Common use of Indemnification Procedures Clause in Contracts

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of If any action commenced shall be brought against or by it any Indemnified Party in respect of which indemnity may be sought hereunderpursuant to this Agreement, but failure to so such Indemnified Party shall promptly notify an the Indemnifying Party shall not release such Indemnifying Party from any liability that it may havein writing, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, and the Indemnifying Party shall have the right to assume the defense thereof with counsel of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described belowits own choosing. In any such action, any Any Indemnified Party shall have the right to retain its own counselemploy separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) except to the extent that the employment thereof has been specifically authorized by the Indemnifying Party in writing, the Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel or in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Indemnifying Party and the position of such Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themParty. The Indemnifying Party shall will not be liable to any Indemnified Party under this Article 5 for any settlement of any proceeding by an Indemnified Party effected without its the Indemnifying Party’s prior written consent (consent, which shall not be unreasonably withheld or delayed by such Indemnifying Party)delayed; or to the extent, but if settled with such consent or if there be final judgment for only to the plaintiffextent that a loss, the Indemnifying Party shall indemnify the Indemnified Party from and against any lossclaim, damage or liability by reason of such settlement or judgmentis attributable to any Indemnified Party’s indemnification pursuant to this Article 5.

Indemnification Procedures. Each person Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof (an “Indemnification Notice”), but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party unless the indemnifying party is materially and adversely affected thereby. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to indemnification participate in and, to the extent it shall wish, to assume and undertake the defense thereof and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 5 (an “Indemnified Party”6(c) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of for any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any legal expenses subsequently incurred by it such indemnified party in connection with such action except as described belowthe defense thereof. In any such actionNotwithstanding the foregoing, any Indemnified Party the indemnified party shall have the right to retain employ its own counsel at its expense unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying party or (ii) the attorneys for the indemnifying party shall have concluded that there are defenses available to the indemnified party that are different from or additional to those available to the indemnifying party and such counsel reasonably concludes that it is therefore unable to represent the interests of both the indemnified and indemnifying party (in which case the indemnifying party may employ separate counsel, but ). In no event shall the indemnifying party be liable for fees and expenses of such more than one counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without separate from its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentown counsel.

Indemnification Procedures. Each person entitled to indemnification The Party claiming indemnity under this Section 5 Article 11 (an the “Indemnified Party”) shall give written notice as to the Party from whom indemnity is being sought (the “Indemnifying Party”) promptly as reasonably practicable to each party required to provide indemnification under this Section 5 after learning of any the claim, suit, proceeding or cause of action commenced against or by it in respect of for which indemnity may be is being sought hereunder, but failure to so notify an (“Claim”). The Indemnified Party shall provide the Indemnifying Party shall not release such Indemnifying Party from any liability that it may havewith reasonable assistance, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of at the Indemnifying Party’s expense, in connection with the defense of the Claim for which indemnity is being sought. Upon The Indemnified Party may participate in and monitor such notificationdefense with counsel of its own choosing at its sole expense; provided, however, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain assume and conduct the defense of the Claim with counsel of its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themchoice. The Indemnifying Party shall not settle any Claim without the prior written consent of the Indemnified Party, not to be liable for unreasonably withheld, unless the settlement involves only the payment of money. So long as the Indemnifying Party is actively defending the Claim in good faith, the Indemnified Party shall not settle any such Claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, (a) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement of with respect to the Claim in any proceeding effected without its written manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintifffrom, the Indemnifying Party shall in connection therewith), and (b) the Indemnifying Party will remain responsible to indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentas provided in this Article 11.

Indemnification Procedures. Each In case any proceeding (including any governmental investigation) shall be instituted involving any person entitled in respect of which indemnity may be sought pursuant to indemnification under this Section 5 9, such person (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced notify the person against or by it in respect of which whom such indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced (the position of the “Indemnifying Party. Upon such notification, ”) in writing and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such action if it is a claim brought by a third partyIndemnified Party, and, if and after such assumption, shall assume the payment of all fees and expenses; provided that the failure of any Indemnified Party so to notify the Indemnifying Party shall not be entitled relieve the Indemnifying Party of its obligations hereunder except to reimbursement of any expenses incurred the extent (and only to the extent that) that the Indemnifying Party is materially prejudiced by it in connection with such action except as described belowfailure to notify. In any such actionproceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, retention of such counsel or (Bii) in the named parties in any reasonable judgment of such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. It is understood that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties (including in the case of Holder, all of its officers, directors and controlling persons) and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Indemnified Parties, the Indemnified Parties shall designate such firm in writing to the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which consent shall not be unreasonably withheld or delayed by such Indemnifying Partydelayed), but if settled with such consent consent, or if there be a final judgment for the plaintiff, the Indemnifying Party shall indemnify the and hold harmless such Indemnified Party Parties from and against any loss, damage loss or liability (to the extent stated above) by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability arising out of such proceeding.

Indemnification Procedures. Each person entitled to Promptly after receipt by the Insurance Company or State Street of notice of a matter that may be covered under the indemnification under this provisions of Section 5 5.1 or 5.3, as applicable (an each, a “Indemnified PartyClaim”), the party making a claim for indemnification (the “Claimant”) shall give notice as promptly as reasonably practicable to each notify the other party required to provide from which the Claimant is seeking indemnification under this Section 5 (the “Indemnitor”); provided, however, that a delay by Claimant in notifying Indemnitor of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party a Claim shall not release permit Indemnitor to avoid its indemnification obligations hereunder except to the extent Indemnitor is actually prejudiced by such Indemnifying Party from any liability that delay. The Claimant shall provide the Indemnitor with complete details and pleadings requested by the Indemnitor concerning the Claim and shall cooperate fully and in good faith with the Indemnitor in investigating and defending the Claim. The Indemnitor will be entitled to timely participate at its own expense in the defense, or, if it may haveso elects, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall to assume the defense of any suit brought to enforce any liability subject to the indemnification provided above. In the event the Indemnitor elects to assume the defense of any such action if it is a claim brought by a third party, and, if suit and after such assumptionretain counsel, the Indemnifying Party Claimant and/or any of its affiliated persons named as defendant or defendants in the suit may retain additional counsel but Claimant shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but bear the fees and expenses of such counsel unless the Indemnitor shall be at have specifically authorized the expense retaining of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party counsel. The Claimant shall have mutually agreed to the contrary, in no event confess any claim or (B) the named parties settle or make any compromise in any such action (including any impleaded parties) include both case in which the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would Indemnitor may be inappropriate due required to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentClaimant except with the Indemnitor’s prior written consent.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 6 (for the purpose of this Section 6(f) only, an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 6 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person Person entitled to indemnification under this Section 5 (an “"Indemnified Party”") shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 (an "Indemnifying Party") of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release relieve such Indemnifying Party from any liability that it may have, have otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, assumption the Indemnifying Indemnified Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to indemnification The Party claiming indemnity under this Section 5 Article 9 (an the “Indemnified Party”) shall give written notice as to the Party from whom indemnity is being sought (the “Indemnifying Party”) promptly as reasonably practicable to each party required to after learning of such Claim. The Indemnified Party shall provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an the Indemnifying Party shall not release such Indemnifying Party from any liability that it may havewith reasonable assistance, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of at the Indemnifying Party’s expense, in connection with the defense of the Claim for which indemnity is being sought. Upon The Indemnified Party may participate in and monitor such notificationdefense with counsel of its own choosing at its sole expense; provided, however, the Indemnifying Party shall have the right to assume and conduct the defense of such action if it is a claim brought by a third party, and, if and after such assumptionthe Claim with counsel of its choice. Unless the settlement involves only the payment of money, the Indemnifying Party shall not settle any Claim without the prior written consent of the Indemnified Party, such consent not to be entitled to reimbursement unreasonably withheld, conditioned or delayed. So long as the Indemnifying Party is conducting the defense of any expenses incurred by it the Claim in connection with such action except as described below. In any such actiongood faith, any the Indemnified Party shall have not settle or compromise any such Claim without the right to retain its own counselprior written consent of the Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, but (a) the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless may defend against, consent to the entry of any judgment, or enter into any settlement with respect to such Claim in any manner the Indemnified Party may deem reasonably appropriate (Aand the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), and (b) the Indemnifying Party and the Indemnified Party shall have mutually agreed remain responsible to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentas provided in this Article 9.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “Indemnified Party”) shall give Party shall, upon receipt of written notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any claim or the service of any summons or other initial legal process upon it in any action commenced instituted against or by it it, in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this the indemnity agreement so long as contained in Section 2.2 hereof, promptly give written notice of such claim, but in any event within 10 business days after receipt of such notice by the Indemnified Party, or the commencement of such action to the Trust; provided, however, that the failure to promptly provide such notice within such time period shall not have materially affect the rights of such Indemnified Party to indemnification hereunder except to the extent the Trust is prejudiced the position of the Indemnifying Partythereby. Upon such notification, the Indemnifying Party The Trust shall assume the defense of such action claim or action, and (i) such defense shall be conducted by counsel chosen by the Trust, which counsel shall be reasonably satisfactory to the Indemnified Party against whom the claim is asserted or who is the defendant in such action, and (ii) such Indemnified Party may retain additional counsel; provided, however, that such Indemnified Party shall bear all of the fees and expenses of any counsel retained by it, except that if it is a claim brought by a third party, and, if an actual conflict of interest exists between the Trust and after such assumptionan Indemnified Party, the Indemnifying Party Trust will pay the reasonable fees and expenses of any counsel reasonably satisfactory to the Trust retained by such Indemnified Party. The Trust shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In settle or compromise any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be claim or action unless at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason time of such settlement or judgmentand compromise such liability is fully satisfied by the Trust.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of If any action commenced will be brought against or by it any party in respect of which indemnity may be sought hereunderpursuant to this Agreement (the "Indemnified Party"), but failure to so such Indemnified Party will promptly notify an Indemnifying Party shall not release such Indemnifying Party the party from any liability that it may have, otherwise than on account of this whom indemnity agreement so long as such failure shall not have materially prejudiced is being sought (the position of the "Indemnifying Party. Upon such notification") in writing, and the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall will have the right to retain assume the defence thereof with counsel of its own counselchoosing. Any Indemnified Party will have the right to employ separate counsel in any such action and participate in the defence thereof, but the fees and expenses of such counsel shall will be at the expense of such Indemnified Party unless (A) except to the extent that the employment thereof has been specifically authorized by the Indemnifying Party in writing, the Indemnifying Party has failed after a reasonable period of time to assume such defence and to employ counsel or in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Indemnifying Party and the position of such Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themParty. The Indemnifying Party shall will not be liable to any Indemnified Party under this Section 12 for any settlement of any proceeding by an Indemnified Party effected without its the Indemnifying Party's prior written consent, which consent (which shall will not be unreasonably withheld withheld, conditioned or delayed by such Indemnifying Party)delayed; or to the extent, but if settled with such consent or if there be final judgment for only to the plaintiffextent that a loss, the Indemnifying Party shall indemnify the Indemnified Party from and against any lossclaim, damage or liability by reason of such settlement or judgmentis attributable to any Indemnified Party's indemnification pursuant to this Section 12.

Indemnification Procedures. Each person entitled to If a third party asserts any claim or allegation which, if proven, would trigger the indemnification under this Section 5 (an “Indemnified Party”) obligations set forth in paragraphs 12.1 and 12.2, the indemnifying party shall give notice as be notified promptly as reasonably practicable to each of such claim by the indemnified party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position and given control of the Indemnifying Partydefense and/or settlement thereof. Upon such notification, After notice from the Indemnifying Party shall indemnifying party to the indemnified party of its election to assume the defense of such action if it is a claim brought by a third party, and, if and after such assumptionor action, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party indemnifying party shall not be liable to the indemnified party under this paragraph 12 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding effected without its written in respect of which any indemnified party is a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all such liability on claims that are the subject matter of such proceeding. Moreover Developer shall not, in the absence of the consent of Publisher (which shall not be unreasonably withheld or delayed by such Indemnifying Partydelayed), but if settled effect any settlement of any pending, threatened or actual proceeding or claim which has the effect of compromising in any way the rights, interests and licenses in the Product or the license granted to Publisher hereunder. The foregoing provisions of this paragraph 12 state the entirety of the parties’ obligations with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against respect to any loss, damage or liability claim by reason of such settlement or judgmentany third party.

Indemnification Procedures. Each person entitled to Any BVL Indemnitees or Customer Indemnitees (collectively, “Indemnitees”) seeking indemnification under this Section 5 8.1 or 8.2, agrees to notify the indemnifying Party within ten (an “Indemnified Party”10) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 business days of receipt of any action commenced against Claims, demands or by it in respect threats of suit for which indemnity such Party may be sought hereunderliable under Section 8.1 or 8.2 as the case may be; provided, but however, that failure to so notify an Indemnifying Party give such notification shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced affect the position of indemnification to be provided hereunder except to the Indemnifying Party. Upon such notification, extent the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified indemnifying Party shall have the right to retain its own counsel, but the fees and expenses been actually prejudiced as a result of such counsel shall be at failure (except that the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee(s) failed to give such notice). The indemnifying Party shall have the right, but not the obligation, to defend, to employ counsel of its choosing, to control, to negotiate, and to settle such claims; provided, however, that the Indemnitee(s) shall be entitled to participate in the defense of such matter and to employ counsel at its expense to assist therein. The Indemnitee(s) shall provide the indemnifying Party with such information and assistance as the indemnifying Party may reasonably request, at the expense of the indemnifying Party. The Parties understand that no insurance deductible shall be credited against losses for which a Party is responsible under this Article 8. No indemnifying Party under Section 8.1 or 8.2 may compromise or settle any Claim or pay any settlement amount in the connection with the compromise or settlement of any proceeding effected Claim without its the prior written consent (which shall of Indemnitee, such written consent not to be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentdelayed.

Indemnification Procedures. Each person entitled to Promptly after receipt by the Fund or State Street of notice of a matter that may be covered under the indemnification under this provisions of Section 5 5.1 or 5.3, as applicable (an each, a “Indemnified PartyClaim”), the party making a claim for indemnification (the “Claimant”) shall give notice as promptly as reasonably practicable to each notify the other party required to provide from which the Claimant is seeking indemnification under this Section 5 (the “Indemnitor”); provided, however, that a delay by Claimant in notifying Indemnitor of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party a Claim shall not release permit Indemnitor to avoid its indemnification obligations hereunder except to the extent Indemnitor is actually prejudiced by such Indemnifying Party from any liability that delay. The Claimant shall provide the Indemnitor with complete details and pleadings requested by the Indemnitor concerning the Claim and shall cooperate fully and in good faith with the Indemnitor in investigating and defending the Claim. The Indemnitor will be entitled to timely participate at its own expense in the defense, or, if it may haveso elects, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall to assume the defense of any suit brought to enforce any liability subject to the indemnification provided above. In the event the Indemnitor elects to assume the defense of any such action if it is a claim brought by a third party, and, if suit and after such assumptionretain counsel, the Indemnifying Party Claimant and/or any of its affiliated persons named as defendant or defendants in the suit may retain additional counsel but Claimant shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but bear the fees and expenses of such counsel unless the Indemnitor shall be at have specifically authorized the expense retaining of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party counsel. The Claimant shall have mutually agreed to the contrary, in no event confess any claim or (B) the named parties settle or make any compromise in any such action (including any impleaded parties) include both case in which the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would Indemnitor may be inappropriate due required to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentClaimant except with the Indemnitor’s prior written consent.

Indemnification Procedures. Each person In any case under this Agreement where one party has indemnified the other against any claim or legal action, indemnification will be conditioned on compliance with the procedure outlined below. Provided that prompt notice is given of any claim or suit for which indemnification might be claimed, the indemnifying party promptly will defend, contest or otherwise protect against any such claim or suit (including by way of settlement and release) at its own cost and expense. The indemnified party may, but will not be obligated to, participate at its own expense in a defense thereof by counsel of its own choosing, but the indemnifying party will be entitled to indemnification under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable control the defense unless the indemnified party has relieved the indemnifying party from liability with respect to each the particular matter. If the indemnifying party required fails timely to provide indemnification under this Section 5 of defend, contest or otherwise protect against any action commenced against such claim or by it in respect of which indemnity may be sought hereundersuit, the indemnified party may, but failure to so notify an Indemnifying Party shall will not release be obligated to, defend, contest or otherwise protect against the same, and make any compromise or settlement thereof and recover the entire costs thereof from the indemnifying party, including reasonable attorneys fees, disbursements and all amounts paid as a result of such Indemnifying Party from any liability claim or suit or the compromise or settlement thereof; provided, however, that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced if the position of indemnifying party undertakes the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the timely defense of such action if it is a claim brought by a third party, and, if and after such assumptionmatter, the Indemnifying Party shall indemnified party will not be entitled to reimbursement of any expenses recover from the indemnifying party its costs incurred by it in the defense thereof. The indemnified party will cooperate and provide such assistance as the indemnifying party may reasonably request in connection with such action except as described below. In any such action, any Indemnified Party shall have the right defense of the matter subject to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentindemnification.

Indemnification Procedures. Each person entitled to If a third party asserts any claim or allegation which, if proven, would trigger the indemnification under this Section 5 (an “Indemnified Party”) obligations set forth in paragraphs 9.1 and 9.2, the indemnifying party shall give notice as be notified promptly as reasonably practicable to each of such claim by the indemnified party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position and given control of the Indemnifying Partydefense and/or settlement thereof. Upon such notification, After notice from the Indemnifying Party shall indemnifying party to the indemnified party of its election to assume the defense of such action if it is a claim brought by a third party, and, if and after such assumptionor action, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party indemnifying party shall not be liable to the indemnified party under this paragraph 9 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding effected without its written in respect of which any indemnified party is a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all such liability on claims that are the subject matter of such proceeding. Moreover Developer shall not, in the absence of the consent of Publisher (which shall not be unreasonably withheld or delayed by such Indemnifying Partydelayed), but if settled effect any settlement of any pending, threatened or actual proceeding or claim which has the effect of compromising in any way the rights, interests and licenses in the Product or the license granted to Publisher hereunder. The foregoing provisions of this paragraph 9 state the entirety of the parties’ obligations with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against respect to any loss, damage or liability claim by reason of such settlement or judgmentany third party.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 6 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 6 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to To receive the benefit of indemnification under this Section 5 (15.1 or Section 15.2, an “Indemnified Party”) shall give notice as promptly as reasonably practicable Indemnitee which intends to each party required to provide claim indemnification under this Section 5 15.1 or Section 15.2 hereof must (a) promptly notify the Indemnitor in writing of any claim, lawsuit or other action commenced against or by it in respect of which indemnity may be sought hereunderthe Indemnitee intend to claim such indemnification; provided, but that failure to so notify an give such notice shall not relieve Indemnifying Party shall not release such Indemnifying Party from any liability that it may haveof its indemnification obligations except where, otherwise than on account of this indemnity agreement so long as and solely to the extent that, such failure actually and materially prejudices the lights of Indemnifying Party; (b) tender to the Indemnitor, and cause its Affiliates and their respective directors, officers, employees and agents to tender to, the Indemnitor, full authority to defend or settle the claim or suit; at its discretion, to provided that no settlement requiring any admission by the Indemnitee or that imposes any obligation on the Indemnitee shall not be made without the Indemnitee’s consent; and (c) provide reasonable cooperation to the Indemnitor and its legal representatives and insurer, and cause its Affiliates and their respective directors, officers, employees and agents to reasonably cooperate with the Indemnitor and its legal representatives and insurer in the investigation and defense of any claim, lawsuit or other action covered by this indemnification, as reasonably requested, at Indemnitor’s cost and expense. Neither Party, as an Indemnitor, shall have materially prejudiced any obligation to indemnify the position Indemnitee in connection with any settlement made without the prior written consent of the Indemnifying Party. Upon such notification, Indemnitor and the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party Indemnitor shall not be entitled to reimbursement of responsible for any expenses legal fees or other costs incurred by it in connection with such action except other than as described belowprovided herein. In any such action, any Indemnified Party The Indemnitee shall have the right right, but not the obligation, to retain be represented by counsel of its own counsel, but the fees selection and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentsole expense.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (Promptly after receipt by an “Indemnified Party”) shall give indemnified party of a notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against third-party claim or by it the commencement of any action, such indemnified party shall: (a) notify the indemnifying party in respect writing of which indemnity may be sought hereunderany such claim; (b) provide the indemnifying party with reasonable assistance to settle or defend such claim, but at the indemnifying party’s own expense; and (c) grant to the indemnifying party the right to control the defense and/or settlement of such claim, at the indemnifying party’s own expense; provided, however, that: (i) the failure to so notify an Indemnifying Party notify, provide assistance and grant authority and control shall only relieve the indemnifying party of its obligation to the indemnified party to the extent that the indemnifying party is prejudiced thereby; (ii) the indemnifying party shall not, without the indemnified party’s consent (such consent not release such Indemnifying Party from to be unreasonably withheld or delayed), agree to any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless settlement which: (A) makes any admission on behalf of the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, indemnified party; or (B) consents to any injunction against the named parties indemnified party (except an injunction relating solely to the indemnified party’s continued use of any infringing Deliverable or USCC Materials); and (iii) the indemnified party shall have the right, at its expense, to participate in any such action (including any impleaded parties) include both the Indemnifying Party legal proceeding to contest and the Indemnified Party defend a claim and representation to be represented by legal counsel of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party)choosing, but if settled with such consent or if there be final judgment for shall have no right to settle a claim without the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentindemnifying party’s written consent.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “The Indemnified Party”) Party shall give written notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an the Indemnifying Party promptly after learning of such Claim. The Indemnified Party shall not release such provide the Indemnifying Party from any liability that it may havewith reasonable assistance, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of at the Indemnifying Party. Upon such notification’s expense, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with the defence of the Claim for which indemnity is being sought. The Indemnified Party may participate in and monitor such action except as described below. In any such actiondefence with counsel of its own choosing at its sole expense; provided, any Indemnified that the Indemnifying Party shall have the right to retain assume and conduct the defence of the Claim with counsel of its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themchoice. The Indemnifying Party shall not settle any Claim without the prior written consent of the Indemnified Party, not to be liable for unreasonably withheld. So long as the Indemnifying Party is actively defending the Claim in good faith, the Indemnified Party shall not settle or compromise any such Claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume and conduct the defence of the Claim as provided above, (a) the Indemnified Party may defend against, consent to the entry of any judgment, or enter into any settlement of with respect to such Claim in any proceeding effected without its written manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintifffrom, the Indemnifying Party in connection therewith), and (b) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentas provided in this Article 9.

Indemnification Procedures. Each person entitled A party (the "Indemnitee") that intends to claim indemnification under this Section 5 Article 8 shall: (an “Indemnified Party”a) shall give notice as promptly as reasonably practicable to each notify the other party required to provide indemnification under this Section 5 (the "Indemnitor") of any action commenced against or by it in Liability with respect to which the Indemnitee intends to claim indemnification as soon as practicable after the Indemnitee becomes aware of which indemnity may be sought hereunder, but failure any such Liability; (b) permit the Indemnitor to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third partythereof with counsel mutually satisfactory to the parties; and (c) cooperate with the Indemnitor, andat the Indemnitor's expense, if and after such assumptionin the defense thereof. With respect to any matter for which the Indemnitor has an obligation to indemnify the Indemnitee under this Agreement, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party Indemnitee shall have the right to retain its own counsel, but the fees participate and expenses of such counsel shall be represented (at the expense Indemnitor's expense) by legal counsel of such Indemnified Party unless (A) the Indemnifying Party Indemnitee's choice in all proceedings and the Indemnified Party shall have mutually agreed to the contrarynegotiations, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and if representation of both parties by the same counsel retained by Indemnitor would be inappropriate due to actual or potential differing or conflicting interests between themthe Indemnitee and any other party represented by such counsel in such proceedings. The Indemnifying Party indemnity agreement in this Article 8 shall not be liable for any apply to amounts paid in settlement of any proceeding Liability if such settlement is effected without its written the consent (of the Indemnitor, which consent shall not be unreasonably withheld or delayed by withheld. Failure of the Indemnitee to deliver notice to the Indemnitor within a reasonable time after becoming aware of a Liability shall relieve the Indemnitor of any liability to the Indemnitee pursuant to this Article 8 in the event such Indemnifying Party), but if settled with delay is prejudicial to the Indemnitor's ability to defend such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentaction.

Indemnification Procedures. Each person entitled to All indemnification under obligations in this Section 5 Agreement are conditioned upon the Party seeking indemnification (an “Indemnified Party”A) shall give promptly notifying the indemnifying Party of any claim or liability of which the Party seeking indemnification becomes aware (including a copy of any related complaint, summons, notice as promptly as reasonably practicable to each party required or other instrument); provided, that failure to provide indemnification under this Section 5 such notice within a reasonable period of time shall not relieve the indemnifying Party of any action commenced against or of its obligations hereunder except to the extent the indemnifying Party is prejudiced by it in respect of which indemnity may be sought hereundersuch failure, but failure (B) allowing the indemnifying Party, if the indemnifying Party so requests, to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume conduct and control the defense of any such action if it is a claim brought by a third partyor liability and any related settlement negotiations (at the indemnifying Party’s expense), and, if (C) cooperating with the indemnifying Party in the defense of any such claim or liability and after such assumptionany related settlement negotiations (at the indemnifying Party’s expense) and (D) not compromising or settling any claim or liability without prior written consent of the indemnifying Party. Without limiting the generality of the foregoing, the Indemnifying indemnifying Party shall is authorized to direct all aspects of the defense for which it has an obligation of indemnification and defense hereunder, including without limitation, selection of counsel, discovery, motions and settlement; provided, however, the indemnifying Party may not be entitled to reimbursement settle or dispose of any expenses incurred by it such matter (i) without obtaining a full release in connection favor of the indemnified Party with respect to such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees matter and expenses of such counsel shall be at the expense of such Indemnified Party unless (Aii) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentdisposition would confess wrongdoing or otherwise adversely impact the rights or interests of the indemnified Party, in each case, without the prior written consent of the indemnified Party.

Indemnification Procedures. Each person Person entitled to indemnification under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 (an “Indemnifying Party”) of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release relieve such Indemnifying Party from any liability that it may have, have otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, assumption the Indemnifying Indemnified Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person Promptly after a Party entitled to indemnification under this Section 5 9.5 or 9.6 (an “Indemnified Indemnitee”) receives notice of any pending or threatened claim against it (an “Action”), such Indemnitee shall give written notice to the Party to whom the Indemnitee is entitled to look for indemnification pursuant to Section 9.5 or 9.6, as applicable (the “Indemnifying Party”) shall give notice as promptly as reasonably practicable ), of the commencement thereof; provided, that, the failure so to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an the Indemnifying Party shall not release such Indemnifying Party from relieve it of any liability that it may havehave to any Indemnitee hereunder, otherwise than on account of except to the extent the Indemnifying Party demonstrates that it is prejudiced thereby. In case any Action that is subject to indemnification under this indemnity agreement so long as such failure Article 9, shall not have materially prejudiced be brought against an Indemnitee and it shall give written notice to the position Indemnifying Party of the Indemnifying Party. Upon such notificationcommencement thereof, the Indemnifying Party shall be entitled to participate therein and, if it so desires, to assume the defense of thereof with counsel reasonably satisfactory to such action if it is a claim brought by a third party, Indemnitee and, if and after such assumptionnotice from the Indemnifying Party to the Indemnitee of its election to assume the defense thereof, the Indemnifying Party shall not be entitled liable to reimbursement such Indemnitee under this Article 9 for any fees of other counsel or any expenses other expenses, in each case subsequently incurred by it such Indemnitee in connection with such action except as described below. In any such actionthe defense thereof, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.other

Indemnification Procedures. Each person Person entitled to indemnification under this Section 5 (an “"Indemnified Party”") shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 (an "Indemnifying Party") of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release relieve such Indemnifying Party from any liability that it may have, have otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, assumption the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to indemnification An indemnifying party shall not be liable under this Section 5 (indemnity agreement with respect to any claim made against an “Indemnified Party”) indemnified party unless such indemnifying party shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 be notified in writing of any action commenced against or by it in respect the specific nature of which indemnity may be sought hereunderthe claim within a reasonable time after the assertion thereof, but failure so to so notify an Indemnifying Party such indemnifying party shall not release such Indemnifying Party relieve it from any liability that which it may have, have otherwise than on account of this indemnity agreement provision. An indemnifying party shall be entitled to participate at its own expense in the defense or, if it so long as elects within a reasonable time after receipt of such failure notice, to assume the defense, which defense shall not have materially prejudiced be conducted by counsel chosen by it and reasonably satisfactory to the position of indemnified party defendant. In the Indemnifying Party. Upon such notification, event that the Indemnifying Party shall indemnifying party elects to assume the defense of any such action if it is a claim brought by a third party, and, if suit and after retain such assumptioncounsel, the Indemnifying Party indemnified party defendant or defendants in the suit shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but bear the fees and expenses of any additional counsel thereafter retained by such counsel shall be at indemnified party. However, in the expense of such Indemnified Party unless (A) event that the Indemnifying Party and the Indemnified Party shall have mutually agreed parties to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party Company or controlling person thereof and the Indemnified Party Placement Agent or controlling person thereof, and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party , then the Placement Agent or controlling person shall not be liable for any settlement of any proceeding effected without its written consent (which have the right to retain separate counsel and the Company shall not be unreasonably withheld reimburse the Placement Agent or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment controlling person for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from reasonable fees and against any loss, damage or liability by reason expenses of such settlement counsel, it being understood that the Company shall not, in connection with any one action or judgmentseparate but similar or related actions in the same jurisdiction arising out of more than one firm of attorneys, in the aggregate, be compelled to seek separate legal representation from the Placement Agent and any controlling persons thereof.

Indemnification Procedures. Each person entitled If a Party (the “Indemnitee”) intends to claim indemnification under this Section 5 Sections 11.1 or 11.2, as applicable, it shall promptly notify the other Party (an the “Indemnified PartyIndemnitor”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 in writing of any action commenced against or by it in respect of Claim for which indemnity may be sought hereunderthe Indemnitee intends to claim such indemnification, but failure and the Indemnitor shall have the right to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense thereof with counsel of its choice (provided that such action if it counsel is a claim brought by a third partyreasonably acceptable to the Indemnitee); provided, andhowever, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party that an Indemnitee shall have the right to retain its own counsel, but with the fees and expenses to be paid by the Indemnitor, if representation of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties Indemnitee by the same counsel retained by the Indemnitor would be inappropriate due to actual or reasonably-determined - potential differing or conflicting interests between themthe Indemnitee and any other Party represented by such counsel in such proceeding. The Indemnifying Party obligations of this Section 11.3 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the consent of the Indemnitor, which consent shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by unreasonably. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such Indemnifying Party)action, but if settled with prejudicial to its ability to defend such consent or if there be final judgment for action, shall relieve the plaintiffIndemnitor of any obligation to the Indemnitee under this Section 11.3. The Indemnitee, the Indemnifying Party shall indemnify the Indemnified Party from its employees and against any lossagents, damage or liability by reason of such settlement or judgment.shall

Indemnification Procedures. Each person entitled A party (the "Indemnitee") that -------------------------- intends to claim indemnification under this Section 5 Article 14 shall promptly notify the other party (an “Indemnified Party”the "Indemnitor") shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 in writing of any action commenced against or by it claim in respect of which the Indemnitee or any of its directors, officers, employees, agents, successors, or assigns intends to claim such indemnification, and the Indemnitor shall have sole control of the defense and/or settlement thereof, provided that the indemnified party may participate in any such proceeding with counsel of its choice at its own expense. The indemnity may agreement in this Article 14 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the consent of the Indemnitor, which consent shall not be sought hereunderwithheld unreasonably. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such Indemnitor of any liability to the Indemnitee under this Article 14, but failure the omission to so notify an Indemnifying Party deliver written notice to the Indemnitor shall not release such Indemnifying Party from relieve the Indemnitor of any liability that it may haveotherwise have to any Indemnitee than under this Article 14. The Indemnitee under this Article 14, otherwise than on account of this indemnity agreement so long as such failure its employees and agents, shall not have materially prejudiced cooperate fully with the position of Indemnitor and its legal representatives and provide full information in the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement investigation of any expenses incurred Claim covered by it in connection with such action except as described belowthis indemnification. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed Notwithstanding anything to the contrarycontrary contained in this Article 14, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party neither party shall not be liable for any settlement of any proceeding effected costs or expenses incurred without its prior written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentauthorization.

Indemnification Procedures. Each person entitled Upon the occurrence of any event giving rise to a claim for indemnification under this Section 5 (an “Indemnification Claim”) under any provision of this Agreement or any Closing Document, the Party seeking indemnification (the “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to notify the other Party (the “Indemnitor”) of such Indemnification Claim and provide indemnification under this Section 5 the Indemnitor with copies of any action commenced against documents describing or otherwise bearing on the subject matter of such indemnification obligation; provided, however, that the failure to notify Indemnitor shall not relieve Indemnitor from any liability which Indemnitor may have under the Indemnification Claim except to the extent that it has been materially prejudiced by it such failure. Indemnitor shall be entitled to participate in any pending or threatened claim, action, suit or proceeding in respect of which indemnity may be sought hereunderthe Indemnification Claim and, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability the extent that it may havewishes, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, thereof with counsel reasonably satisfactory to the Indemnifying Party shall Indemnified Party. The Indemnitor will not be entitled settle or compromise or consent to reimbursement the entry of any expenses incurred by it judgment in connection with such action except as described below. In any such pending or threatened claim, action, any Indemnified Party suit or proceeding in respect of the Indemnification Claim unless, (i) Indemnitor shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and given the Indemnified Party reasonable prior written notice thereof and shall have mutually agreed obtained an unconditional release of the Indemnified Party from all liability arising out of such claim, action, suit or proceeding, or (ii) Indemnitor reaffirms in writing its indemnity obligations hereunder regardless of Applicable Laws to the contrary. As long as Indemnitor has complied with its obligations to defend and indemnify, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party Indemnitor shall not be liable for any settlement made by the Indemnified Party without the consent of any proceeding effected without its written consent Indemnitor (which consent shall not be unreasonably withheld or delayed by such Indemnifying Partydelayed), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to indemnification In the event that a Party claiming indemnity under this Section 5 5.A (an the “Indemnified Party”) shall give notice as becomes aware of any Claim for which it seeks indemnification from the other Party (the “Indemnifying Party”), the Indemnified Party shall: (a) reasonably promptly as reasonably practicable to each party required notify Indemnifying Party thereof, in no event later than ten (10) business days after the Indemnified Party becomes aware of such Claim (provided that failure to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall such notice will not release such the Indemnifying Party from any liability of its indemnity obligations hereunder except to the extent that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of increases the Indemnifying Party's indemnity obligation); (b) permit the Indemnifying Party to assume control of the defense or settlement of the Claim; (c) at the Indemnifying Party’s expense, provide the Indemnifying Party with reasonable cooperation in the defense or settlement thereof; and (d) not settle any such claim without the Indemnifying Party’s written consent, not to be unreasonably withheld. Upon The Indemnified Party may participate in and monitor such notificationdefense with counsel of its own choosing at its sole expense. If the Indemnifying Party does not assume and conduct the defense of the claim as provided above, (x) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to the claim in any manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third partyin connection therewith), and, if and after such assumption, (y) the Indemnifying Party shall not be entitled remain responsible to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.as provided in this Section 5.A.

Indemnification Procedures. Each person Party entitled to indemnification under this Section 5 1.7 (an the “Indemnified Party”) shall will give notice as promptly as reasonably practicable to each party the Party required to provide indemnification under this Section 5 (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any action commenced against or by it in respect of claim as to which indemnity may be sought hereundersought, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, and will permit the Indemnifying Party shall to assume the defense of such action if it is a claim brought or any litigation resulting from such claim, provided that counsel for the Indemnifying Party, who will conduct the defense of such claim or any litigation resulting from such claim, will be approved by a third partythe Indemnified Party (whose approval will not be unreasonably withheld), andand the Indemnified Party may participate in such defense at such Indemnified Party’s expense. Notwithstanding the foregoing, if and after such assumption, any Indemnified Party’s failure to give notice as provided in this Section 1.7(c) will not relieve the Indemnifying Party shall of the Indemnifying Party’s obligations under this Section 1.7 to the extent such failure is not be entitled to reimbursement prejudicial. No Indemnifying Party, in the defense of any expenses incurred by it in connection such claim or litigation, will, except with such action except the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses an unconditional term of such counsel shall be at judgment or such settlement the expense claimant’s or plaintiff’s release of such Indemnified Party unless (A) from all liability in respect to such claim or litigation. Each Indemnified Party will furnish such information regarding such Indemnified Party or the claim in question as an Indemnifying Party may reasonably request in writing and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties as will be reasonably required in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled connection with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason defense of such settlement or judgmentclaim and litigation resulting from such claim.

Indemnification Procedures. Each person entitled In the event that ATS intends to claim indemnification under this pursuant to Section 5 7.1, ATS shall promptly notify SkinMedica subject to the indemnification obligation (an “Indemnified Indemnifying Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 in writing of any action commenced against or by it in respect of which indemnity may be sought hereunderthe alleged Liability, but provided that the failure to so promptly notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) relieve the Indemnifying Party and the Indemnified Party shall have mutually agreed of any obligation under this Agreement except to the contrary, or (B) the named parties in any extent such action (including any impleaded parties) include both failure to provide prompt notice adversely impairs the Indemnifying Party and Party’s ability to defend against the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual claim, suit or potential differing or conflicting interests between themproceeding. The Indemnifying Party shall have the sole right to control the defense and settlement of the Liability, provided that: (i) the Indemnifying Party may not be liable for consent to imposition of any obligation or restriction on ATS in any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such unless mutually agreed among ATS and the Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, ; (ii) the Indemnifying Party shall indemnify keep ATS fully informed and permit ATS to participate (at ATS’ expense) as ATS may reasonably request; and (iii) the Indemnified ATS may, without affecting its right to indemnity hereunder, defend and settle any such claim, suit or proceeding if the Indemnifying Party from declines to defend against such claim, suit or proceeding, or otherwise fails to take responsibility therefor. ATS shall cooperate with the Indemnifying Party and against its legal representatives in the investigation of any lossLiability. Except as provided otherwise in this Section 7.2, damage the ATS shall not, except at its own cost, voluntarily make any payment or liability by reason incur any expense with respect to any claim or suit without the prior written consent of such settlement or judgmentthe Indemnifying Party.

Indemnification Procedures. Each person entitled to indemnification The Party claiming indemnity under this Section 5 Article 11 (an “the "Indemnified Party”") shall give written notice to the Party from whom indemnity is being sought (the "Indemnifying Party") promptly after learning of such Claim. In the event of a claim relating to the U.S., the Parties shall confer as promptly as reasonably practicable to each party required to provide whether such claim would result in indemnification under this Section 5 of 11.3 and in any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure event how to so notify an respond to the claim. The Indemnified Party shall provide the Indemnifying Party shall not release such Indemnifying Party from any liability that it may havewith reasonable assistance, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of at the Indemnifying Party's expense, in connection with the defense of the Claim for which indemnity is being sought. Upon The Indemnified Party may participate in and monitor such notificationdefense with counsel of its own choosing at its sole expense; provided, however, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain assume and conduct the defense of the Claim with counsel of its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themchoice. The Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party, such consent not to be liable for unreasonably withheld, unless the settlement involves only the payment of money. So long as the Indemnifying Party is actively defending the Claim in good faith, the Indemnified Party shall not settle any such Claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, (a) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement of with respect to the claim in any proceeding effected without its written manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintifffrom, the Indemnifying Party in connection therewith), and (b) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentas provided in this Article 11.

Indemnification Procedures. Each person entitled Except as provided below in Section 6 with respect to contribution, the indemnification under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or provided herein by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release be the exclusive remedy of any and all Indemnified Parties for the breach of a representation, warranty or agreement hereunder by an Indemnifying Party; provided, however, that each Indemnified Party shall be entitled to pursue any other remedy at law or in equity for any such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement breach so long as such failure the damages sought to be recovered shall not have materially prejudiced exceed the position of Losses incurred thereby resulting from such breach. In the Indemnifying Party. Upon event that any action or regulatory proceeding shall be commenced or claim asserted which may entitle an Indemnified Party to be indemnified under this Agreement, such notification, party shall give the Indemnifying Party written or telegraphic notice of such action or claim reasonably promptly after receipt of written notice thereof. The Indemnifying Party shall be entitled to participate in and, upon notice to the Indemnified Party, assume the defense of any such action if it is a or claim brought by a third partyin reasonable cooperation with, and, if and after such assumptionwith the reasonable cooperation of, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described belowIndemnified Party. In any such action, any The Indemnified Party shall have the right to retain employ its own counselcounsel in any such action in addition to the counsel of the Indemnifying Party, but the fees and expenses of such separate counsel shall be at the expense of such the Indemnified Party unless (Ai) the employment of counsel by the Indemnified Party at its expense have been authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party and has not in fact employed counsel to assume the Indemnified Party shall have mutually agreed to defense of such action or proceeding within a reasonable time after receiving notice of the contrary, commencement of the action or proceeding or (Biii) the named parties in to any such action or proceeding (including any impleaded parties) include both the Indemnifying Party and one or more Indemnified Parties, and the Indemnified Parties shall have been advised by counsel that there may be one or more legal defenses available to them which are different from or additional to those available to the Indemnifying Party (it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all Company Parties, one such firm for all Underwriter Parties and one such firm for all Financial Security Parties, as the case may be, which firm shall be designated in writing by the Company in respect of the Company Parties, by the Underwriter in respect of the Underwriter Parties and by Financial Security in respect of the Financial Security Parties), in each of which cases the fees and expenses of counsel will be at the expense of the Indemnifying Party and representation of both parties by the same counsel would all such fees and expenses will be inappropriate due to actual or potential differing or conflicting interests between themreimbursed promptly as they are incurred. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld such claim or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, action unless the Indemnifying Party shall indemnify the have consented thereto or be in default in its obligations hereunder. Any failure by an Indemnified Party from to comply with the provisions of this Section shall relieve the Indemnifying Party of liability only if such failure is prejudicial to the position of the Indemnifying Party and against any loss, damage or liability by reason then only to the extent of such settlement or judgmentprejudice.

Indemnification Procedures. Each person entitled to indemnification In the event an Investor Indemnified Party should have a claim against the Company under this Section 5 Article VI, such Investor Indemnified Party shall deliver notice of such claim (an “which claim shall be described with reasonable specificity in such notice) with reasonable promptness to the Company. The failure by such Investor Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure Party to so notify an Indemnifying Party the Company shall not release such Indemnifying Party relieve the Company from any liability which it may have to such Investor Indemnified Party under this Article VI, except to the extent that the Company demonstrates that it may havehas been actually prejudiced by such failure. Subject to Section 6.2, otherwise than on account if the Company does not notify such Investor Indemnified Party within 30 calendar days following delivery of such notice that the Company disputes its liability to such Investor Indemnified Party under this indemnity agreement so long as Article VI, such failure claim specified by such Investor Indemnified Party in such notice shall not have materially prejudiced the position conclusively be deemed a liability of the Indemnifying Party. Upon such notification, Company under this Article VI and the Indemnifying Party Company shall assume pay in same-day funds the defense amount of such action if it liability to such Investor Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Company has timely disputed its liability with respect to such claim, as provided above, such Investor Indemnified Party and the Company shall proceed in good faith to negotiate a claim brought by a third party, resolution of such dispute and, if and after not resolved through negotiations, such assumptiondispute shall be resolved by litigation in an appropriate court of competent jurisdiction subject to Section 8.4; PROVIDED, HOWEVER, that no Investor Nominee or Approved Nominee shall participate in the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses resolution of such counsel shall be at dispute on behalf of the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentCompany.

Indemnification Procedures. Each person entitled to indemnification The Party claiming indemnity under this Section 5 Article 12 (an the “Indemnified Party”) shall give written notice as to the Party from whom indemnity is being sought (the “Indemnifying Party”) promptly as reasonably practicable to each party required to provide indemnification under this Section 5 after learning of any the claim, suit, proceeding or cause of action commenced against or by it in respect of for which indemnity may be is being sought hereunder, but failure to so notify an (“Claim”). The Indemnified Party shall provide the Indemnifying Party shall not release such Indemnifying Party from any liability that it may havewith reasonable assistance, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of at the Indemnifying Party’s expense, in connection with the defense of the Claim for which indemnity is being sought. Upon The Indemnified Party may participate in and monitor such notificationdefense with counsel of its own choosing at its sole expense; provided, however, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain assume and conduct the defense of the Claim with counsel of its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themchoice. The Indemnifying Party shall not settle any Claim without the prior written consent of the Indemnified Party, not to be liable for unreasonably withheld, unless the settlement involves only the payment of money. So long as the Indemnifying Party is actively defending the Claim in good faith, the Indemnified Party shall not settle any such Claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, (a) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement of with respect to the Claim in any proceeding effected without its written manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintifffrom, the Indemnifying Party shall in connection therewith), and (b) the Indemnifying Party will remain responsible to indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentas provided in this Article 12.

Indemnification Procedures. Each person entitled The Party that intends to claim indemnification under this Section 5 Article 11 (an the “Indemnified PartyIndemnitee”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 notify the other Party (the “Indemnitor”) in writing of any action commenced against or by it claim in respect of which indemnity the Indemnitee or any of its directors, officers, employees, agents, licensors, successors, or assigns intends to claim such indemnification promptly upon becoming aware of such claim, and the Indemnitor shall have sole control of the defense and/or settlement thereof, provided that the Indemnitee may be sought hereunderparticipate in any such proceeding with counsel of its choice at its own expense. An Indemnitee’s failure to deliver written notice to the Indemnitor promptly after receiving notice of a claim, if materially prejudicial to its ability to defend such action, shall relieve such Indemnitor of any liability to the Indemnitee under this Article 11, but failure the omission to so notify an Indemnifying Party deliver written notice to the Indemnitor shall not release such Indemnifying Party from relieve the Indemnitor of any liability that it may haveotherwise have to the other Party hereunder. The Indemnitee, otherwise than on account its employees and agents, shall cooperate fully with the Indemnitor and its legal representatives and provide full information in the investigation of any claim covered by this indemnity agreement so long as such failure shall not have materially prejudiced indemnification, at the position of Indemnitor’s expense. Notwithstanding anything to the Indemnifying Party. Upon such notificationcontrary contained in this Article 11, the Indemnifying neither Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of liable for any costs or expenses incurred by it without its prior written authorization. The Indemnitee may not make any admissions in connection with the indemnified claim, and may not consent to any settlement or judgment in connection with such action except as described below. In any such action, any Indemnified Party shall have claim without the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its Indemnitor’s prior written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentconsent.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of If any action commenced will be brought against or by it any party in respect of which indemnity may be sought hereunderpursuant to this Agreement (the “ Indemnified Party ”), but failure to so such Indemnified Party will promptly notify an the party from whom indemnity is being sought (the “ Indemnifying Party shall not release such Indemnifying Party from any liability that it may have”) in writing, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, and the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall will have the right to retain assume the defence thereof with counsel of its own counselchoosing. Any Indemnified Party will have the right to employ separate counsel in any such action and participate in the defence thereof, but the fees and expenses of such counsel shall will be at the expense of such Indemnified Party unless (A) except to the extent that the employment thereof has been specifically authorized by the Indemnifying Party in writing, the Indemnifying Party has failed after a reasonable period of time to assume such defence and to employ counsel or in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Indemnifying Party and the position of such Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themParty. The Indemnifying Party shall will not be liable to any Indemnified Party under this Section 13 for any settlement of any proceeding by an Indemnified Party effected without its the Indemnifying Party’s prior written consent, which consent (which shall will not be unreasonably withheld or delayed by such Indemnifying Party)delayed; or to the extent, but if settled with such consent or if there be final judgment for only to the plaintiffextent that a loss, the Indemnifying Party shall indemnify the Indemnified Party from and against any lossclaim, damage or liability by reason of such settlement or judgmentis attributable to any Indemnified Party’s indemnification pursuant to this Section 13.

Indemnification Procedures. Each person entitled to indemnification (a) Promptly after discovery or receipt of notice by an Indemnified Buyer or the Company or the Principal Shareholder (in each case an "INDEMNIFIED PERSON") under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 8 of any action commenced against or by it in respect of a claim for which indemnity may be sought hereundersought, such Indemnified Person will, if a claim is to be made against an indemnifying party, give notice to the indemnifying party of the commencement of such claim, but the failure to so notify an Indemnifying Party shall the indemnifying party will not release such Indemnifying Party from relieve the indemnifying party of any liability that it may havehave to any Indemnified Person, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced except to the position of extent that the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume indemnifying party demonstrates that the defense of such action if is prejudiced by the Indemnified Person's failure to give such notice. (b) If any proceeding referred to in Section 8 is brought against an Indemnified Person and it is a claim brought by a third party, and, if and after gives notice to the indemnifying party of the commencement of such assumptionproceeding, the Indemnifying Party indemnifying party will pay the costs of defending such proceeding including costs of counsel selected by the Indemnified Person, which counsel shall not be reasonably satisfactory to the indemnifying party. The Indemnified Person shall control the defense and settlement of the proceeding provided that the Indemnified Person shall consult with the indemnifying party. The indemnifying party will, unless the claim involves Taxes, be entitled to reimbursement of any expenses incurred by it participate in connection with such action except as described below. In any proceeding unless the indemnifying party is also or could become a party to such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party proceeding and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties Person determines in any good faith that such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel participation would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentinappropriate.

Indemnification Procedures. Each person entitled In the event a Party intends to claim indemnification under this Section 5 16.5 for itself or its indemnitee (an “Indemnified Party”the "Indemnitee"), such Party shall promptly notify the other Party (the "Indemnitor") shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 in writing of any action commenced against or by it matter in respect of which indemnity the Indemnitee intends to claim such indemnification. The Indemnitee shall permit the Indemnitor, at its discretion, to settle any such matter and agrees to the complete control of such defense or settlement by the Indemnitor; provided, however, that such settlement does not adversely (i) affect the Indemnitee's rights under this Agreement or (ii) impose any material obligations on the Indemnitee in addition to those set forth herein in order for Indemnitee to exercise rights under this Agreement. No settlement of any such matter which materially and adversely affect the Indemnitee's rights under this Agreement or impose any material obligations on the Indemnitee in addition to those set forth herein in order for Indemnitee to exercise rights under this Agreement may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced made by the position Indemnitor without the prior written consent of the Indemnifying PartyIndemnitee. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party The Indemnitee shall not be entitled to reimbursement responsible for any legal fees or other costs incurred other than as provided herein. The Indemnitee and its directors, officers and employees shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any matter covered by the applicable indemnification. The Indemnitee shall have the right, but not the obligation, to be represented by counsel of its own selection and at its own expenses incurred by it in connection with such action except as described belowany matter that is subject to indemnification. In any such action, any Indemnified It is understood that only a Party shall have the right to retain may claim indemnity under this Section 16 (on its own counsel, but the fees and expenses behalf or on behalf of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying PartyIndemnitee), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentother TANABE Indemnitees and VIVUS Indemnitees may not directly claim indemnity hereunder.

Indemnification Procedures. Each person entitled to A Party seeking indemnification under this Section 5 (an “Indemnified Party”) 10 shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 notify the other Party in writing of any action commenced against action, claim or by it liability in respect of which indemnity may be sought hereundersuch Party or any related indemnified party intends to claim such indemnification. The Party seeking indemnification shall permit, but failure and shall cause its related indemnified parties to so notify an Indemnifying permit, the indemnifying Party to settle any such action, claim or liability and agrees to the control of such defense or settlement by the indemnifying Party; provided, however, that such settlement does not adversely affect the indemnified Party’s (or any related indemnified party’s) rights hereunder or impose any obligations on the indemnified Party or any related indemnified party in addition to those set forth herein. The indemnified Party shall not release settle any such Indemnifying Party from any action, claim or liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced without the position prior written consent of the Indemnifying indemnifying Party. Upon such notification, and the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying indemnifying Party shall not be entitled to reimbursement responsible for any attorneys’ fees or other costs incurred other than as provided herein. The indemnified Party and its related indemnified parties and their respective employees and legal representatives, shall cooperate reasonably with the indemnifying Party and its legal representatives in the investigation and defense of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified claim or liability covered by this Article 10 An indemnified Party shall have the right right, but not the obligation, to retain be represented by counsel of its own counselselection and at its own expense for purposes of being advised as to the status or resolution of any claim, but in which case the fees and expenses indemnifying Party shall consider in good faith the views of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying indemnified Party and its counsel and shall keep the Indemnified indemnified Party shall have mutually agreed and its counsel reasonably informed of the progress of the defense, litigation, arbitration, or settlement discussions relating to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentapplicable claim.

Indemnification Procedures. Each person Person entitled to indemnification under this Section 5 Article VI (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 Article VI (an “Indemnifying Party”) of the commencement of any action commenced against action, suit, proceeding or by it investigation or threat thereof made in writing in respect of which indemnity may be sought hereunder; provided, but however, failure to so notify an Indemnifying Party shall not release relieve such Indemnifying Party from any liability that it may have, have otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, assumption the Indemnifying Indemnified Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. An Indemnifying Party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel in any one action for all parties indemnified by such Indemnifying Party with respect to such claim except for local counsel if the attorneys selected by the Indemnified Party do not maintain an office within the jurisdiction of the court, unless in the reasonable judgment of any Indemnified Party a conflict of interest may exist between such Indemnified Party and any other of such Indemnified Parties with respect to such claim, in which event the Indemnifying Party shall be obligated to pay the fees and expenses of such additional counsel or counsels. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment. In the event that any indemnifying party enters into any settlement without the written consent of the indemnified party the indemnifying party shall not consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff of a release of such indemnified party from all liability in respect of such claim or litigation.

Indemnification Procedures. Each person If any action is brought or any claim is made against any party entitled to indemnification under be indemnified pursuant to this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it 6 in respect of which indemnity may be sought hereunderagainst the indemnitor pursuant to Section 6 hereof, but failure to so such party shall promptly notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position indemnitor in writing of the Indemnifying Party. Upon institution of such notification, action or the Indemnifying Party making of such claim and the indemnitor shall assume the defense of such action if it is a claim brought by a third partyor claim, and, if including the employment of counsel and after such assumption, the Indemnifying Party shall not be entitled to reimbursement payment of any expenses incurred by it in connection with such action except as described belowexpenses. In any such action, any Indemnified Party Such indemnified party shall have the right to retain employ its or their own counselcounsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party party unless (A) the Indemnifying Party and the Indemnified Party employment of such counsel shall have mutually agreed been authorized in writing by the indemnitor in connection with the defense of such action or claim or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the contraryindemnitor (in which case the indemnitor shall not have the right to direct any different or additional defense of such action or claim on behalf of the indemnified party or parties), or (B) in any of which events such fees and expenses of not more than one additional counsel for the named indemnified parties in shall be borne by the indemnitor. Except as expressly provided above, if the indemnitor shall not previously have assumed the defense of any such action (including or claim, at such time as the indemnitor does assume the defense of such action or claim, the indemnitor shall thereafter be liable to any impleaded parties) include both person indemnified pursuant to this Agreement for any legal or other expenses subsequently incurred by such person in investigating, preparing or defending against such action or claim. Anything in this paragraph to the Indemnifying Party and contrary notwithstanding, the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party indemnitor shall not be liable for any settlement of any proceeding such claim or action effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentconsent.

Indemnification Procedures. Each person entitled In any case in which one party hereto may be asked to indemnify the other or hold the other harmless, the party from whom indemnification is sought (the “Indemnifying Party”) shall be advised of all pertinent facts concerning the situation in question, and the party claiming a right to indemnification under this Section 5 (an the “Indemnified Party”) shall give notice as promptly as reasonably practicable will use reasonable care to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so identify and notify an the Indemnifying Party shall not release such Indemnifying Party from promptly concerning any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of situation which presents or appears to present a claim for indemnification against the Indemnifying Party. Upon such notification, the The Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right option to retain its own counsel, but defend the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) against any claim which may be the subject of the indemnification, and in the event the Indemnifying Party so elects, such defense shall be conducted by counsel chosen by the Indemnifying Party and satisfactory to the Indemnified Party and the Indemnifying Party will so notify the Indemnified Party and thereupon such Indemnifying Party shall take over the complete defense of the claim and the Indemnified Party shall have mutually agreed sustain no further legal or other expenses in such situation for which indemnification has been sought under this paragraph, except the reasonable expenses of any additional counsel retained by the Indemnified Party. In no case shall any party claiming the right to the contrary, indemnification confess any claim or (B) the named parties make any compromise in any case in which the other party has been asked to indemnify such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual party unless such confession or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled compromise is made with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentother party’s prior written consent.

Indemnification Procedures. Each person Promptly after receipt by a Person who may be entitled to indemnification under this Section 5 6.2 (an “Indemnified Party”) shall give of notice as promptly as reasonably practicable of the commencement of any action (including any governmental action) for which indemnification may be available under Section 6.2, that Indemnified Party shall, if a claim in respect thereof is to each party required to be made against any Person who must provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder6.2 (an “Indemnifying Party”), but failure deliver to so notify an the Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position a written notice of the Indemnifying Party. Upon such notificationcommencement thereof, and the Indemnifying Party shall have the right to participate in and, to the extent the Indemnifying Party so desires, jointly with any other Indemnifying Party similarly notified, to assume the defense of such action if it is a claim brought by a third party, and, if and after such assumptionthereof with counsel mutually satisfactory to the parties. However, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but counsel (and the reasonable fees and expenses of such counsel shall be at paid by the expense Indemnifying Party) and assume its own defense if: (i) the retention of such Indemnified Party unless counsel has been specifically authorized in writing by the Indemnifying Party, (Aii) the Indemnifying Party has failed promptly to assume the defense and employ experienced counsel reasonably acceptable to the Indemnified Party shall have mutually agreed to after the contrary, Indemnifying Party has received notice of the indemnification matter from the Indemnified Party or (Biii) the named parties in to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and the Indemnifying Party, and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests a manifest conflict of interest between them. The Indemnifying Party nevertheless shall not not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for all Indemnified Parties combined. No indemnification provided for in Subsection 6.2(a) or (b) shall be available to any settlement Person who shall fail to give notice as provided in this Subsection 6.2(c) to the extent that the Person to whom notice was not given was unaware of any the proceeding effected without its written consent (to which shall not be unreasonably withheld or delayed the notice would have related and was materially prejudiced by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, failure to give the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentnotice.

Indemnification Procedures. Each person entitled to indemnification The party claiming indemnity under this Section 5 11 (an the “Indemnified Party”) shall give written notice as to the party from whom indemnity is being sought (the “Indemnifying Party”) promptly as reasonably practicable to each party required to after learning of such Claim. The Indemnified Party shall provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an the Indemnifying Party shall not release such Indemnifying Party from any liability that it may havewith reasonable assistance, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of at the Indemnifying Party’s expense, in connection with the defense of the claim for which indemnity is being sought. Upon The Indemnified Party may participate in and monitor such notificationdefense with counsel of its own choosing at its sole expense; however, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain assume and conduct the defense of the claim with counsel of its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themchoice. The Indemnifying Party shall not settle any CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. claim without the prior written consent of the Indemnified Party, not to be liable for unreasonably withheld, unless the settlement involves only the payment of money. So long as the Indemnifying Party is actively defending the claim in good faith, the Indemnified Party shall not settle any such claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the claim as provided above, (a) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement of with respect to the claim in any proceeding effected without its written manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintifffrom, the Indemnifying Party shall in connection therewith), and (b) the Indemnifying Party will remain responsible to indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentas provided in this Section 11.

Indemnification Procedures. Each person entitled If a third party asserts any claim or allegation which, if proven, would trigger the indemnification obligations set forth in paragraphs 12.1 and 12.2, the indemnifying party shall be notified promptly of such claim by the indemnified party and given control of the defence and/or settlement thereof. After notice from the indemnifying party to indemnification the indemnified party of its election to assume the defence of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each paragraph 12 for any legal or other expenses subsequently incurred by the indemnified party required to provide indemnification under this Section 5 in connection with the defence thereof. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any action commenced against pending or by it threatened proceeding in respect of which any indemnified party is a party and indemnity may be could have been sought hereunderhereunder by such indemnified party, but failure to so notify unless such settlement includes an Indemnifying Party unconditional release of such indemnified party from all such liability on claims that are the subject matter of such proceeding. Moreover Developer shall not release such Indemnifying Party from any liability that it may havenot, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced in the position absence of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense consent of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent Publisher (which shall not be unreasonably withheld or delayed by such Indemnifying Partydelayed), but if settled effect any settlement of any pending, threatened or actual proceeding or claim which has the effect of compromising in any way the rights, interests and licenses in the Product or the license granted to Publisher hereunder. The foregoing provisions of this paragraph 12 state the entirety of the parties’ obligations with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against respect to any loss, damage or liability claim by reason of such settlement or judgmentany third party.

Indemnification Procedures. Each person entitled Promptly after an Investor Party receives notice of a claim or the commencement of an action for which the Investor Party intends to seek indemnification under this Section 5 9.1, the Investor Party will notify the Company (an or, with respect to claims relating to any period prior to the Business Combination Closing, SWVL and Holdings) (such party, the “Indemnified Indemnifying Party”) shall in writing of the claim or commencement of the action, suit or proceeding; provided, however, that failure to notify the Indemnifying Party will not relieve such party from liability under Section 9.1, except to the extent it has been materially prejudiced by the failure to give notice as promptly as reasonably practicable notice. The Indemnifying Party will be entitled to each party required to provide indemnification under this Section 5 participate in the defense of any action commenced against claim, action, suit or by it in respect of proceeding as to which indemnity may be sought hereunderindemnification is being sought, but failure to so notify an and if the Indemnifying Party shall not release such Indemnifying acknowledges in writing the obligation to indemnify the Investor Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced against whom the position of the Indemnifying Party. Upon such notificationclaim or action is brought, the Indemnifying Party shall may (but will not be required to) assume the defense against the claim, action, suit or proceeding with counsel satisfactory to it. After the Indemnifying Party notifies the Investor Party that the Indemnifying Party wishes to assume the defense of such action if it is a claim brought by a third partyclaim, andaction, if and after such assumptionsuit or proceeding, the Indemnifying Party shall will not be entitled to reimbursement of liable for any further legal or other expenses incurred by it the Investor Party in connection with such action except as described below. In any such the defense against the claim, action, any Indemnified Party shall have suit or proceeding except if, in the right to retain its own counsel, but the fees and expenses opinion of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contraryInvestor Party, or (B) it would be inappropriate under the named parties in any such action (including any impleaded parties) include applicable rules of professional responsibility for the same counsel to represent both the Indemnifying Party and such Investor Party. In such event, the Indemnified Indemnifying Party will pay the reasonable fees and representation expenses of both parties by no more than one separate counsel for all such Investor Parties promptly as such fees and expenses are incurred. Each Investor Party, as a condition to receiving indemnification as provided in Section 9.1, will cooperate in all reasonable respects with the same counsel would be inappropriate due Indemnifying Party in the defense of any action or claim as to actual or potential differing or conflicting interests between themwhich indemnification is sought. The Indemnifying Party shall will not be liable for any settlement of any proceeding action effected without its prior written consent, which consent (which shall not be unreasonably withheld withheld, delayed or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the conditioned. The Indemnifying Party shall indemnify will not, without the Indemnified prior written consent of the Investor Party, effect any settlement of a pending or threatened action with respect to which an Investor Party is, or is informed that it may be, made a party and for which it would be entitled to indemnification, unless the settlement includes an unconditional release of the Investor Party from all liability and against claims which are the subject matter of the pending or threatened action. The remedies provided for in this Article IX are not exclusive and shall not limit any loss, damage rights or liability by reason of such settlement remedies which may otherwise be available to any Investor Party at law or judgmentin equity.

Indemnification Procedures. Each person entitled to indemnification The Party claiming indemnity under this Section 5 Article 11 (an the “Indemnified Party”) shall give written notice to the Party from whom indemnity is being sought (the “Indemnifying Party”) promptly after learning of such Claim. In the event of a claim relating to the U.S., the Parties shall confer as promptly as reasonably practicable to each party required to provide whether such claim would result in indemnification under this Section 5 of 11.1 and in any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure event how to so notify an respond to the claim. The Indemnified Party shall provide the Indemnifying Party shall not release such Indemnifying Party from any liability that it may havewith reasonable assistance, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of at the Indemnifying Party’s expense, in connection with the defense of the Claim for which indemnity is being sought. Upon The Indemnified Party may participate in and monitor such notificationdefense with counsel of its own choosing at its sole expense; provided, however, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain assume and conduct the defense of the Claim with counsel of its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themchoice. The Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party, such consent not to be liable for unreasonably withheld, unless the settlement involves only the payment of money. So long as the Indemnifying Party is actively defending the Claim in good faith, the Indemnified Party shall not settle any such Claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, (a) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement of with respect to the claim in any proceeding effected without its written manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintifffrom, the Indemnifying Party in connection therewith), and (b) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentas provided in this Article 11.

Indemnification Procedures. Each person entitled A party claiming indemnification pursuant to indemnification under this Section 5 (an “section shall promptly give the other party written notice of any action, suit or proceeding to which it claims such indemnity applies. The indemnifying party shall provide the defense with respect to claims to which this indemnity applies and in doing so shall have the right to control the defense and settlement with respect to such claims; provided, however, that any settlement includes a general release of the indemnified party with no admission or finding of fault by the indemnified party. The indemnified party shall cooperate fully with the indemnifying party in such defense, including making relevant documents available and providing witnesses to testify at any deposition, trial, hearing, arbitration, or other proceeding. A KNC Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 Party or Synthes Indemnified Party may participate at its expense in the defense of any action commenced against or by it in respect of claim which indemnity may be sought hereunder, but failure asserted against it and for which such party seeks indemnity pursuant to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account the provisions of this indemnity agreement so long as section, or such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying KNC Indemnified Party shall or Synthes Indemnified Party may assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such or action, any Indemnified Party shall have including the right to retain settle or compromise any claim against it without the consent of the indemnifying party; provided, however, that in assuming such defense it shall be deemed to have waived its own counsel, but right to indemnification except in cases where: (i) the fees indemnifying party has failed to promptly initiate and expenses continue the defense of such counsel shall be at the expense of such Indemnified Party unless claim; or (Aii) the Indemnifying Party indemnified party reasonably determines that a conflict of interest between the indemnifying party and the Indemnified Party indemnified party exists with respect to such claim. Each party shall have mutually agreed make a reasonable effort to the contrary, or (B) the named parties cooperate in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentand/or defense.

Indemnification Procedures. Each person entitled to indemnification Promptly after receipt by a Holder Indemnitee or a Company Indemnitee (collectively, "Indemnitees" and, individually, an "Indemnitee") under this Section 5 (an “Indemnified Party”6.8(a) shall give or 6.8(b) of notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of the commencement of any action commenced against or by it action, such Indemnitee will, if a claim in respect thereof is to be made against the indemnifying party under such clause, notify the indemnifying party in writing of which indemnity may be sought hereunder, the commencement thereof; but failure the omission so to so notify an Indemnifying Party shall the indemnifying party will not release such Indemnifying Party relieve the indemnifying party from any liability which it may have to any Indemnitee otherwise than under such clauses except to the extent that the indemnifying party has been prejudiced by the failure to receive such notice. In case any such action is brought against any Indemnitee, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate in, and, to the extent that it may havewish, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notificationjointly with any other indemnifying party similarly notified, the Indemnifying Party shall to assume the defense of thereof, with counsel reasonably satisfactory to such action if it is a claim brought by a third partyIndemnitee, and, if and after written notice from the indemnifying party to such assumptionIndemnitee of its election to assume the defense thereof, the Indemnifying Party shall indemnifying party will not be entitled liable to reimbursement of such Indemnitee under such clause for any legal or other expenses subsequently incurred by it such Indemnitee in connection with such action except as described below. In any such action, any Indemnified Party shall the defense thereof other than reasonable costs of investigation; provided that the Indemnitee will have the right to retain its own employ one counsel to represent such Indemnitee if, in the reasonable judgment of such Indemnitee (based on the written opinion of counsel), but it is advisable for such party to be represented by separate counsel because a conflict of interest exists between such indemnified and indemnifying party in respect of such claim, and in that event the reasonable fees and expenses of such separate counsel shall will be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties paid by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themindemnifying party. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party)Notwithstanding the foregoing, but if settled with such consent or if there be final judgment for the plaintiffCompany is an Indemnitee, the Indemnifying Party shall indemnify Company will designate the Indemnified Party from one counsel, and against any lossin all other circumstances, damage or liability the one counsel will be designated by reason a majority in interest based upon the Registrable Securities of such settlement or judgmentthe Indemnities. For purposes of this Section 6.8 the terms "control," and "controlling person" have the meanings which they have under the Securities Act.

Indemnification Procedures. Each person entitled to indemnification The Indemnified Party shall promptly notify the Licensee upon becoming aware of a Claim under this Section 5 (an “9. The Licensee shall promptly assume control of the defense and investigation of such Claim, with counsel reasonably acceptable to the Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to reasonably cooperate with the contraryLicensee in connection therewith, in each case at the Licensee’s sole cost and expense. The Indemnified Party may participate in the defense of such Claim, with counsel of its own choosing and at its own cost and expense. Licensee shall not settle any such Claim on any terms or (B) the named parties in any manner that adversely affects the rights of any Indemnified Party without such action (including any impleaded parties) include both Indemnified Party’s prior written consent. If the Indemnifying Party and Licensee fails or refuses to assume control of the defense of such Claim, the Indemnified Party has the right, but no obligation, to defend against such Claim, including settling such Claim after giving Notice to the Licensee, in each case in such manner and representation of both parties by on such terms as the same counsel would be inappropriate due Indemnified Party may deem appropriate. Neither the Indemnified Party’s failure to actual perform any obligation under this Section 9.2 nor any Indemnified Party’s act or potential differing omission in the defense or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without such Claim will relieve the Licensee of its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party)obligations under this Section 9.2, but if settled including with such consent or if there be final judgment for respect to any Losses, except to the plaintiff, extent that the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentLicensee can demonstrate that it has been materially prejudiced as a result thereof.

Indemnification Procedures. Each person entitled to In the event that any Indemnitee is seeking indemnification under this Section 5 8.4 from a Party (an the “Indemnified Indemnifying Party”) ), the other Party shall give notice notify the Indemnifying Party of such claim with respect to such Indemnitee as promptly soon as reasonably practicable to each party required to provide indemnification under this Section 5 after the Indemnitee receives notice of any action commenced against or by it in respect the claim, and the Party (on behalf of which indemnity may be sought hereunder, but failure to so notify an itself and such Indemnitee) shall permit the Indemnifying Party to assume direction and control of the defense of the claim (including the right to settle the claim solely for monetary consideration) and shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long cooperate as such failure shall not have materially prejudiced requested (at the position expense of the Indemnifying Party. Upon ) in the defense of the claim; it being understood and agreed that the right to assume the direction and control of such notificationlitigation shall be conditioned upon the ongoing existence of each of the following: (i) the Indemnifying Party expressly agrees in writing to the Indemnified Party without a reservation of rights that, as between the Parties, the Indemnifying Party shall assume be solely obligated to fully satisfy and discharge the defense of claim notwithstanding any limitation with respect to indemnification included in this Agreement; (ii) such action if it claim is solely for monetary damage; and (iii) such claim shall not involve a criminal matter or be a claim being brought by a third party, and, if and after such assumption, governmental authority. The indemnification obligations under this Section 8.4 shall not apply to any harm suffered as a direct result of any delay in notice to the Indemnifying Party hereunder or to amounts paid in settlement of any claim, demand, action or other proceeding if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be entitled to reimbursement of any expenses incurred by it in connection withheld or delayed unreasonably. The Indemnitee, its employees and agents, shall reasonably cooperate with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and its legal representatives in the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement investigation of any claim, demand, action or other proceeding effected without its written consent (which shall not be unreasonably withheld or delayed covered by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentthis Section 8.4.

Indemnification Procedures. Each person entitled The obligation of indemnification set forth in Sections 14.2 and 14.3 above are subject to indemnification under this Section 5 14.4. A Party claiming indemnification (an the “‘Indemnified PartyParties”) shall give notice as promptly as reasonably practicable timely notify the indemnifying Party of any claim or litigation that is subject to each party indemnification hereunder. If the indemnifying Party is Seller, it shall have the exclusive right to assume the defense, at its expense, of, and shall defend and/ or settle, any such claim or litigation. If the indemnifying Party is Purchaser, it shall have the obligation to defend and/or settle the claim or litigation; provided that Seller reserves the right, without being required to provide indemnification under this Section 5 do so, and without waiver of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so defend any claim, action or lawsuit coming within the scope of Section 14.2. If the indemnifying Party fails to notify an Indemnifying Party shall not release such Indemnifying Party from any liability the Indemnified Parties in writing that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall will assume the defense of such action if it is a the subject claim brought by a third partyor litigation within ten (30) days following receipt of notice thereof, and, if and after such assumptionor thereafter fails to diligently defend or attempt to settle said claim or litigation, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party Parties shall have the right to retain its assume their own counseldefense, and/ or settle or compromise any such claim or litigation and the indemnifying Party shall be obligated to reimburse the Indemnified Parties for any and all reasonable expenses (including but not limited to attorneys’ fees) incurred in the fees and expenses defense of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed claim or litigation, in addition to the contraryindemnifying Party’s other indemnity obligations hereunder set forth in Section 14, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed affected by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentParties.

Indemnification Procedures. Each person Promptly after receipt by a Party seeking indemnification under this Section 8 (an “Indemnitee”) of notice of any pending or threatened claim against it (an “Action”), such Indemnitee shall give written notice to the Party from whom the Indemnitee is entitled to seek indemnification pursuant to this Section 8 (the “Indemnifying Party”) of the commencement thereof; provided that the failure so to notify the Indemnifying Party shall not relieve it of any liability that it may have to any Indemnitee hereunder, except to the extent the Indemnifying Party demonstrates that it is materially prejudiced thereby. Any Action that is subject to indemnification under this Section 5 (8 shall be brought against an “Indemnified Party”) Indemnitee and it shall give written notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an the Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notificationcommencement thereof, the Indemnifying Party shall assume the defense of thereof with counsel reasonably satisfactory to such action if it is a claim brought by a third party, Indemnitee and, if and after such assumption, the Indemnifying Party shall not be entitled liable to reimbursement such Indemnitee under this Section 8 for any fees of other counsel or any expenses other expenses, in each case subsequently incurred by it such Indemnitee in connection with such action except as described belowthe defense thereof. In No compromise or settlement of any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall Action may be at the expense of such Indemnified Party unless (A) effected by the Indemnifying Party and without the Indemnified Party shall have mutually agreed to the contraryIndemnitee’s written consent, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written which consent (which shall not be unreasonably withheld or delayed delayed, unless (A) there is no finding or admission of any violation of Law or any violation of the rights of any person and no effect on any other claims that may be made against the Indemnitee and (B) the sole relief provided is monetary damages that are paid in full by such the Indemnifying Party), but if settled with such consent . No compromise or if there settlement of any Action may be final judgment for the plaintiff, effected by an Indemnitee without the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentParty’s prior written consent.

Indemnification Procedures. Each person entitled to (a) Whenever any claim shall arise for indemnification under this Section 5 Agreement (an a “Claim”), the Party seeking indemnification (the “Indemnified Party”) shall give promptly notify the other Party or Parties (the “Indemnifying Party”) in writing of any facts that constitute the basis for the Claim. Such notice as promptly as reasonably practicable shall not be a condition precedent to each party required to provide indemnification any liability of the Indemnifying Party under this Section 5 Agreement, except to the extent that the Indemnifying Party is prejudiced in its ability to defend such a Claim as a result of any action commenced against or by it an unreasonable delay in respect of which indemnity may be sought hereunder, but failure to so notify an notice. (b) The Indemnifying Party shall not release such Indemnifying be entitled to defend any Claim, at its own expense and through counsel reasonably acceptable to the Indemnified Party, if it gives written notice of its intention to do so to the Indemnified Party from any liability that it may have, otherwise than on account within ten (10) days after receipt of this indemnity agreement so long as such failure shall not have materially prejudiced the position a notice of the Indemnifying PartyClaim. Upon such notification, If the Indemnifying Party shall assume elects to retain counsel within such 10-day period, then the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to elect at its own expense to retain its own counsel, but the fees counsel and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) to defend jointly with the Indemnifying Party and such Claim, in which case counsel to the Indemnifying Party shall cooperate fully with counsel to the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both defense. If the Indemnifying Party does not elect to retain counsel and defend the Indemnified Party and representation of both parties by claim, then the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable responsible for payment of the Indemnified Party’s counsel fees. (c) Neither Party hereto shall be entitled to compromise or settle any settlement of any proceeding effected Claim without its the prior written consent (of the other, which consent shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentdelayed.

Indemnification Procedures. Each person entitled to personentitledto indemnification under this Section 5 6 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 6 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person Person entitled to indemnification under this Section 5 Article VIII (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 Article VIII (an “Indemnifying Party”) of the commencement of any action commenced against action, suit, proceeding or by it investigation or threat thereof made in writing in respect of which indemnity may be sought hereunder; provided, but however, failure to so notify an Indemnifying Party shall not release relieve such Indemnifying Party from any liability that it may have, have otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, assumption the Indemnifying Indemnified Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. An Indemnifying Party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel in any one jurisdiction for all parties indemnified by such Indemnifying Party with respect to such claim, unless in the reasonable judgment of any Indemnified Party a conflict of interest may exist between such Indemnified Party and any other of such Indemnified Parties with respect to such claim, in which event the Indemnifying Party shall be obligated to pay the fees and expenses of such additional counsel or counsels. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to indemnification In the event of a potential indemnity obligation under this Section 5 11, the indemnified party shall: (an “Indemnified Party”i) shall give notice as promptly as reasonably practicable notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to each control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party required to provide indemnification notify the indemnifying party of a claim under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party 11 shall not release such Indemnifying Party from any liability that it may haverelieve the indemnifying party of its obligations under this Section 11, otherwise than on account of this indemnity agreement so long as such failure however the indemnifying party shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by such delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any proceeding effected admission of fault by the indemnified party, without its the indemnified party’s prior written consent, such consent (which shall not to be unreasonably withheld withheld, conditioned or delayed by such Indemnifying Party)delayed. Further, but any indemnification obligation under this Section 11 will not apply if settled the indemnified party settles or makes any admission with such consent or if there be final judgment for respect to a claim without the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentindemnifying party’s prior written consent.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “"Indemnified Party”") shall give notice as promptly as reasonably practicable to each party Indemnifying Party required to provide indemnification under this Section 5 Article VII of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release relieve such Indemnifying Party from any liability that it may have, have otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if . If and after such assumption, assumption the Indemnifying Indemnified Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Partyparty), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of If any action commenced shall be brought against or by it any Indemnified Party in respect of which indemnity may be sought hereunderpursuant to this Agreement, but failure to so such Indemnified Party shall promptly notify an the Indemnifying Party shall not release such Indemnifying Party from any liability that it may havein writing, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, and the Indemnifying Party shall have the right to assume the defense thereof with counsel of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described belowits own choosing. In any such action, any Any Indemnified Party shall have the right to retain its own counselemploy separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) except to the extent that the employment thereof has been specifically authorized by the Indemnifying Party in writing, the Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel or in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Indemnifying Party and the position of such Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themParty. The Indemnifying Party shall will not be liable to any Indemnified Party under this Article 5 for any settlement of any proceeding by an Indemnified Party effected without its the Indemnifying Party's prior written consent (consent, which shall not be unreasonably withheld or delayed by such Indemnifying Party)delayed; or to the extent, but if settled with such consent or if there be final judgment for only to the plaintiffextent that a loss, the Indemnifying Party shall indemnify the Indemnified Party from and against any lossclaim, damage or liability by reason of such settlement or judgmentis attributable to any Indemnified Party's indemnification pursuant to this Article 5.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “Indemnified Party”) indemnified party shall give notice as promptly as reasonably practicable to each notify the indemnifying party required to provide indemnification under this Section 5 in writing of any action commenced against action, claim or by it liability in respect of which indemnity may be sought hereunder, but failure the indemnified party intends to so notify an Indemnifying Party claim indemnification from the indemnifying party. The indemnified party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced permit the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third indemnifying party, andat its discretion, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In settle any such action, any Indemnified Party shall have claim or liability, and agrees to the right to retain its own counsel, but the fees and expenses complete control of such counsel defense or settlement by the indemnifying party, provided however, that such settlement does not adversely affect the rights of the indemnified party hereunder or impose any obligations on the indemnified party in addition to those set forth herein in order for it to exercise such rights. No such action, claim or liability shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties settled by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected indemnified party without its the prior written consent (of the indemnifying party, which consent shall not be unreasonably withheld or delayed delayed, and the indemnifying party shall not be responsible for any legal fees or other costs incurred by such Indemnifying Party)the indemnified party other than as provided herein. The indemnified party and its directors, officers, employees and agents shall cooperate fully with the indemnifying party and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnification, and shall have the right, but if settled not the obligation, to be represented by counsel of their own selection and at their own expense. *****Confidential Material redacted and filed separately with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentCommission.

Indemnification Procedures. Each person entitled Promptly after receipt by an indemnified party pursuant to indemnification under this the provisions of Section 5 (an “Indemnified Party”4(a) shall give or 4(b) hereof of notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of the commencement of any action commenced involving the subject matter of the foregoing indemnity provisions, such indemnified party shall, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of such Sections 4(a) or by it in respect 4(b), notify the indemnifying party of which indemnity may be sought hereunderthe commencement thereof; provided, but however, that the failure to so notify an Indemnifying Party the indemnifying party shall not release such Indemnifying Party relieve the indemnifying party from any liability that which it may have, have to the indemnified party otherwise than on account of this indemnity agreement so long as hereunder. In case such failure shall not have materially prejudiced action is brought against any indemnified party and it notifies the position indemnifying party of the Indemnifying Party. Upon such notificationcommencement thereof, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party indemnifying party shall have the right to retain participate in, and to the extent that it may wish, jointly assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its own counselelection to so assume the defense thereof, but the fees and indemnifying party shall not be liable to such indemnified party pursuant to the provisions of Section 4(a) or 4(b) for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation (except if representation of such indemnified party by counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel indemnifying party would be inappropriate due to actual or potential differing or conflicting interests between themthe indemnified party and any other party represented by such counsel). The Indemnifying Party No indemnifying party shall not be liable to an indemnified party for any settlement of any proceeding effected action or claim without its written the consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for of the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentindemnifying party.

Indemnification Procedures. Each person entitled to indemnification The Party claiming indemnity under this Section 5 ARTICLE 11 (an the “Indemnified Party”) shall will give written notice as to the Party from whom indemnity is being sought (the “Indemnifying Party”) promptly as reasonably practicable to each party required to after learning of a Claim. The Indemnified Party will provide indemnification under this Section 5 the Indemnifying Party with reasonable assistance, at the Indemnifying Party’s expense, in connection with the defense of any action commenced against or by it in respect of the Claim for which indemnity is being sought. The Indemnified Party may be sought hereunderparticipate in and monitor such defense with counsel of its own choosing at its sole expense; provided, but failure to so notify an however, the Indemnifying Party shall not release such may assume and conduct the defense of the Claim with counsel of its choice. The Indemnifying Party from will not settle any liability that it may haveClaim without the prior written consent of the Indemnified Party, otherwise than on account not to be unreasonably withheld, unless the settlement involves only the payment of this indemnity agreement so money. So long as the Indemnifying Party is actively defending the Claim in good faith, the Indemnified Party will not settle or compromise any such failure shall not have materially prejudiced Claim without the position prior written consent of the Indemnifying Party. Upon If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, (a) the Indemnified Party may defend against, consent to the entry of any judgment, or enter into any settlement with respect to such notificationClaim in any manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such actiontherewith), any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ab) the Indemnifying Party and the Indemnified Party shall have mutually agreed will remain responsible to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentas provided in this ARTICLE 11.

Indemnification Procedures. Each person entitled The Indemnified Parties shall provide written notice to the party from whom indemnification under this Section 5 is sought (an the “Indemnified PartyIndemnitor”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against claim within thirty (30) days after such claim is asserted in writing or by it in respect of which indemnity may be sought hereunder, but legal action against the party claiming indemnification. Failure by the Indemnified Parties to so notify the Indemnitor shall not relieve the Indemnitor from any obligation that the Indemnitor would otherwise have pursuant to this Agreement except to the extent that the Indemnitor has been materially prejudiced by such failure to so notify an Indemnifying Party notify. The Indemnified Parties shall furnish to the Indemnitor, on request, non-privileged information reasonably available to the Indemnified Parties for such defense. The Indemnitor may elect to have sole control of the defense and settlement of such claim, except that the Indemnitor shall not release such Indemnifying Party from enter into any liability that it may haveagreement, otherwise than agreed order, consent judgment, or the like which is binding on account the Indemnified Parties without the consent of this indemnity agreement the Indemnified Parties. However, the Indemnitor can settle the claim without the consent of the Indemnified Parties so long as such failure shall not have materially prejudiced a full and unconditional release is provided to the position Indemnified Parties and no agreed order, consent judgment, admission of fault, or the like is entered to the prejudice of the Indemnifying PartyIndemnified Parties. Upon such notification, Notwithstanding the Indemnifying Party shall election of the Indemnitor to assume the defense and investigation of such action if it is a claim brought by a third party, and, if and after such assumptionclaim, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party Parties shall have the right to retain its own counsel, but employ separate counsel and participate in the fees defense and expenses investigation of such counsel shall be claim at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmenttheir sole cost.

Indemnification Procedures. Each person entitled to indemnification Promptly after receipt by an indemnified party under this Section 5 (an “Indemnified Party”5(5) shall give of notice as promptly as reasonably practicable of the commencement of any action, such indemnified party will, if a claim in respect thereof is to each be made against any indemnifying party required to provide indemnification under this Section 5 of any action commenced against or by it 5(5), notify the indemnifying party in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position writing of the Indemnifying Party. Upon such notification, commencement thereof and the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party indemnifying party shall have the right to retain its own counselparticipate in, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed and, to the contraryextent the indemnifying party so desires, or (B) jointly with any other indemnifying party similarly given notice to assume the named parties defense thereof with counsel mutually satisfactory to the parties; provided, however, that if the defendants in any such action (including any impleaded parties) include both the Indemnifying Party indemnified party and the Indemnified Party indemnifying party and representation the indemnified party shall have reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available to the indemnifying party, or if the interests of both parties the indemnified party may reasonably be deemed to conflict with the interests of the indemnifying party, the indemnified party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the expense and fees of such separate counsel and other expenses relating to such participation to be reimbursed by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themindemnifying party as incurred. The Indemnifying Party failure to notify an indemnifying party promptly of the commencement of any such action, if prejudicial to his ability to defend such action, shall not be liable for any settlement relieve such indemnifying party of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Partyliability to the indemnified party under this Section 5(5), but if settled such liability shall be reduced in accordance with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason extent of such settlement or judgmentprejudice.

Indemnification Procedures. Each person entitled A party (the "indemnitee") which intends to claim indemnification under this Section 5 Article 11 shall promptly notify the other party (an “Indemnified Party”the "Indemnitor") shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 in writing of any action commenced against action, claim or by it other matter in respect of which indemnity may be sought hereunderthe Indemnitee or any of its directors, but officers, employees or agents intend to claim such indemnification; provided, however, the failure to so notify an Indemnifying Party provide such notice within a reasonable period of time shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced relieve the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement Indemnitor of any expenses incurred of its obligations hereunder except to the extent the Indemnitor is prejudiced by it in connection with such action except as described belowfailure. In The Indemnitee shall permit, and shall cause its directors, officers, employees and agents to permit the Indemnitor, at its discretion, to settle any such action, claim or other matter. The Indemnitee agrees to the complete control of such defense or settlement by the Indemnitor, provided, however, such settlement does not adversely affect the Indemnitee's right hereunder, admit liability by Indemnitee or impose any Indemnified Party obligations on the Indemnitee. No such action, claim or other matter shall be settled without the prior written consent of the Indemnitor, and the Indemnitor shall not be responsible for any attorney's fees or other costs incurred other than provided herein. The Indemnitee and its directors, officers, employees and agents shall co-operate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or other matter covered by this indemnification. The Indemnitee shall have the right right, but not the obligation, to retain be represented by counsel of its own counsel, but the fees selection and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentown expense.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (Promptly after receipt by an “Indemnified Party”) shall give indemnified party of a notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against claim or by it the commencement of any action, such indemnified party shall: (a) notify the indemnifying party in respect writing of which indemnity may be sought hereunderany such claim; (b) provide the indemnifying party with reasonable assistance to settle or defend such claim, but at the indemnifying party’s own expense; and (c) grant to the indemnifying party the right to control the defense and/or settlement of such claim, at the indemnifying party’s own expense; provided, however, that: (i) the failure to so notify an Indemnifying Party notify, provide assistance and grant authority and control shall only relieve the indemnifying party of its obligation to the indemnified party to the extent that the indemnifying party is prejudiced thereby; (ii) the indemnifying party shall not, without the indemnified party’s consent (such consent not release such Indemnifying Party from to be unreasonably withheld or delayed), agree to any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless settlement that: (A) makes any admission on behalf of the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, indemnified party; or (B) consents to any injunction against the named parties in any such action indemnified party (including any impleaded parties) include both except an injunction relating solely to the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement indemnified party’s continued use of any infringing Product or Gogo Materials); and (iii) the indemnified party shall have the right, at its expense, to monitor any legal proceeding effected without through legal counsel of its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party)choosing, but if settled with such consent or if there be final judgment for shall have no right to settle a claim without the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentindemnifying party’s written consent.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 Promptly after receipt by any indemnified party (an “Indemnified PartyIndemnitee”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against Claim or by it the commencement of any action, such Indemnitee shall (a) notify the indemnifying party (“Indemnitor”) in respect writing of which indemnity may be sought hereunderany such claim (including a copy of any related complaint, but summons, notice or other instrument); (b) provide the Indemnitor with reasonable assistance to settle or defend such claim, at the Indemnitor’s own expense; and (c) grant to the Indemnitor the right to control the defense and/or settlement of such Claim, at the Indemnitor’s expense; provided however that (i) the failure to so notify an Indemnifying Party notify, provide assistance and grant authority and control shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced relieve the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement Indemnitor of any expenses incurred of its obligations hereunder except to the extent the Indemnitor is prejudiced by it in connection with such action except as described below. In any such actionfailure, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Aii) the Indemnifying Party and Indemnitor shall not, without the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written Indemnitee’s consent (which shall such consent not to be unreasonably withheld or delayed by such Indemnifying Partydelayed), agree to any settlement which (1) makes any admission on behalf of the Indemnitee; or (2) consents to any injunction against the Indemnitee (except an injunction relating solely to the Indemnitee’s continued use of any infringing intellectual property), and (iii) the Indemnitee shall have the right, at its expense, to participate in any legal proceeding to contest and defend a Claim and be represented by legal counsel of its choosing, but if settled with such consent or if there be final judgment for shall have no right to settle a claim without the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentIndemnitor’s written consent.

Indemnification Procedures. Each person entitled to indemnification Promptly after receipt by an indemnified party under this Section 5 (an “Indemnified Party”) shall give 6 of notice as promptly as reasonably practicable of the commencement of any action, such indemnified party will, if a claim in respect thereof is to each be made against the indemnifying party required to provide indemnification under this Section 5 of any action commenced against or by it 6, notify the indemnifying party in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position writing of the Indemnifying Party. Upon such notification, commencement thereof; but the Indemnifying Party shall assume failure so to notify the defense indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action if it is a claim brought and such failure results in the forfeiture by a third partythe indemnifying party of substantial rights and defenses and (ii) will not, andin any event, if and after such assumption, relieve the Indemnifying Party indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall not be entitled to reimbursement appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any expenses incurred by it action for which indemnification is sought (in connection with such action except as described below. In any such action, any Indemnified Party which case the indemnifying party shall have the right to retain its own counsel, but not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed reasonably satisfactory to the contrary, or (B) indemnified party. Notwithstanding the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.indemnifying party’s election

Indemnification Procedures. Each person entitled to indemnification (a) Promptly after discovery or receipt of notice by an Indemnified Buyer or the Company or the Principal Shareholder (in each case an “INDEMNIFIED PERSON”) under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 8 of any action commenced against or by it in respect of a claim for which indemnity may be sought hereundersought, such Indemnified Person will, if a claim is to be made against an indemnifying party, give notice to the indemnifying party of the commencement of such claim, but the failure to so notify an Indemnifying Party shall the indemnifying party will not release such Indemnifying Party from relieve the indemnifying party of any liability that it may havehave to any Indemnified Person, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced except to the position of extent that the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume indemnifying party demonstrates that the defense of such action if is prejudiced by the Indemnified Person’s failure to give such notice. (b) If any proceeding referred to in Section 8 is brought against an Indemnified Person and it is a claim brought by a third party, and, if and after gives notice to the indemnifying party of the commencement of such assumptionproceeding, the Indemnifying Party indemnifying party will pay the costs of defending such proceeding including costs of counsel selected by the Indemnified Person, which counsel shall not be reasonably satisfactory to the indemnifying party. The Indemnified Person shall control the defense and settlement of the proceeding provided that the Indemnified Person shall consult with the indemnifying party. The indemnifying party will, unless the claim involves Taxes, be entitled to reimbursement of any expenses incurred by it participate in connection with such action except as described below. In any proceeding unless the indemnifying party is also or could become a party to such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party proceeding and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties Person determines in any good faith that such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel participation would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentinappropriate.

Indemnification Procedures. Each person Party entitled to indemnification under this Section 5 1.6 (an the “Indemnified Party”) shall will give notice as promptly as reasonably practicable to each party the Party required to provide indemnification under this Section 5 (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any action commenced against or by it in respect of claim as to which indemnity may be sought hereundersought, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, and will permit the Indemnifying Party shall to assume the defense of such action if it is a claim brought or any litigation resulting from such claim, provided that counsel for the Indemnifying Party, who will conduct the defense of such claim or any litigation resulting from such claim, will be approved by a third partythe Indemnified Party (whose approval will not be unreasonably withheld), andand the Indemnified Party may participate in such defense at such Indemnified Party’s expense. Notwithstanding the foregoing, if and after such assumption, any Indemnified Party’s failure to give notice as provided in this Section 1.6(c) will not relieve the Indemnifying Party shall of the Indemnifying Party’s obligations under this Section 1.6 to the extent such failure is not be entitled to reimbursement prejudicial. No Indemnifying Party, in the defense of any expenses incurred by it in connection such claim or litigation, will, except with such action except the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses an unconditional term of such counsel shall be at judgment or such settlement the expense claimant’s or plaintiff’s release of such Indemnified Party unless (A) from all liability in respect to such claim or litigation. Each Indemnified Party will furnish such information regarding such Indemnified Party or the claim in question as an Indemnifying Party may reasonably request in writing and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties as will be reasonably required in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled connection with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason defense of such settlement or judgmentclaim and litigation resulting from such claim.

Indemnification Procedures. Each person Promptly after receipt by an indemnified party under this Article 4 of notice of the commencement of any action (including any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 5 (an “Indemnified Party”) shall Article 4, give the indemnifying party notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Partycommencement thereof. Upon The indemnifying party shall have the right to participate in such notificationaction and, to the Indemnifying Party shall extent the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to assume the defense of such action if it is a claim brought thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party one (1) counsel) shall have the right to retain its own one (1) separate counsel, but with the fees and expenses to be paid by the indemnifying party, if representation of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties indemnified party by the same counsel would retained by the indemnifying party would, in the reasonable opinion of counsel, be inappropriate due to actual or potential differing or conflicting interests between themsuch indemnified party and any other party represented by such counsel in such action. The Indemnifying Party shall not be liable for any settlement failure to give notice to the indemnifying party within a reasonable time of the commencement of any proceeding effected without its written consent (which such action shall relieve such indemnifying party of any liability to the indemnified party under this Article 4, to the extent that such failure materially prejudices the indemnifying party’s ability to defend such action. The failure to give notice to the indemnifying party will not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against relieve it of any loss, damage or liability by reason of such settlement or judgmentthat it may have to any indemnified party otherwise than under this Article 4.

Indemnification Procedures. Each person entitled A Party who desires to exercise its rights to indemnification under this Section 5 Agreement (an “Indemnified PartyIndemnitee”) shall give notice as promptly as reasonably practicable to each party required notify the other Party who is obligated under this Agreement to provide such indemnification under this Section 5 (an “Indemnitor”) of any action commenced against Loss or by it in respect claim for Loss or other matter for which indemnification is sought and shall deliver to the Indemnitor copies of which indemnity process and pleadings or other document making a claim, and shall otherwise provide such cooperation as may be sought hereunderreasonably requested by the Indemnitor (however, but a failure to so notify an Indemnifying Party provide any such notification or cooperation shall not release affect any rights to indemnification except to the extent that the Indemnitor has been prejudiced thereby). Within five (5) Days after receipt of such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notificationnotice, the Indemnifying Party Indemnitor shall assume undertake the defense of each such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties that has been approved by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (Indemnitee, which approval shall not be unreasonably withheld or delayed delayed. If the Indemnitor undertakes the defense of a claim in the manner required by this Clause 13.3, the Indemnitee nonetheless may also, at its own expense, engage separate counsel and participate in the defense of any claim brought against it. If the Indemnitor fails to undertake and sustain the defense of any claim in the manner required by this Clause 13.3, the Indemnitee may engage separate counsel, pay, settle or otherwise finally resolve such Indemnifying Party), but if settled with such consent or if there be final judgment claim for the plaintiffaccount and at the risk and expense of the Indemnitor; provided, the Indemnifying Party shall indemnify the Indemnified Party from and against however, that any losspayment, damage or liability by reason of such settlement or final resolution otherwise received by the Indemnitee shall to the extent so received release the Indemnitor from liability for such claim. Notwithstanding anything herein to the contrary, no settlement or consent to any judgment, award or decree may be made that (i) does not unconditionally release the Indemnitee of all liability, or (ii) require the Indemnitee to make an admission of fault, in each case, without the Indemnitor’s prior written consent.

Indemnification Procedures. Each person entitled to Whenever any claim shall arise for indemnification under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying the Indemnified Party shall not release promptly provide written notice of such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of claim to the Indemnifying Party. Upon such notificationSuch notice by the Indemnified Party shall: (a) describe the claim in reasonable detail; (b) include copies of material written evidence thereof; and (c) indicate the estimated amount, according to the actual condition or other reasonable factors, of the Loss that has been or may be sustained by the Indemnified Party. In connection with any claim to the Indemnified Party under Section 6.02 and Section 6.03, giving rise to indemnity hereunder resulting from or arising out of any Action by a Person who is not a party to this Agreement, the Indemnifying Party shall Party, at its sole cost and expense and upon written notice to the Indemnified Party, may assume the defense of any such action if it is a claim brought by a third partyAction with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such Action, andwith its counsel and at its own cost and expense, if and after such assumption, subject to the Indemnifying Party's right to control the defense thereof. If the Indemnifying Party does not assume the defense of any such Action, the Indemnified Party may, but shall not be entitled obligated to, defend against such Action in such manner as it may deem appropriate, including settling such Action, after giving notice of it to reimbursement the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any expenses incurred by it damages resulting therefrom. Seller and Buyers shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including: (i) making available (subject to the provisions of Section 5.01) records relating to such action except claim; and (ii) furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as described below. In any such action, any Indemnified Party shall have may be reasonably necessary for the right to retain its own counsel, but preparation of the fees and expenses defense of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentclaim.

Indemnification Procedures. Each person entitled to An indemnifying Party’s indemnification obligations under this Section 5 9 are subject to the indemnified Party’s compliance with the following procedures: (an “Indemnified i) the indemnified Party must provide the indemnifying Party with prompt written notice of such claim or action, provided, however, that the indemnifying Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification ’s obligations under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement relieved if the indemnified Party does not give the indemnifying Party such prompt notice of any expenses incurred by it in connection with such action liability, cost, damage, claim or allegation except as described below. In any to the extent such action, any Indemnified failure materially prejudices the indemnifying Party; (ii) the indemnifying Party shall have the right to retain its own counselcontrol the defense and negotiation of all claims or allegations; provided, but however, that the fees and expenses indemnifying Party may not settle any claim or allegation without the consent of the indemnified Party if such counsel shall be at settlement admits liability on the expense part of such Indemnified the indemnified Party unless (A) or imposes any liability or obligation upon the Indemnifying Party and indemnified Party, in each instance without the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed by such Indemnifying Partydelayed), but if settled ; and (iii) all indemnified Parties shall cooperate fully with the indemnifying Party in connection with such consent claim, demand, cause of action, debt, liability, allegation or if there be final judgment for suit at the plaintiffindemnifying Party’s expense. The indemnified Party may, at its expense, retain counsel to participate in the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason defense of such settlement or judgmentclaim.

Indemnification Procedures. Each person entitled to 16.7.1 All claims for indemnification under this Agreement shall be asserted and resolved pursuant to this Section 5 (an 16.7. Any person claiming indemnification hereunder is hereinafter referred to as the “Indemnified Party” and any person against whom such claims are asserted hereunder is hereinafter referred to as the “Indemnifying Party.”) shall give notice as promptly as reasonably practicable 16.7.2 In the event that a Party wishes to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which assert a claim for indemnity may be sought hereunder, but failure to so notify an Indemnifying such Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, with reasonable promptness provide to the Indemnifying Party shall assume a written notice of the defense indemnity claim it wishes to assert on behalf of such action if it itself or another Indemnified Party, including the specific details of and specific basis under this Agreement for its indemnity claim (a “Claim Notice”). To the extent any Losses for which indemnification is a claim brought sought are asserted against or sought to be collected from an Indemnified Party by a third party, and, if and after such assumption, Claim Notice shall include a copy of all papers served on the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any applicable Indemnified Party shall have the right to retain its own counsel, but the fees with (i) entails a full and expenses unconditional release of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to (and any other members of the contraryIndemnified Party’s group, i.e., all Seller Indemnified Parties or all Buyer Indemnified Parties) without any admission or finding of fault or liability and (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and does not impose on the Indemnified Party and representation of both parties any material non-financial obligation or any financial obligation that is not fully paid by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (Promptly after receipt by an “Indemnified Party”) shall give indemnified party of notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of the commencement of any action commenced involving a claim referred to in the preceding Section 7(a) or (b), such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the indemnifying party of the commencement of such action. In case any such action is brought against an indemnified party, the indemnifying party will be entitled to participate in and to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, and provided that the indemnifying party in fact assumes such defense, the indemnifying party will not be liable to such indemnified party for any legal or other expenses incurred after the date of such notice by it the latter in connection with the defense thereof. Whether or not such defense is assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its consent. No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party such claim or litigation. The indemnified party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection participate with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be (at the expense indemnified party's own expense) if reasonably necessary to avoid a conflict of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentinterest.

Indemnification Procedures. Each person Promptly after receipt by an indemnified party under this Article 4 of notice of the commencement of any action (including any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 5 (an “Indemnified Party”) shall Article 4 give the indemnifying party notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Partycommencement thereof. Upon The indemnifying party shall have the right to participate in such notificationaction and, to the Indemnifying Party shall extent the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to assume the defense of such action if it is a claim brought thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party one (1) counsel) shall have the right to retain its own one (1) separate counsel, but with the fees and expenses to be paid by the indemnifying party, if representation of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties indemnified party by the same counsel would retained by the indemnifying party would, in the reasonable opinion of counsel, be inappropriate due to actual or potential differing or conflicting interests between themsuch indemnified party and any other party represented by such counsel in such action. The Indemnifying Party shall not be liable for any settlement failure to give notice to the indemnifying party within a reasonable time of the commencement of any proceeding effected without its written consent (which such action shall relieve such indemnifying party of any liability to the indemnified party under this Article 4 to the extent that such failure materially prejudices the indemnifying party’s ability to defend such action. The failure to give notice to the indemnifying party will not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against relieve it of any loss, damage or liability by reason of such settlement or judgmentthat it may have to any indemnified party otherwise than under this Article 4.

Indemnification Procedures. Each person entitled to indemnification The Party claiming indemnity under this Section 5 Article 11 (an the “Indemnified Party”) shall give written notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying the Party from any liability that it may have, otherwise than on account whom indemnity is being sought (the “Indemnifying Party”) promptly after learning of this indemnity agreement so long as such failure Claim and shall not have materially prejudiced offer control of the position defense of such Claim to the Indemnifying Party. Upon The Indemnified Party shall provide the Indemnifying Party with reasonable assistance, at the Indemnifying Party’s expense, in connection with the defense of the Claim for which indemnity is being sought. The Indemnified Party may participate in and monitor such notificationdefense with counsel of its own choosing at its sole expense; provided, however, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain assume and conduct the defense of the Claim with counsel of its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themchoice. The Indemnifying Party shall not settle any Claim without the prior written consent of the Indemnified Party, not to be liable for unreasonably withheld, unless the settlement involves only the payment of money. So long as the Indemnifying Party is actively defending the Claim in good faith, the Indemnified Party shall not settle or compromise any such Claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, (a) the Indemnified Party may defend against, consent to the entry of any judgment, or enter into any settlement of with respect to such Claim in any proceeding effected without its written manner the Indemnified Party may deem reasonably appropriate, and the Indemnified Party need not consult with, or obtain any consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintifffrom, the Indemnifying Party in connection therewith, and (b) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party from and against as provided in this Article 11. Notwithstanding anything contained in the foregoing to the contrary, the provisions of Section 9.4 shall govern the defense of any lossInfringement Actions. Additionally, damage or liability by reason of KVK shall not be obligated to indemnify KemPharm for any Claims related to such settlement or judgmentInfringement Action.

Indemnification Procedures. Each person entitled to indemnification (a) Promptly after discovery or receipt of notice by an indemnified party under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 9 of any action commenced against or by it in respect of a claim for which indemnity may be sought hereundersought, such indemnified party will, if a claim is to be made against an indemnifying party, give notice to the indemnifying party of the commencement of such claim, but the failure to so notify an Indemnifying Party shall the indemnifying party will not release such Indemnifying Party from relieve the indemnifying party of any liability that it may havehave to any indemnified party, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced except to the position of extent that the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume indemnifying party demonstrates that the defense of such action if is prejudiced by the indemnifying party's failure to give such notice. (b) If any proceeding referred to in Section 9 is brought against an indemnified party and it is a claim brought gives notice to the indemnifying party of the commencement of such proceeding, the indemnifying party will pay the costs of defending such proceeding including costs of counsel selected by a third the indemnified party, andwhich counsel shall be reasonably satisfactory to the indemnifying party. The indemnified party shall control the defense and settlement of the proceeding provided that the indemnified party shall consult with the indemnifying party. The 41 indemnifying party will, if and after such assumptionunless the claim involves Taxes, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it participate in connection with such action except as described below. In any proceeding unless the indemnifying party is also or could become a party to such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party proceeding and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties indemnified party determines in any good faith that such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel participation would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentinappropriate.

Indemnification Procedures. Each person entitled to indemnification Promptly after receipt by an indemnified party under this Section 5 (an “Indemnified Party”) shall give Appendix A of notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of the commencement of any action commenced against or by it (including any governmental action), such indemnified party will, if a claim in respect of which indemnity may thereof is to be sought hereundermade against any indemnifying party under this Appendix A, but failure deliver to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position indemnifying party a written notice of the Indemnifying Party. Upon such notification, commencement thereof and the Indemnifying Party indemnifying party shall assume have the defense of such action if it is a claim brought by a third partyright to participate in, and, if and after such assumptionto the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense, in either case with counsel mutually satisfactory to the parties, the Indemnifying Party shall not fees and expenses of which will be entitled to reimbursement of any expenses incurred paid by it in connection with such action except as described below. In any such actionthe indemnifying party; provided, any Indemnified Party however, that an indemnified party shall have the right to retain its own counsel, but with the fees and expenses of such counsel shall to be at paid by the expense of such Indemnified Party unless indemnifying party, if (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed indemnified party fails to the contraryassume or participate in such defense, or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties such indemnified party by the same counsel retained by the indemnifying party would be inappropriate due to actual or potential differing or conflicting interests between themsuch indemnified party and any other party represented by such counsel in such proceeding. The Indemnifying Party shall not be liable for any settlement failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any proceeding effected without such action, if materially prejudicial to its written consent (which ability to defend such action, shall not be unreasonably withheld or delayed by relieve such Indemnifying Party)indemnifying party of any liability to the indemnified party under this agreement, but if settled with such consent or if there be final judgment for the plaintiff, omission so to deliver written notice to the Indemnifying Party shall indemnify the Indemnified Party from and against indemnifying party will not relieve it of any loss, damage or liability by reason of such settlement or judgment.that it may have to any indemnified party otherwise than under this Appendix A. (iv)

Indemnification Procedures. Each person entitled If a party or any its Affiliates or their respective officers, directors, employees, agents, licensors and representatives (collectively, the "Indemnitee") intends to claim indemnification under this Section 5 Article 12, the Indemnitee shall notify the other party (an “Indemnified Party”the "Indemnitor") shall give notice as in writing promptly as reasonably practicable to each party required to provide indemnification under this Section 5 upon becoming aware of any action commenced against or by it in respect of which indemnity Claim that may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party Indemnification Claim The Indemnitor shall have the right to retain assume and control the defense of the Indemnification Claim at its own counselexpense. If the right to assume and have sole control of the defense is exercised by the Indemnitor, the Indemnitee shall have the right to participate in, but not control, such defense at its own expense and the Indemnitor's indemnity obligations shall not include any attorneys, fees and litigation expenses incurred by the Indemnitee after the assumption of such counsel the defense by the Indemnitor. If the Indemnitor does not assume the defense of the Indemnification Claim, the Indemnitee may defend the Indemnification Claim but shall be at have no obligation to do so. The Indemnitee will not settle or compromise the expense Indemnification Claim without the prior written consent of such Indemnified Party unless (A) the Indemnifying Party Indemnitor, and the Indemnified Party shall have mutually agreed to Indemnitor will not settle or compromise the contrary, or (B) the named parties Indemnification Claim in any such action (including any impleaded parties) include both manner which would have an adverse effect on the Indemnifying Party and Indemnitee's rights under this Agreement or the Indemnified Party and representation scope or enforceability of both parties by the same counsel would be inappropriate due to actual BMS Patents Rights or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected BMS Know-How, without its the prior written consent (of the Indemnitee, which shall consent, in each case, will not be unreasonably withheld or delayed by such Indemnifying Party), but if settled withheld. The Indemnitee shall reasonably cooperate with such consent or if there be final judgment for the plaintiff, Indemnitor at the Indemnifying Party shall indemnify Indemnitor's expense and will make available to the Indemnified Party from and against any loss, damage or liability by reason Indemnitor all pertinent information under the control of such settlement or judgmentthe Indemnitee.

Indemnification Procedures. Each person entitled A party (the "Indemnitee") that -------------------------- intends to claim indemnification under this Section 5 Article 13 shall promptly notify the other party (an “Indemnified Party”the "Indemnitor") shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 in writing of any action commenced against or by it claim in respect of which the Indemnitee or any of its directors, officers, employees, agents, licensors, successors, or assigns intends to claim such indemnification, and the Indemnitor shall have sole control of the defense and/or settlement thereof, provided that the indemnified party may participate in any such proceeding with counsel of its choice at its own expense. The indemnity may agreement in this Article 13 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the consent of the Indemnitor, which consent shall not be sought hereunderwithheld unreasonably. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such Indemnitor of any liability to the Indemnitee under this Article 13, but failure the omission to so notify an Indemnifying Party deliver written notice to the Indemnitor shall not release such Indemnifying Party from relieve the Indemnitor of any liability that it may haveotherwise have to any Indemnitee than under this Article 13. The Indemnitee under this Article 13, otherwise than on account of this indemnity agreement so long as such failure its employees and agents, shall not have materially prejudiced cooperate fully with the position of Indemnitor and its legal representatives and provide reasonable information in the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement investigation of any expenses incurred Claim covered by it in connection with such action except as described belowthis indemnification. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed Notwithstanding anything to the contrarycontrary contained in this Article 13, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party neither party shall not be liable for any settlement of any proceeding effected costs or expenses incurred without its prior written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentauthorization.

Indemnification Procedures. Each person Person entitled to indemnification under this Section 5 (an “Indemnified Party”"INDEMNIFIED PARTY") shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 (an "Indemnifying Party") of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release relieve such Indemnifying Party from any liability that it may have, have otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, assumption the Indemnifying Indemnified Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to indemnification The Party claiming indemnity under this Section 5 Article 9 (an the “Indemnified Party”) shall give written notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying the Party from any liability that it may have, otherwise than on account whom indemnity is being sought (the “Indemnifying Party”) promptly after learning of this indemnity agreement so long as such failure Claim and shall not have materially prejudiced offer control of the position defense of such Claim to the Indemnifying Party. Upon such notification, The Indemnified Party shall provide the Indemnifying Party shall assume with reasonable assistance, at the Indemnifying Party’s expense, in connection with the defense of the Claim for which indemnity is being sought. The Indemnified Party may participate in and monitor such action if it is a claim brought by a third partydefense with counsel of its own choosing at its sole expense; provided, andhowever, if and after such assumption, that the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counselassume and [ * ] = Certain confidential information contained in this document, but marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. conduct the fees and expenses defense of such Claim with counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themits choice. The Indemnifying Party shall not settle any Claim without the prior written consent of the Indemnified Party, not to be liable for unreasonably withheld, unless the settlement involves only the payment of money. So long as the Indemnifying Party is actively defending the Claim in good faith, the Indemnified Party shall not settle or compromise any such Claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, (a) the Indemnified Party may defend against, consent to the entry of any judgment, or enter into any settlement of with respect to such Claim in any proceeding effected without its written manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintifffrom, the Indemnifying Party in connection therewith), and (b) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentas provided in this Article 9.

Indemnification Procedures. Each person Person entitled to indemnification under this Section 5 (an “"Indemnified Party”") shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 (an "Indemnifying Party") of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release relieve such Indemnifying Party from any liability that it may have, have otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, assumption the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, contrary or (Bii) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.

Indemnification Procedures. Each person entitled to indemnification Promptly after receipt by an indemnified party under this Section 5 (an “Indemnified Party”) shall give 6.1 above of notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of the commencement of any action commenced against or by it (including any governmental action), such indemnified party shall, if a Claim in respect of which indemnity may thereof is to be sought hereundermade against any indemnifying party under Section 6.1 above, but failure deliver to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position indemnifying party a written notice of the Indemnifying Party. Upon such notification, commencement thereof and the Indemnifying Party indemnifying party shall assume have the defense of such action if it is a claim brought by a third partyright to participate in, and, if to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying parties and after such assumptionthe indemnified party, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such actionprovided however, any Indemnified Party that an indemnified party shall have the right to retain its own counsel, but with the fees and expenses to be paid by the indemnifying party, if, in the reasonable written opinion of counsel retained by the indemnifying party, the representation by such counsel shall be at of the expense of such Indemnified Party unless (A) the Indemnifying Party indemnified party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel indemnifying party would be inappropriate due to actual or potential differing or conflicting interests between themsuch indemnified party or other party represented by such counsel in such proceeding. The Indemnifying Party failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not be liable for any settlement relieve such indemnifying party of any proceeding effected without liability to the indemnified party under Section 6.1 above, except to the extent that the indemnifying party is prejudiced in its written consent (which ability to defend such action. The indemnification required by Section 6.1 above shall not be unreasonably withheld made by periodic payments of the amount thereof during the course of the investigation or delayed by defense, as such Indemnifying Party)expense, but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentis incurred and is due and payable.

Indemnification Procedures. Each All indemnification obligations in this Agreement are conditioned upon the party seeking indemnification: (A) promptly notifying the indemnifying party of any claim or liability of which the party seeking indemnification becomes aware (including a copy of any related complaint, summons, notice or other instrument); provided, however, that failure to provide such notice within a reasonable period of time shall not relieve the indemnifying party of any of its obligations hereunder except to the extent the indemnifying party is prejudiced by such failure; and (B) reasonably cooperating with the indemnifying party in the defense of any such claim or liability (at the indemnifying party's expense). The indemnifying party may, in its sole discretion, assume and conduct the legal defense of the indemnified person entitled to indemnification in, and the settlement of, any suit that could result in claims under this Section 5 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each 13.3; provided, however , that the indemnifying party required to provide indemnification under this Section 5 will not, in defense of any action commenced against such suit, except with the consent of the indemnified person, consent to the entry of any judgment or enter into any settlement which does not include, as an unconditional term thereof, the giving by it the claimant or plaintiff to the indemnified person of a release from all liability in respect thereof. If the indemnifying party assumes the defense and settlement of which indemnity a suit, the indemnified person may be sought hereunderelect to participate in, but failure to so notify an Indemnifying Party shall not release control, such Indemnifying Party from any liability that it may have, otherwise than on account defense and settlement through counsel of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if its choosing and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain at its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentexpense.

Indemnification Procedures. Each person entitled to A Party seeking indemnification under this Section 5 13.1 or 13.2 hereof (an the “Indemnified Indemnitee”) shall promptly notify the other Party (the “Indemnitor”) in writing of any claim, lawsuit or other action in respect of which the Indemnitee, its Affiliates, or any of their respective directors, officers, employees and agents intend to claim such indemnification. The Indemnitee shall permit, and shall cause its Affiliates and their respective directors, officers, employees and agents to permit the Indemnitor to have complete control of such defense (except as set forth below) so long as it promptly assumes the defense and prosecutes the defense with appropriate diligence and care. The Party controlling the defense hereunder (the “Defending Party”) shall give notice as promptly as reasonably practicable have the authority, at its discretion, to each party required to provide indemnification under this Section 5 settle any such claim, lawsuit or other action only with the prior written consent of any action commenced against or by it in respect of which indemnity may be sought hereunderthe Party who is not controlling the defense (the “Non-Defending Party”); provided, but failure to so notify an Indemnifying Party however, that such consent shall not release such Indemnifying Party from any liability that it may havebe unreasonably withheld, otherwise than on account of this indemnity agreement delayed or conditioned so long as such failure settlement does not adversely affect the Non- Defending Party’s rights hereunder or impose any obligations on the Non-Defending Party in‌ addition to those set forth herein. The Defending Party and the Non- Defending Party, and their respective Affiliates, and their respective directors, officers, employees and agents shall not have materially prejudiced cooperate fully with each other and their respective legal representatives in the position investigation and defense of any claim, lawsuit or other action covered by this indemnification. The Defending Party shall keep the Non-Defending Party reasonably informed of the Indemnifying progress of the action and shall consider the comments and observations of the Non-Defending Party timely given in the course of the proceedings. If the Indemnitor is the Defending Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party Indemnitee shall have the right right, but not the obligation, to retain be represented by counsel of its own counselselection and expense. Notwithstanding the foregoing, but the fees and expenses of such Indemnitee may be represented by separate counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party Indemnitor if a conflict of interest exists between the interests of the Indemnitor and Indemnitee so that a single counsel representing Indemnitor cannot adequately defend the Indemnified Party shall have mutually agreed to rights of the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgment.Indemnitee.‌

Indemnification Procedures. Each person In the event, the ▇▇▇▇▇▇▇ Entities are entitled to indemnification under this Section 5 (an “Indemnified Party”) indemnification, it shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 the Company of the commencement of any action commenced against action, suit, proceeding or by it investigation or threat thereof made in writing in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Company Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, assumption the Indemnifying Party ▇▇▇▇▇▇▇ Entities shall not be entitled to reimbursement of any legal expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified the ▇▇▇▇▇▇▇ Entities Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the ▇▇▇▇▇▇▇ Entities unless: (Aa) the Indemnifying Party ▇▇▇▇▇▇▇ Entities and the Indemnified Party Company shall have mutually agreed in writing to the contrary, or (Bb) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party Company and ▇▇▇▇▇▇▇ and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party Company if it is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel in any one jurisdiction for all parties indemnified by the Company with respect to such claim, unless in the reasonable judgment of the Company an actual conflict of interest may exist with respect to such claim, in which event the ▇▇▇▇▇▇▇ Entities shall be obligated to pay the fees and expenses of such additional counsel or counsels. The Company shall not be liable for any settlement closing of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party Company shall indemnify the Indemnified Party ▇▇▇▇▇▇▇ Entities from and against any loss, damage or liability by reason of such settlement or judgmentLosses.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “Indemnified Party”) shall give Upon receiving notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or Third Party Claim covered by it in respect of which indemnity may be sought hereunderSection 10.1, but failure to so the Indemnified Party will notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall promptly; provided, however, that the right of indemnification hereunder will not be adversely affected by a failure to give such notice, unless and only to the extent that the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party may assume control of the defense of any such action if it is a claim brought by a third party, andclaim, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Aa) the Indemnifying Party and acknowledges its obligation to indemnify the Indemnified Party shall have mutually agreed to the contraryfor any losses resulting from such claim, or and (Bb) the named parties in claim does not seek to impose any such action (including any impleaded parties) include both the Indemnifying Party and liability on the Indemnified Party other than money damages; provided, however, that the Indemnified Party may, at its own cost and representation expense, participate through its attorneys or otherwise, in such investigation, trial and defense of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themsuch claim and any appeal arising therefrom. The Indemnifying Party shall will not be liable for settle any settlement of any proceeding effected such claim without its the Indemnified Party’s prior written consent (which shall consent will not be unreasonably withheld or delayed by such Indemnifying Partydelayed), but if settled with unless such consent or if there be final judgment settlement is solely for monetary damages for which the plaintiff, Indemnified Party is fully indemnified under this Agreement. If the Indemnifying Party shall indemnify does not assume full control over the defense of a claim pursuant to this Section 10.2, then the Indemnifying Party may participate in such investigation, defense or trial, solely at its cost and expense, and the Indemnified Party from will have the right to defend or settle such claim in such manner as the Indemnified Party deems appropriate, solely at the cost and against any loss, damage or liability by reason expense of such settlement or judgmentthe Indemnifying Party.

Indemnification Procedures. Each person Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification under this Section 5 (an the “Indemnified Party”) shall give promptly provide written notice as promptly as reasonably practicable of such claim to each the other party required (the “Indemnifying Party”). In connection with any claim giving rise to provide indemnification under this Section 5 indemnity hereunder resulting from or arising out of any action commenced against or Action by it in respect of which indemnity may be sought hereundera Person who is not a party to this Agreement, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, at its sole cost and expense and upon written notice to the Indemnifying Party shall Indemnified Party, may assume the defense of any such action if it is a claim brought by a third partyAction with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such Action, and, if with its counsel and after such assumption, at its own cost and expense. If the Indemnifying Party does not assume the defense of any such Action, the Indemnified Party may, but shall not be entitled obligated to, defend against such Action in such manner as it may deem appropriate, including settling such Action, after giving notice of it to reimbursement of any expenses incurred the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by it the Indemnified Party in connection accordance with such action except as described below. In any such action, any Indemnified Party defense and settlement shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) relieve the Indemnifying Party and the Indemnified Party shall have mutually agreed of its indemnification obligations herein provided with respect to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themdamages resulting therefrom. The Indemnifying Party shall not be liable for settle any settlement of any proceeding effected Action without its the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed by such Indemnifying Partydelayed). Each Sellers’ obligations to indemnify, but if settled with such consent or if there contribute, defend and otherwise shall be final judgment joint and several. Notwithstanding anything in this Agreement to the contrary, any Losses for the plaintiff, the Indemnifying Party which B▇▇▇▇ is entitled to indemnification shall indemnify the Indemnified Party be applied in reduction of amounts due from and against Buyer to any loss, damage or liability by reason of such settlement or judgmentSeller under this Agreement.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “The Indemnified Party”) Party shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 notify the Indemnifying Party in writing of any action commenced against suits, claims or demands covered by it in respect these indemnities promptly after becoming aware of which indemnity may be sought hereundersuch suits, but failure to so notify an Indemnifying Party shall not release claims or demands. Promptly after receipt of such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notificationnotice, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party shall not be entitled fails, within a reasonable time after receipt of such notice, to reimbursement assume the defense with counsel reasonably satisfactory to the Indemnified Party, or if, in the reasonable judgment of the Indemnified Party, a direct or indirect conflict of interest exists between the Parties with respect to the claim, or if in the reasonable judgment of the Indemnified Party the assumption and conduct of the defense by the Indemnifying Party would materially and adversely affect the Indemnified Party in any expenses incurred by it in connection with such action except as described below. In any such actionmanner or prejudice its ability to conduct a successful defense, any then the Indemnified Party shall have the right to retain undertake the defense. Notwithstanding the above, if the Indemnified Party, in its own counselsole discretion so elects, but such Party may also participate in the fees and expenses defense of such actions by employing counsel shall be at the expense of such Indemnified Party unless (A) its expense, without waiving the Indemnifying Party and the Indemnified Party shall have mutually agreed Party's obligations to the contrary, indemnify or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between themdefend. The Indemnifying Party shall not be liable for settle or compromise any settlement claim or consent to the entry of any proceeding effected judgment without its the prior written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for of the plaintiff, Indemnified Party unless the Indemnifying Party shall indemnify procures an unconditional release of all liability by each claimant or plaintiff to the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentParty.

Indemnification Procedures. Each person entitled to indemnification In the event of a potential indemnity obligation under this Section 5 8, the indemnified party will: (an “Indemnified Party”a) shall give notice as promptly as reasonably practicable to each notify the indemnifying party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position writing of the Indemnifying Party. Upon such notificationclaim, (b) allow the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have indemnifying party the right to retain its own counselcontrol the investigation, but the fees defense and expenses settlement (if applicable) of such counsel shall be claim at the expense indemnifying party’s sole cost and expense, and (c) upon request of such Indemnified Party unless (A) the Indemnifying Party and indemnifying party, provide all necessary cooperation at the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties indemnifying party’s expense. Failure by the same counsel would be inappropriate due indemnified party to actual or potential differing or conflicting interests between themnotify the indemnifying party of a claim under Section 8 shall not relieve the indemnifying party of its obligations under Section 8. The Indemnifying Party However, the indemnifying party shall not be liable for any settlement litigation expenses the indemnified party incurred before such notice was given, or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of any proceeding effected fault by the indemnified party, without its the indemnified party’s prior written consent, such consent (which shall not to be unreasonably withheld withheld, conditioned or delayed by such Indemnifying Party), but delayed. Any indemnification obligation under Section 8 will not apply if settled the indemnified party settles or makes any admission with such consent or if there be final judgment for respect to a claim without the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentindemnifying party’s prior written consent.

Indemnification Procedures. Each person entitled to If an indemnifiable claim should be made against either Party, the party seeking indemnification under this Section 5 (an “the "Indemnified Party”") shall give notice as promptly as reasonably practicable notify the other Party (the "Indemnifying Party"). If an Indemnified Party provides such notice, the Indemnified Party shall permit the Indemnifying Party to each party required control the defense, disposition or settlement of the matter at its own expense; provided that the Indemnifying Party shall not, without the consent of the Indemnified Party enter into any settlement or agree to provide any disposition that imposes an obligation on the Indemnified Party that is not wholly discharged or dischargeable by the Indemnifying Party, or imposes any conditions or obligations on the Indemnified Party other than the payment of monies that are readily measurable for purposes of determining the monetary indemnification under this Section 5 or reimbursement obligations of Indemnifying Party. The Indemnified Party shall notify Indemnifying Party promptly of any action commenced against or by it claim for which Indemnifying Party is responsible and shall cooperate with Indemnifying Party in respect every commercially reasonable way to facilitate defense of which indemnity may be sought hereunder, but any such claim; provided that the Indemnified Party's failure to so notify an Indemnifying Party shall not release such diminish Indemnifying Party's obligations under this Section except to the extent that Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have is materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense as a result of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described belowfailure. In any such action, any An Indemnified Party shall at all times have the right option to retain participate in any matter or litigation through counsel of its own counsel, but the fees selection and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentown expense.

Indemnification Procedures. Each person entitled to indemnification The Indemnified Party shall promptly notify the Licensee upon becoming aware of a Third-Party Claim under this Section 5 (an “9.2. The Licensee shall promptly assume control of the defense and investigation of such Third-Party Claim, with counsel reasonably acceptable to the Indemnified Party”) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position of the Indemnifying Party. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to reasonably cooperate with the contraryLicensee in connection therewith, in each case at the Licensee's sole cost and expense. The Indemnified Party may participate in the defense of such Third-Party Claim, with counsel of its own choosing and at its own cost and expense. The Licensee shall not settle any such Third-Party Claim on any terms or (B) the named parties in any such action (including manner that adversely affects the rights of any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its such Indemnified Party's prior written consent (which consent shall not be unreasonably withheld withheld, conditioned, or delayed by delayed). If the Licensee fails or refuses to assume control of the defense of such Indemnifying Party)Third-Party Claim, but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from has the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to the Licensee, in each case in such manner and against on such terms as the Indemnified Party may deem appropriate. Neither the Indemnified Party's failure to perform any lossobligation under this Section 9.2 nor any Indemnified Party's act or omission in the defense or settlement of any such Third-Party Claim will relieve the Licensee of its obligations under this Section 9.2, damage or liability by reason of such settlement or judgmentincluding with respect to any Losses, except to the extent that the Licensee can demonstrate that it has been materially prejudiced as a result thereof.

Indemnification Procedures. Each person entitled to indemnification under this Section 5 (an “In the event of any such Claim against any Repare Indemnified Party”, Repare shall promptly, and in any event within ten (10) shall give notice as promptly as reasonably practicable to each party required to provide indemnification under this Section 5 of any action commenced against or by it Business Days, notify BMS in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not release such Indemnifying Party from any liability that it may have, otherwise than on account of this indemnity agreement so long as such failure shall not have materially prejudiced the position writing of the Indemnifying PartyClaim. Upon such notification, the Indemnifying Party shall assume the defense of such action if it is a claim brought by a third party, and, if and after such assumption, the Indemnifying Party shall not be entitled to reimbursement of any expenses incurred by it in connection with such action except as described below. In any such action, any Indemnified Party BMS shall have the right, exercisable by notice to Repare within ten (10) Business Days after receipt of notice from Repare of the Claim, to assume direction and control of the defense, litigation, settlement, appeal or other disposition of the Claim with counsel selected by BMS and reasonably acceptable to Repare. Any failure by Repare to provide timely notice of a Claim shall not limit a Repare Indemnified Party’s right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed for indemnification hereunder except to the contraryextent such failure results in actual prejudice to BMS. The Repare Indemnified Parties shall cooperate with BMS and may, or (B) the named parties at their option and expense, be separately represented in any such action (including any impleaded parties) include both or proceeding. If and for so long as BMS controls the Indemnifying Party and defense of the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party Claim in good faith, BMS shall not be liable for any settlement of any proceeding effected litigation costs or expenses incurred by the Repare Indemnified Parties in defending such Claim without its BMS’s prior written consent (which authorization. In addition, BMS shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment responsible for the plaintiffindemnification or defense of any Damages incurred by any Repare Indemnified Party to the extent arising from any negligent or intentional misconduct by any Repare Indemnified Party or the breach by Repare of any representation, the Indemnifying obligation, covenant or warranty under this Agreement, or any Claims compromised or settled without BMS’s prior written consent. Each Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentuse reasonable efforts to mitigate Damages indemnified under this Section 13.1.

Indemnification Procedures. Each person If a Party entitled to indemnification under this Section 5 8 (an “Indemnified Party”) shall give notice as promptly as reasonably practicable wishes to each party required assert an indemnification claim against the Party subject to provide such indemnification obligation under this Section 5 8 (the “Indemnifying Party”), the Indemnified Party will deliver to the Indemnifying Party, as soon as reasonably practicable, a written notice (a “Claim Notice”) setting forth: (i) the specific subsection of any action commenced against Section 8.2 or 8.3, as applicable, upon which the Indemnified Party is basing its claim and, if applicable, the representation and warranty or covenant alleged to have been breached by it in the Indemnifying Party; (ii) a reasonably detailed description of the facts and circumstances giving rise to the claim; and (iii) a reasonably detailed description of, and a good faith estimate of the total amount of, the Damages actually incurred or expected to be incurred by the Indemnified Party with respect of which indemnity may be sought hereunderto such claim; provided, but however, that (A) the failure to so notify an deliver a Claim Notice to the Indemnifying Party shall not release such relieve the Indemnifying Party from any liability that it may havehave to the Indemnified Party, otherwise than on account of this indemnity agreement so long as except to the extent that such failure shall not have materially prejudiced the position of prejudices the Indemnifying Party. Upon such notification, ’s ability to defend the Indemnifying related Matter; and (B) the Indemnified Party shall assume the defense of such action if it is will not be permitted to deliver a claim brought by a third party, and, if Claim Notice (and after such assumption, the Indemnifying Party shall will not be entitled to reimbursement indemnification pursuant to this Section 8) with respect to breaches or inaccuracies of any expenses incurred by it in connection with a representation and warranty unless such action except as described below. In any Claim Notice is delivered before the Expiration Date or Fundamental Expiration Date applicable to such action, any Indemnified Party shall have the right to retain its own counsel, but the fees representation and expenses of such counsel shall be at the expense of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, or (B) the named parties in any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicting interests between them. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld or delayed by such Indemnifying Party), but if settled with such consent or if there be final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss, damage or liability by reason of such settlement or judgmentwarranty.