Common use of Right to Participate in Defense Clause in Contracts

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (A) the employment thereof has been specifically authorized by the indemnifying Party in writing, (B) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) (in which case the Indemnified Party will control the defense), (C) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (D) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i11.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (Ai) the employment thereof has been specifically authorized by the indemnifying Party in writing, (Bii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i11.6(d)(i) (in which case the Indemnified Party will control the defense), (Ciii) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (Div) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]%) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i11.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (Ai) the employment thereof has been specifically authorized by the indemnifying Party in writing, (Bii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i11.6(d)(i) (in which case the Indemnified Party will control the defense), (Ciii) the CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (Div) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] one hundred percent ([***]100%) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Any Indemnified Party will shall be entitled to participate in, but not control, in the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will shall be at the Indemnified Party’s own sole cost and expense unless (Ai) the employment thereof has been specifically authorized in writing in advance by the indemnifying Indemnifying Party (in writingwhich case, the defense shall be controlled as provided in Section 13.3(b) (BControl of Defense), with such provisions applying mutatis mutandis; (ii) the indemnifying Indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i13.3(b) (Control of Defense) (in which case the Indemnified Party will shall control the defense, with the reasonable out-of-pocket expense with respect thereto borne by the Indemnifying Party), ; or (Ciii) the interests of the Indemnified Party indemnitee and the indemnifying Indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable LawApplicable Laws, ethical rules or equitable principlesprinciples (in which case, or (D) the Indemnified Party shall control its defense, with the reasonable out-of-pocket expense with respect thereto borne by the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Party).

Right to Participate in Defense. Without limiting Section 9.6(d)(i16.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (Ai) the employment thereof has been specifically authorized by the indemnifying Party in writing, (Bii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i16.6(d)(i) (in which case the Indemnified Party will control the defense), (Ciii) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (Div) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]%) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Except with respect to any Third Party Claim that is a Third Party Infringement Claim, the process for the defense of which shall be governed by Section 9.6(d)(i)7.6, any Indemnified Party will shall be entitled to participate in, but not control, the defense of such a Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will shall be at the Indemnified Party’s own sole cost and expense unless (Aa) the employment thereof has been specifically authorized in writing by the indemnifying Party in writingIndemnifying Party, (Bb) the indemnifying Indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) 10.2.2 (in which case the Indemnified Party will shall control the defense), or (Cc) the interests of the Indemnified Party and any Forest Indemnitee or Xxxxxxx Indemnitee, as applicable, on the indemnifying Party one hand, and the Indemnifying Party, on the other hand, with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties all such Persons under applicable Applicable Law, ethical rules or equitable principles, or principles (D) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Indemnifying Party will assume [***] percent ([***]) of any such costs shall control its defense and expenses of counsel for the Indemnified PartyParty shall control the defense of the Forest Indemnitees or the Xxxxxxx Indemnitees, as applicable).

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (A) the employment thereof has been specifically authorized by the indemnifying Party in writing, (B) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) (in which case the Indemnified Party will control the defense), (C) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (D) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] one hundred percent ([***]100%) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting limitation of Section 9.6(d)(i)9.3(b) above, any Indemnified Party will shall be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will shall be at the Indemnified Party’s own cost and expense unless (Ai) the employment thereof has been specifically authorized by the indemnifying Indemnifying Party in writing, (Bii) the indemnifying Indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i9.3(b) (in which case the Indemnified Party will shall control the defense), or (Ciii) the interests of the Indemnified Party indemnitee and the indemnifying Indemnifying Party with respect to such Third Party Claim CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[***]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. are sufficiently adverse to prohibit the representation by the same counsel of both Parties parties under applicable Law, ethical rules or equitable principles, or (D) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Third-Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (A) the employment thereof has been specifically authorized by the indemnifying Party in writing, (B) the indemnifying Indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) (in which case the Indemnified Party will control the defense), (B) the Indemnifying Party is not diligently defending the interests of both Parties, or (C) the interests of the Indemnified Party and the indemnifying Indemnifying Party with respect to such Third Third-Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (D) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Indemnifying Party will assume [***] percent ([***]%) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i11.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (Ai) the employment thereof has been specifically authorized by the indemnifying Party in writing, (Bii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i11.6(d)(i) (in which case the Indemnified Party will control the defense), ) or (Ciii) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Lawlaw, ethical rules or equitable principles, or (D) the indemnifying Party no longer satisfies the Litigation Conditions, principles in which case the indemnifying Party will assume [***] one hundred percent ([***]100%) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Any Indemnified Party will shall be entitled to participate in, but not control, in the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will shall be at the Indemnified Party’s own sole cost and expense unless (Ai) the employment thereof has been specifically authorized in writing by the indemnifying Party in writingwriting (in which case, the defense shall be controlled as provided in Clause 9.3(b) (Control of Defense), mutatis mutandis), (Bii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(iClause 9.3(b) (Control of Defense) (in which case the Indemnified Party will shall control the defense), with the reasonable out-of-pocket expense with respect thereto borne by the indemnifying Party) or (Ciii) the interests of the Indemnified Party indemnitee and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Applicable Law, ethical rules or equitable principlesprinciples (in which case, or (D) the Indemnified Party shall control its defense, with the reasonable out-of-pocket expense with respect thereto borne by the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Party).

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (A) the employment thereof has been specifically authorized by the indemnifying Party in writing, (B) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) (in which case the Indemnified Party will control the defense), (C) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (D) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Any Indemnified Party will shall be entitled to participate in, but not control, in the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will shall be at the Indemnified Party’s own sole cost and expense unless (Ai) the employment thereof has been specifically authorized in writing by CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) THE TYPE THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. the indemnifying Party in writingwriting (in which case, the defense shall be controlled as provided in Section 8.3.2), (Bii) the indemnifying Party has failed to assume (or diligently continue) the defense and employ counsel in accordance with Section 9.6(d)(i) 8.3.2 (in which case the Indemnified Party will shall control the defense), ) or (Ciii) the interests of the Indemnified Party indemnitee and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Applicable Law, ethical rules or equitable principles, or principles (D) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for case, the Indemnified PartyParty shall control its defense).

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (A) the employment thereof has been specifically authorized by the indemnifying Party in writing, (B) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) (in which case the Indemnified Party will control the defense), (C) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are Certain information indicated with [***] in this document has been omitted from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential. sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (D) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i7.7(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (Ai) the employment thereof has been specifically authorized by the indemnifying Party in writing, (Bii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i7.7(d)(i) (in which case the Indemnified Party will control the defense), ) or (Ciii) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Lawlaw, ethical rules or equitable principles, or (D) the indemnifying Party no longer satisfies the Litigation Conditions, principles in which case the indemnifying Party will assume [***] one hundred percent ([***]100%) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i16.7(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (Ai) the employment thereof has been specifically authorized by the indemnifying Party in writing, (Bii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i16.7(d)(i) (in which case the Indemnified Party will control the defense), (Ciii) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (Div) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting If, with respect to a Third Party Claim, the Indemnifying Party has assumed the defense and employed counsel in accordance with Section 9.6(d)(i8.3.2(a), any the Indemnified Party will shall be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purposepurpose at its sole cost and expense; provided, however, that the Indemnifying Party shall pay the fees and expenses of such employment will be at separate counsel (i) incurred by the Indemnified Party’s own cost and expense unless Party prior to the date the Indemnifying Party assumed control of the defense of such Third Party Claim, (Aii) if the employment thereof has been specifically authorized by the indemnifying Indemnifying Party in writing, or (iii) (A) if the Indemnifying Party is not entitled to assume or maintain control of the defense pursuant to Section 8.3.2(a) or (B) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) (in which case the Indemnified Party will control the defense), (C) if the interests of the Indemnified Party and Humacyte Indemnitee or Supplier Indemnitee, as applicable, on the indemnifying Party one hand, and the Indemnifying Party, on the other hand, with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Lawlaw, ethical rules or equitable principles, or (D) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***](A) of any such costs and expenses of counsel for (B)), the Indemnified PartyParty shall have the right to control the defense.

Right to Participate in Defense. Without limiting Section 9.6(d)(i)11.4.1, any Indemnified Party will shall be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will shall be at the Indemnified Party’s own cost and expense unless (Ai) the employment thereof thereof, and the assumption by the indemnifying Party of such expense, has been CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[...***...]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. specifically authorized by the indemnifying Party in writing, or (Bii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) 11.4.1 (in which case the Indemnified Party will shall control the defense), (C) . In the event the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Applicable Law, ethical rules or equitable principles, or (D) the indemnifying each Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Partyshall retain its own counsel.

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (A) the employment thereof has been specifically authorized by the indemnifying Party in writing, (B) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) (in which case the Indemnified Party will control the defense), (C) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Law, ethical rules or equitable principles, or (D) the indemnifying Party no longer Certain information indicated with [***] in this document has been omitted from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential. satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Party.

Right to Participate in Defense. Without limiting Section 9.6(d)(i)10.4.2, any Indemnified Party will shall be entitled to participate in, but not controlcontrol (except as provided in Section 7.5, Section 7.6 and Section 7.7), the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, provided that such employment will shall be at the Indemnified Party’s own sole cost and expense unless (Aa) the employment thereof thereof, and the assumption by the indemnifying Party of such expense, has been specifically authorized by the indemnifying Party in writing, (Bb) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) 10.4.2 (in which case the Indemnified Party will shall control the defense), ) or (Cc) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Applicable Law, ethical rules or equitable principles. For clarity, if the Indemnified Party has the right to control the defense of a Third Party Claim pursuant to Section 7.5, Section 7.6 or (D) Section 7.7, the Indemnified Party shall be entitled to control such Third Party Claim, without limiting the indemnifying Party no longer satisfies the Litigation ConditionsParty’s responsibility for Losses under Section 10.1 or Section 10.2, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Partyas applicable.

Right to Participate in Defense. Without limiting Except with respect to any Third Party Claim that is a Third Party Infringement Claim, the process for the defense of which shall be governed by Section 9.6(d)(i)5.5, any Indemnified Party will shall be entitled to participate in, but not control, the defense of such a Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will shall be at the Indemnified Party’s own sole cost and expense unless (Aa) the employment thereof has been specifically authorized in writing by the indemnifying Party in writingIndemnifying Party, (Bb) the indemnifying Indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i) 8.2.2 (in which case the Indemnified Party will shall control the defense), or (Cc) the interests of the Indemnified Party and any Medivation Indemnitee or CureTech Indemnitee, as applicable, on the indemnifying Party one hand, and the Indemnifying Party, on the other hand, with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties all such Persons under applicable Applicable Law, ethical rules or equitable principles, or principles (D) the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Indemnifying Party will assume [***] percent ([***]) of any such costs shall control its defense and expenses of counsel for the Indemnified PartyParty shall control the defense of the Medivation Indemnitees or the CureTech Indemnitees, as applicable).

Right to Participate in Defense. Without limiting Section 9.6(d)(i), any Any Indemnified Party will shall be entitled to participate in, but not control, in the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, provided that such employment will shall be at the Indemnified Party’s own sole cost and expense unless (Ai) the employment thereof has been specifically authorized in writing in advance by the indemnifying Indemnifying Party (in writingwhich case, the defense shall be controlled as provided in Section 13.3(b) (BControl of Defense), with such provisions applying mutatis mutandis; (ii) the indemnifying Indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i13.3(b) (Control of Defense) (in which case the Indemnified Party will shall control the defense, with the reasonable out-of-pocket expense with respect thereto borne by the Indemnifying Party), ; or (Ciii) the interests of the Indemnified Party indemnitee and the indemnifying Indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable LawApplicable Laws, ethical rules or equitable principlesprinciples (in which case, or (D) the Indemnified Party shall control its defense, with the reasonable out-of-pocket expense with respect thereto borne by the indemnifying Party no longer satisfies the Litigation Conditions, in which case the indemnifying Party will assume [***] percent ([***]) of any such costs and expenses of counsel for the Indemnified Party).

Right to Participate in Defense. Without limiting Section 9.6(d)(i10.4.1 (Control of the Defense), any Indemnified Party will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own cost and expense unless (Aa) the employment thereof has been specifically authorized by the indemnifying Party in writing, (Bb) the indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 9.6(d)(i10.4.1 (Control of the Defense) (in which case the Indemnified Party will control the defense), or (Cc) the interests of the Indemnified Party and the indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable Applicable Law, ethical rules or equitable principles, or (D) the indemnifying Party no longer satisfies the Litigation Conditions, principles in which case the indemnifying Party will assume [***] percent ([***]) of be responsible for any such costs and expenses of counsel for the Indemnified Party.