obligation Parties to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Parent Special Third Person Claim; the Indemnified Party . Thereafter, Parent may thereafter participate in (but not control) the defense of any such Third-Parent Special Third Person Claim with its own counsel at its own expense; provided, unless however, that if separate representation of the Parent Indemnified Party in connection with any such Parent Special Third Person Claim is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until Party or Parties; provided further, that if injunctive relief is being sought by the Third Person against the Parent Indemnified Party in connection with such Parent Special Third Person Claim, then that portion of the Parent Special Third Person Claim for which injunctive relief is being sought shall, at the option of Parent, be controlled by Parent at the expense of the Indemnifying Party so acknowledges his or its obligation to indemnify, Parties. To the extent the proposed settlement of any Parent Special Third Person Claim involves amounts in excess of the Escrow Funds which do not represent Claimed Amounts or Disputed Amounts or otherwise does not provide the Parent Indemnified Party shall have with a complete release with respect to such matter and does not otherwise restrict the right, at its option, to assume ownership and control defense operation of the matter Acquired Companies' assets and to look businesses, such settlement shall be subject to the Indemnifying Party for the full amount written consent of the costs of defenseParent. The failure of the Representatives, on behalf of the Indemnifying Party or Parties (or the Preferred Stockholder with respect to an Excluded Matter) to respond in writing to the aforesaid notice of the Parent Indemnified Party with respect to such Third-any Parent Special Third Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Representatives, on behalf of the Indemnifying Party does or Parties (or the Preferred Stockholder with respect to an Excluded Matter) do not so acknowledge his the obligation of the Indemnifying Party or its obligation Parties to indemnity indemnify and assume the defense of any such Third-Parent Special Third Person ClaimClaim in the manner set forth above, and with respect to all Parent Third Person Claims which are not Parent Special Third Person Claims, (ai) Parent may assume and control the Indemnified Party may defend against defense of such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claimclaim on such terms as Parent may deem appropriate, after after, with respect to Parent Special Third Person Claims only, first giving notice of the same proposed terms of any such settlement to the Representatives (or the Preferred Stockholder with respect to an Excluded Matter) and providing the Representatives (or the Preferred Stockholder with respect to an Excluded Matter) with an opportunity to assume at that time the defense of the same by providing the unconditional acknowledgment and reimbursement described above, and, subject to the procedures set forth in Section 9.5, the applicable Indemnifying Party, on such terms as Party or Parties shall be responsible for paying the Indemnified Party may deem appropriatefull amount of the costs of defense for any Parent Third Person Claim or Parent Special Third Person Claim, and (bii) the Representatives (or the Preferred Stockholder with respect to an Excluded Matter) or the Indemnifying Party or Parties may participate in (but not control) the defense of such action, with its own counsel at its own expense. . (c) If the Indemnifying Party thereafter seeks with respect to question the manner in which the Indemnified Party defended such Third-a Third Person Claim or for which a Stockholder Indemnified Person seeks recovery of Indemnified Losses, then the amount or nature Parent on behalf of any such settlement, itself and/or the Indemnifying Party Surviving Corporation shall have the burden right, upon written notice to prove by clear and convincing evidence that conduct of the Stockholder Indemnified Party in Party, to assume the defense and/or defense, prosecution, settlement or compromise of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an ---------------------------------------- Indemnified Party is entitled to asserts a claim for indemnification hereunder because of a claim asserted made by any claimant (other than an indemnified person hereunder) ("Third Person")not a party, the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof thereof, but in no event more than ten (10) business days after such said assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person third party shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person third person (hereinafter called a "Third-Person Claim"), provided that the Indemnified Party may participate voluntarily, at its own expense, in any such Third-Person Claim through representatives and counsel of its own choice, and, provided further, that the Indemnifying Party has unconditionally acknowledged acknowledges to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to all elements of such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation elects to indemnifydefend the Third-Person Claim, the Indemnified Party shall have the full right, at its option, to assume and control defense of the matter do so and to look to the Indemnifying Party under the provisions of this Agreement for the full amount of the costs costs, if any, of defense. The failure of the Indemnifying Party to respond in writing to 56 62 the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. Notwithstanding the foregoing, an Indemnifying Party shall only be responsible for the fees and expenses of one counsel for all Indemnified Parties with respect to any Third-Person Claim. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim, including any litigation resulting therefrom, (a) the Indemnified Party may defend against such claimclaim or litigation, in such manner as it may deem appropriate, including, but not limited to, settling such claimclaim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may shall be entitled to participate in (but not to control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of did not defend or settle such Third-Person Claim constituted gross negligence or willful misconductin a reasonably prudent manner. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof. Notwithstanding the provisions of this Section, CAM shall control the defense and settlement or resolution of the Pending Litigation, provided that the consent of the Representative, which may not be unreasonably withheld, must be obtained prior to the settlement of such litigation in excess of applicable insurance proceeds.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) hereunder (a "Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced therebythereof. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, control the defense of or settle the claim alleged by such Third Person (a "Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation shall fail to indemnity and assume the defense of any such Third-Person Claim, , (a) the Indemnified Party Party, in good faith, may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving at least thirty (30) days' advance notice of the same any proposed settlement to the Indemnifying Party and receiving the Indemnifying Party's prior written consent, which may not be unreasonably withheld, on such terms as the Indemnified Party Party, in good faith, may deem appropriate, and and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to seek indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Person hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually and materially prejudiced thereby. The Except as otherwise provided in this Section 8.5, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to the full amount of such Third-Third Person Claim; the Claim and to discharge any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty (20) 10 days after receipt thereof shall be deemed an irrevocable election not to defend the same. Notwithstanding anything to the contrary contained in this Section 8.5, in connection with any Third Person Claim in which the Indemnified Party shall reasonably conclude that (x) there is a threat of any relief other than solely monetary damages being granted, (y) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Person Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense of such Third Person Claim. In such an event, the Indemnifying Party need only pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim or the Indemnified Party otherwise exercises its rights contained herein to assume and direct the defense of such Third Person Claim, (a) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof. (b) Notwithstanding anything to the contrary contained in this Section 8.5, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel at the expense of the Indemnifying Party, over the defense or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if unsuccessful, (A) would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party or (B) could reasonably be expected to exceed the amount set forth in Section 8.6(b), in the judgment of the Indemnified Party, or (iv) subject to clause (iii)(B) above, that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such event, the Indemnifying Party will still be subject to its obligations hereunder.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Party ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, securedefend, contest, contest or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; Claim and, subject to Section 6.6, to discharge any cost or expense arising out of such investigation, contest or settlement and provided that any settlement shall include an unconditional release of such claim against the Indemnified Party. (b) The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, as determined by the Indemnifying Party’s legal counsel in accordance with applicable law, in which case such representation shall be at the expense of the Indemnifying Party. . (c) Notwithstanding anything to the contrary contained in this Agreement, neither Seller nor Landec shall settle a Third Person Claim with respect to Taxes for a taxable period (or portion thereof) that ends on or before the Closing Date without the prior written consent of Buyer (not to be unreasonably withheld) if such settlement would result in an increase in the Tax liability of the Company or Buyer for any taxable period (or portion thereof) that ends after the Closing Date. (d) Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty (20) days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (ai) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder (notwithstanding the limitations contained in Section 9.6 hereof) because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to control any such matter including the right to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-Third Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or of its obligation obligation, subject to any and all limitations contained in this Article 9, to indemnify the persons to be indemnified hereunder Indemnified Person or Indemnified Persons with respect to such Third-Third Person Claim; the Claim and to discharge (and does in fact so discharge) any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that the conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party a claim, other than a Tax Claim, is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Person hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Such notice by the Indemnified Party shall describe the Third Person Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Indemnified Losses that has been or may be sustained by the Indemnified Party. Except as otherwise provided in this Section 11.5, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to Party (a “Defense Notice”) within thirty (30) days after receipt from the Indemnified Party, Party of notice of such claim to investigate, secure, contest, or settle investigate the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the . The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless unless, in the reasonable opinion of counsel to the Indemnified Party, separate representation is necessary to avoid a conflict of interest, in which case such representation by one counsel to the Indemnified Party shall be at the expense of the Indemnifying Party. Unless and until In the event that the Indemnifying Party so acknowledges his shall fail to give the Defense Notice within said thirty (30) day period, (i) the Indemnified Party shall be entitled to have the control over said defense and settlement of the subject claim, (ii) the Indemnifying Party will cooperate with and make available to the Indemnified Party such assistance and materials as it may reasonably request, and (iii) the Indemnifying Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, and the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all costs and settlement amounts paid or its obligation incurred in connection therewith. (b) In the event that the Indemnifying Party delivers a Defense Notice with respect to indemnifysuch Third Party Claim within thirty (30) days after receipt thereof and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and (iii) the Indemnified Party shall have the right, rights at its optionexpense to participate in the defense assisted by counsel of its own choosing. In such an event, to assume and control defense of the matter and to look to the Indemnifying Party for will not settle the full amount subject claim without the prior written consent of the costs Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless (i) there is no finding or admission of defense. The failure any violation of Law or any violation of the rights of any Indemnified Person; and (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party to respond Party, in writing to which cases the aforesaid notice consent of the Indemnified Party shall not be required. No Indemnified Party will consent to the entry of any judgment or enter into any settlement or compromise with respect to such Third-Person a Third Party Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend without the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense prior written consent of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) 20 calendar days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Person Claim, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If Except as set forth in Section 9.6 and Section 9.8, if an Indemnified Injured Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Person hereunder ("“Third Person"”), the Indemnified Injured Party shall give a Notice of Claim to the Indemnifying Party reasonably prompt notice thereof promptly after such assertion is actually known to the Indemnified Injured Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice Notice of Claim unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Injured Party, and using counsel reasonably satisfactory to the Indemnified Injured Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"), ”) provided that the Indemnifying Party has unconditionally acknowledged to notified the Indemnified Injured Party in writing his or of its obligation election to indemnify the persons to be indemnified hereunder Injured Party with respect to such Third-Third Person Claim; and provided further that the Indemnified Indemnifying Party will not consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter without the written consent of the Injured Party (not to be withheld or delayed unreasonably) except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by the Internal Revenue Service against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until If the Indemnifying Party so acknowledges his or its obligation elects not to indemnifydefend the Injured Party with respect to such Third Person Claim, the Indemnified Injured Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defensematter. The failure of the Indemnifying Party to respond in writing to the aforesaid notice Notice of the Indemnified Party with respect to such Third-Person Claim within twenty thirty (2030) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (a) the Indemnified Injured Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Indemnified Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim (a “Third Person Claim”) asserted by any claimant (other than an indemnified person hereunder) Indemnified Party hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Partyin accordance with Section 7.1; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually damaged or prejudiced thereby. The Except as otherwise provided in this Section 6.5, in the event that the Third Person Claim seeks recovery of damages in an amount which is less than one hundred fifty percent (150%) of the maximum remaining amount of Indemnified Losses for which the Indemnifying Party may be liable to indemnify the Indemnified Party hereunder (a “Special Third Person Claim”), the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within fifteen (15) days after receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Special Third Person (a "Third-Person Claim"), ; provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; Claim subject to the applicable limitations set forth in this Article 6. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Special Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid in the reasonable opinion of counsel, there exists a conflict of interestinterest between the Indemnified Party and the Indemnifying Party that cannot be waived, in which case such representation shall be at the expense of the Indemnifying Party. In the event that the Indemnifying Party delivers a Defense Notice with respect to such Special Third Party Claim and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request and (iii) the Indemnified Party shall have the rights at its expense to participate in the defense assisted by counsel of its own choosing. Notwithstanding the foregoing, if at any time a Third Person Claim no longer qualifies as a Special Third Person Claim, then the Indemnified Party shall have the right to take control of the defense of such Third Person Claim and investigate, contest, and settle such Third Person Claim, subject to the consent of the Indemnifying Party as set forth in Section 6.5(c) hereof. (b) Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnifysends a Defense Notice, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount amount, subject to this Article 6, of the reasonable costs of defense. The failure In the event that the Indemnifying Party shall fail to give the Defense Notice within said fifteen (15) day period, in light of the circumstances, (i) the Indemnified Party shall be entitled to have the control over said defense and settlement of the subject claim (subject to the consent of the Indemnifying Party to respond as set forth in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20Section 6.5(c) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claimhereof), (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, will cooperate with its own counsel at its own expense. If the Indemnifying Party thereafter seeks and make available to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlementassistance and materials as it may reasonably request, and (iii) the Indemnifying Party shall have the burden right at its expense to prove participate in the defense assisted by clear counsel of its own choosing, and convincing evidence the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all costs, including reasonable out of pocket expenses, and settlement amounts, subject to this Article 6, paid or incurred in connection therewith. (c) The Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (ii) the sole relief provided is monetary damages that conduct are paid in full by the Indemnifying Party; and (iii) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Special Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party shall not be required. (d) Notwithstanding anything to the contrary contained in this Section 6.5, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if, in the defense and/or settlement Indemnified Party’s reasonable judgment, it was unsuccessful, (A) would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party or (B) would reasonably be expected to exceed the Buyer Cap or the Sellers’ Cap, as applicable, in either case as mutually determined by the Indemnifying Party and the Indemnified Party or, if such Third-Person Claim constituted gross negligence a determination is not made within fifteen (15) days after the date on which the Indemnified Party responds to the Defense Notice by asserting its rights under this Section 6.5(d), in accordance with its reasonable judgment, or willful misconduct(iv) subject to clause (iii) above, that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. The Parties shall make available In such event, the Indemnifying Party will still be subject to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in its obligations hereunder but the defense thereofIndemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.

Right to Contest Claims of Third Persons. (a) If an a Tekelec Indemnified Party believes that it is entitled to indemnification hereunder because of a claim (a "Tekelec Third Person Claim") asserted by any claimant (other than an indemnified person hereunder) Indemnified Party (a "Third Person"), the Indemnified Party Tekelec shall give the Indemnifying Party reasonably Representatives prompt notice thereof after such assertion is actually known to Tekelec if, and only if, Escrow Funds remain available to satisfy indemnity claims in accordance with the Indemnified Partyterms thereof; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Tekelec Third Person Claims for which such notice is required shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an the Stockholder(s) from whom such indemnity is sought (the "Stockholder Indemnifying Party Party") is prejudiced thereby. The Indemnifying Party In the event that the Tekelec Third Person Claim seeks recovery of damages in an amount which is less than one hundred fifty percent (150%) of the maximum remaining amount of Escrow Funds which do not represent Claimed Amounts (as defined in the Escrow Agreement) or Disputed Amounts (as defined in the Escrow Agreement) (hereinafter referred to as a "Tekelec Special Third Person Claim"), then the Representatives shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Tekelec Indemnified Party, to investigateassume the defense, secureprosecution, contest, settlement or settle the claim alleged by compromise of such Tekelec Special Third Person (a "Third-Person Claim"), Claim provided that the Representatives, on behalf of the Stockholder Indemnifying Party Party, has unconditionally acknowledged to the Indemnified Party Tekelec in writing his or its the obligation of the Stockholder Indemnifying Party to indemnify the persons to be indemnified hereunder with respect to such Third-Tekelec Special Third Person Claim; the Indemnified Party . Thereafter, Tekelec may thereafter participate in (but not control) the defense of any such Third-Tekelec Special Third Person Claim with its own counsel at its own expense; provided, unless however, that if separate representation of the Tekelec Indemnified Party in connection with any such Tekelec Special Third Person Claim is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Stockholder Indemnifying Party; provided further, that if injunctive relief is being sought by the Third Person against the Tekelec Indemnified Party in connection with such Tekelec Special Third Person Claim, then that portion of the Tekelec Special Third Person Claim for which injunctive relief is being sought shall, at the option of Tekelec, be controlled by Tekelec at the expense of the Stockholder Indemnifying Party. Unless and until To the Indemnifying Party so acknowledges his extent the proposed settlement of any Tekelec Special Third Person Claim involves amounts in excess of the Escrow Funds which do not represent Claimed Amounts (as defined in the Escrow Agreement) or its obligation to indemnify, Disputed Amounts (as defined in the Escrow Agreement) or otherwise does not provide the Tekelec Indemnified Party with a complete release with respect to such matter, such settlement shall have the right, at its option, to assume and control defense of the matter and to look be subject to the Indemnifying Party for the full amount written consent of the costs of defenseTekelec. The failure of the Representatives, on behalf of the Stockholder Indemnifying Party Party, to respond in writing to the aforesaid notice of the Tekelec Indemnified Party with respect to such Third-any Tekelec Special Third Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Representatives, on behalf of the Stockholder Indemnifying Party does Party, do not so acknowledge his or its the obligation of the Stockholder Indemnifying Party to indemnity indemnify and assume the defense of any such Third-Tekelec Special Third Person ClaimClaim in the manner set forth above, and with respect to all Tekelec Third Person Claims which are not Tekelec Special Third Person Claims, (a) Tekelec may assume and control the Indemnified Party may defend against defense of such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claimclaim on such terms as Tekelec may deem appropriate, after after, with respect to Tekelec Special Third Person Claims only, first giving notice of the same proposed terms of any such settlement to the Representatives and providing the Representatives with an opportunity to assume at that time the defense of the same by providing the unconditional acknowledgment and reimbursement described above, and, subject to the procedures set forth in Section 9.4 above, the applicable Stockholder Indemnifying Party, on such terms as Party shall be responsible for paying the Indemnified full amount of the costs of defense for any Tekelec Third Party may deem appropriateClaim or Tekelec Special Third Party Claim, and (b) the Representatives or the Stockholder Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Representatives or Stockholder Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party Tekelec defended such Third-Tekelec Third Person Claim or such Tekelec Special Third Person Claim or the amount or nature of any such settlement, the Representatives and/or the Stockholder Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party Tekelec in the defense and/or settlement of such Third-Tekelec Third Person Claim or such Tekelec Special Third Person Claim constituted gross negligence or willful misconduct. The Parties parties to this Agreement and to the Indemnification Agreement shall reasonably promptly following request therefor make available to each other all relevant information in their possession relating to any such Third-Tekelec Third Person Claim or any Tekelec Special Third Person Claim, subject to reasonable protection of attorney client and attorney work product privileges, and shall cooperate in the defense thereof. (b) Tekelec shall use its reasonable efforts to provide at least one of the Major Stockholders with notice of the assertion of any Tekelec Third Person Claim that Tekelec believes it is entitled to indemnity for pursuant to the Indemnification Agreement after such assertion is actually known to Tekelec; provided, however, that the right of a person to be indemnified in respect of any such Tekelec Third Person Claim shall not be affected in any manner whatsoever by a failure to provide any such notice.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereundera Constellation Indemnified Person or HOF Entity Indemnified Person) ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person or entity to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons and entities to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge (and does in fact so discharge) any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty thirty (2030) days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (ai) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If (a) Except with respect to an Identified Claim, if an Indemnified Party is entitled to indemnification hereunder because of a claim (a “Third Person Claim”) asserted by any claimant (other than an indemnified person hereunder) Indemnified Party hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Partyin accordance with Section 6.1 (a “Third Person Claim Notice”); provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually damaged or prejudiced thereby. The Except as otherwise provided in this Section 5.6 in the event that the Third Person Claim seeks recovery of damages in an amount which is less than one hundred percent (100%) of the maximum remaining amount of Indemnified Losses for which the Indemnifying Party may be liable to indemnify the Indemnified Party hereunder (a “Special Third Person Claim”), the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within fifteen (15) days (the “Defense Notice Period”) after receipt from the Indemnified Party of the Third Person Claim Notice, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Special Third Person (a "Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; Claim subject to the applicable limitations set forth in this Article 5. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Special Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid in the reasonable opinion of counsel, there exists a conflict of interestinterest between the Indemnified Party and the Indemnifying Party that cannot be waived, in which case such representation shall be at the expense of the Indemnifying Party. Unless In the event that the Indemnifying Party delivers a Defense Notice within the Defense Notice Period with respect to such Special Third Person Claim and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will, at the Indemnifying Party’s expense, cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request and (iii) the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. Notwithstanding the foregoing, if at any time a Third Person Claim no longer qualifies as a Special Third Person Claim, then the Indemnified Party shall have the right to take control of the defense of such Third Person Claim and investigate, contest, and settle such Third Person Claim, subject to the consent of the Indemnifying Party as set forth in Section 5.6(c) hereof. (b) Except with respect to an Identified Claim, (i) unless and until the Indemnifying Party so acknowledges his sends a Defense Notice within the Defense Notice Period with respect to a Special Third Person Claim or its obligation (ii) with respect to indemnifyany other Third Party Claim, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount amount, subject to this Article 5, of the reasonable costs of defense. The failure In the event that the Indemnifying Party shall fail to give the Defense Notice within the Defense Notice Period (x) with respect to such Special Third Person Claim or (y) with respect to any other Third Party Claim, (A) the Indemnified Party shall be entitled to have the control over said defense and settlement of the subject claim (subject to the consent of the Indemnifying Party to respond as set forth in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20Section 5.6(c) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claimhereof), (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (bB) the Indemnifying Party may participate in (but not control) the defense of such action, will cooperate with its own counsel at its own expense. If the Indemnifying Party thereafter seeks and make available to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlementassistance and materials as it may reasonably request, and (C) the Indemnifying Party shall have the burden right at its expense to prove participate in the defense assisted by clear counsel of its own choosing, and convincing evidence the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all costs, including reasonable out of pocket expenses, and settlement amounts, subject to this Article 5, paid or incurred in connection therewith. (c) Except with respect to an Identified Claim, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed, unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (ii) the sole relief provided is monetary damages that conduct are paid in full by the Indemnifying Party; (iii) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Special Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party shall not be required, and (iv) in the case of a claim relating to Taxes, such settlement will not increase any unindemnified Tax liability of the Indemnified Party or its Affiliates (other than solely as a result of a reduction in loss carryforwards or tax credits attributable to any Taxable period, or portion thereof, ending on or before the Closing Date). (d) Except with respect to an Identified Claim, notwithstanding anything to the contrary contained in this Section 5.6, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense and/or counsel, over the defense or settlement of such Third-Person Claim constituted gross negligence any claim (i) that seeks a temporary restraining order, a preliminary or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if, in the defense thereofIndemnified Party’s reasonable judgment, it was unsuccessful, (A) would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party or (B) would reasonably be expected to exceed the Buyer Cap or the Bxxxx Shoe Cap, as applicable, in either case as mutually determined by the Indemnifying Party and the Indemnified Party or, if such a determination is not made within fifteen (15) days after the date on which the Indemnified Party responds to the Defense Notice by asserting its rights under this Section 5.6(d), in accordance with its reasonable judgment, or (iv) subject to clause (iii) of this Section 5.6(d), that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such event, the Indemnifying Party will still be subject to its obligations hereunder but the Indemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Person hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually and materially prejudiced thereby. The Except as otherwise provided in this Section 8.5, the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within 30 days after receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look demand and receive from the Indemnifying Party, subject to the Indemnifying Party for Party’s right to dispute its obligation to indemnify the Indemnified Party, the full amount of the reasonable costs of defense. The failure of In the event that the Indemnifying Party shall fail to respond in writing to give the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim Defense Notice within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person Claimsaid 30 day period, (ai) the Indemnified Party may defend against such shall be entitled to have the control over said defense and settlement of the subject claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, will cooperate with its own counsel at its own expense. If the Indemnifying Party thereafter seeks and make available to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlementassistance and materials as it may reasonably request, (iii) the Indemnifying Party shall have the burden right at its expense to prove participate in the defense assisted by clear counsel of its own choosing, and convincing evidence (iv) the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all costs and settlement amounts paid or incurred in connection therewith. (b) In the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Person Claim within 30 days after receipt thereof and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and (iii) the Indemnified Party shall have the rights at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person, (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and (iii) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party shall not be required. (c) Notwithstanding anything to the contrary contained in this Section 8.5, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if unsuccessful, (A) would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party or (B) would reasonably be expected to exceed the then available balance of the Escrow Account, as mutually determined by the Indemnifying Party and the Indemnified Party or, if such a determination is not made within 15 days after the date on which the Indemnified Party responds to the Defense Notice by asserting its rights under this Section 8.5(c), in accordance with its reasonable judgment, (iv) subject to clause (iii)(B) above, that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or (v) in the defense and/or settlement case of the Parent Indemnified Persons, that is subject to a claim for indemnification under Section 8.2(a)(v). In such Third-Person Claim constituted gross negligence event, the Indemnifying Party will still be subject to its obligations hereunder, but the Indemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereofdelayed.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Party ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, securedefend, contest, contest or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such ThirdThird Person Claim and, subject to Section 9.6, to discharge any cost or expense arising out of such investigation, contest or settlement and provided that any settlement shall include an unconditional release of such claim against the Indemnified Party. Notwithstanding the foregoing, no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that includes any non-Person Claim; monetary obligation of the Indemnified Party without the Indemnified Party’s prior written consent. (b) The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, as determined by the Indemnified Party’s legal counsel in accordance with applicable Law, in which case such representation shall be at the expense of the Indemnifying Party. . (c) Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty (20) thirty days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person Claim, (ai) the Indemnified Party may defend against such claimclaim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, including settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) hereunder (a "Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced therebythereof. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation shall fail to indemnity and assume the defense of any such Third-Person Claim, (a) the Indemnified Party Party, in good faith, may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving at least 30 days advance written notice of the same any proposed settlement to the Indemnifying Party and receiving the Indemnifying Party's prior written consent, which may not be unreasonably withheld, on such terms as the Indemnified Party Party, in good faith, may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party believes that it is entitled to indemnification hereunder because of a claim (a "Third Person Claim") asserted by any claimant (other than an indemnified person hereunder) Indemnified Party (a "Third Person"), the such Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the such Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person Claims for which such notice is required shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an the Indemnifying Party is prejudiced thereby. The If a Parent Indemnified Party seeks indemnification under this Section 8.6 and the Third Person Claim seeks recovery of Indemnified Losses in an amount which is less than the remaining amount of Escrow Funds which do not represent Claimed Amounts (as defined in the Escrow Agreement) or Disputed Amounts, or if a Stockholder Indemnified Party seeks indemnification under this Section 8.6, then the Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to assume the Indemnified Partydefense, to investigateprosecution, secure, contest, settlement or settle the claim alleged by compromise of such Third Person (a "Third-Person Claim"), ; provided that the Indemnifying Party, or if a Stockholder Indemnified Party seeks indemnification under this Section 8.6, has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; . Thereafter, the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense; provided, unless however, that if separate representation of the Indemnified Party in connection with any such Third Person Claim is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until ; provided further, that if injunctive relief is being sought by the Indemnifying Party so acknowledges his or its obligation to indemnify, Third Person against the Indemnified Party shall have in connection with such Third Person Claim, then that portion of the rightThird Person Claim for which injunctive relief is being sought shall, at its option, to assume and control defense the option of the matter and Indemnified Party, be controlled by the Indemnified Party at the expense of the Indemnifying Party. To the extent the proposed settlement of any Third Person Claim involves amounts in excess of the Escrow Funds which do not represent Claimed Amounts or Disputed Amounts or otherwise does not provide the Parent Indemnified Party with a complete release with respect to look such matter, such settlement shall be subject to the Indemnifying Party for the full amount written consent of the costs of defenseParent. The failure of the Indemnifying Party Party, to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-any Third Person Claim within twenty (20) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its the obligation of the Indemnifying Party to indemnity indemnify and assume the defense of any such Third-Third Person ClaimClaim in the manner set forth above, and with respect to all Third Person Claims, (a) the Indemnified Party may defend against assume and control the defense of such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, claim on such terms as the Indemnified Party may deem appropriate, after, first giving notice of the proposed terms of any such settlement to the Indemnified Party and providing the Indemnified Party with an opportunity to assume at that time the defense of the same by providing the unconditional acknowledgment and reimbursement described above, and, subject to the procedures set forth in Section 8.5 above, the applicable Indemnifying Party shall be responsible for paying the full amount of the costs of defense for any Third Party Claim, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties parties to this Agreement and to the Indemnification Agreement shall reasonably promptly following request therefor make available to each other all relevant information in their possession relating to any such Third-Third Person Claim Claim, subject to reasonable protection of attorney client and attorney work product privileges, and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) ("Third Person"), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, contest or settle the claim alleged by such Third Person (a "Third-Third Person Claim"), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third-Third Person Claim within twenty (20) 20 calendar days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity indemnify and assume the defense of any such Third-Third Person ClaimClaim within the 20 calendar days, (a) the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Third Person Claim and shall cooperate in the defense thereof.

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Person hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is materially prejudiced thereby. The Except as otherwise provided in this Section 8.5, the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within fifteen (15) Business Days after receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of In the event that the Indemnifying Party shall fail to respond in writing to give the aforesaid notice of the Indemnified Party with respect to such Third-Person Claim Defense Notice within twenty said fifteen (2015) days after receipt thereof shall be deemed an election not to defend the same. If the Indemnifying Party does not so acknowledge his or its obligation to indemnity and assume the defense of any such Third-Person ClaimBusiness Day period, (ai) the Indemnified Party may defend against such shall be entitled to have the control over said defense and settlement of the subject claim, in such manner as it may deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (bii) the Indemnifying Party may participate in (but not control) the defense of such action, will cooperate with its own counsel at its own expense. If the Indemnifying Party thereafter seeks and make available to question the manner in which the Indemnified Party defended such Third-Person Claim or the amount or nature of any such settlementassistance and materials as it may reasonably request, and (iii) the Indemnifying Party shall have the burden right at its expense to prove participate in the defense assisted by clear counsel of its own choosing, and convincing evidence the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all costs and settlement amounts paid or incurred in connection therewith. CONFIDENTIAL TREATMENT REQUESTED REDACTED VERSION (b) In the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Party Claim within fifteen (15) Business Days after receipt thereof and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and (iii) the Indemnified Party shall have the rights at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party shall not be required. (c) Notwithstanding anything to the contrary contained in this Section 8.5, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense and/or or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if unsuccessful, (A) would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party or (B) would reasonably be expected to exceed the Parent Cap or the Shareholders’ Cap, as applicable, in either case as mutually determined by the Indemnifying Party and the Indemnified Party or, if such Third-Person Claim constituted gross negligence a determination is not made within fifteen (15) Business Days after the date on which the Indemnified Party responds to the Defense Notice by asserting its rights under this Section 8.5(c), in accordance with its reasonable judgment, or willful misconduct(iv) subject to clause (iii)(B) above, that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. The Parties shall make available In such event, the Indemnifying Party will still be subject to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in its obligations hereunder but the defense thereof.Indemnified Party will not settle the subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. 95 CONFIDENTIAL TREATMENT REQUESTED REDACTED VERSION

Right to Contest Claims of Third Persons. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified person hereunder) Indemnified Person hereunder ("a “Third Person"”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified PartyParty and in any event no later than five business days thereafter; provided, however, that the right of a person Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually prejudiced thereby. The Except as otherwise provided in this Section 7.5, the Indemnifying Party shall then have the right, upon written notice to the Indemnified PartyParty (a “Defense Notice”) within thirty (30) days after receipt from the Indemnified Party of notice of such claim, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a "Third-“Third Person Claim"”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing his or its obligation to indemnify the persons Persons to be indemnified hereunder with respect to such Third-Third Person Claim; the Claim and to discharge any cost or expense arising out of such investigation, contest or settlement. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third-Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges his or its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of In the event that the Indemnifying Party shall fail to respond in writing give the Defense Notice within said thirty (30) day period, (i) the Indemnified Party shall be entitled to have the control over said defense and settlement of the subject claim, (ii) the Indemnifying Party will cooperate with and make available to the aforesaid notice Indemnified Party such assistance and materials as it may reasonably request, and (iii) the Indemnifying Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, and the Indemnifying Party, if it is required to provide indemnification under this Agreement, will be liable for all costs and settlement amounts paid or incurred in connection therewith. (b) In the event that the Indemnifying Party delivers a Defense Notice with respect to such Third Party Claim within thirty (30) days after receipt thereof and thereby elects to conduct the defense of the subject claim, (i) the Indemnifying Party shall be entitled to have control over said defense and, subject to the provisions set forth below, settlement of the subject claim, (ii) the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and (iii) the Indemnified Party shall have the rights at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which cases the consent of the Indemnified Party with respect shall not be required. (c) Notwithstanding anything to the contrary contained in this Section 7.5, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control, including the right to select defense counsel, over the defense or settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that, if unsuccessful, would reasonably be expected to exceed the Parent Cap or the Stockholders’ Cap, as applicable, in either case as mutually determined by the Indemnifying Party and the Indemnified Party or, if such Third-Person Claim a determination is not made within twenty (20) days after receipt thereof shall be deemed an election the date on which the Indemnified Party responds to the Defense Notice by asserting its rights under this Section 7.5(c), in accordance with its reasonable judgment, or (iv) subject to clause (iii) above, that imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to defend the sameindemnification hereunder. If In such event, the Indemnifying Party does not so acknowledge his or will still be subject to its obligation to indemnity and assume the defense of any such Third-Person Claim, (a) obligations hereunder but the Indemnified Party may defend against such claim, in such manner as it may deem appropriate, including, but will not limited to, settling such claim, after giving notice settle the subject claim without the prior written consent of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriatewhich consent will not be unreasonably withheld, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third-Person Claim conditioned or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third-Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the defense thereofdelayed.