Netgear 2012 Annual Report Download - page 227

of or inaccuracy or alleged inaccuracy in Section 5.4 (Title) or Section 5.12
(Intellectual Property); (vi) the claim is made by a customer
of the AirCard Business; (vii) the claim is in respect of a Specified Matter; or (viii) the claim is in respect of the matters described in
Section 12.2(a)(v) ; provided that
the Indemnifying Party shall be entitled to participate in (but not control) the defense of such Third
Party Claim (and any and all settlement discussions related to such Third Party Claim) and to employ, at its sole expense, separate
counsel of its choice to advise the Indemnifying Party for such purpose;
(d)
if the Indemnifying Party shall control the defense of any Third Party Claim, the Indemnifying Party may not
settle or otherwise resolve such claim or cease to defend such claim without the prior written consent of the Indemnified Party (which
consent shall not be unreasonably withheld, conditioned or delayed) unless (i) prior to the Indemnifying Party entering into such
settlement or ceasing to defend such claim, the Indemnifying Party first verifies to the Indemnified Party in writing that the
Indemnifying Party shall be responsible for all liabilities and obligations relating to such Third Party Claim, (ii) such settlement or
cessation involves, with respect to the Indemnified Party, only the payment of a lump sum amount of money and the Indemnifying
Party pays such lump sum amount of money when due, and (iii) such settlement expressly and unconditionally releases the Indemnified
Party from all Liabilities with respect to such claim, with prejudice; and
(e)
in the event the Indemnified Party controls the defense of any Third Party Claim, it shall request the prior written
consent of the Indemnifying Party before entering into any settlement of such claim or ceasing to defend such claim; provided
, that the
Indemnified Party shall be entitled to settle or cease to defend such claim without the prior written consent of the Indemnifying Party,
and the failure of the Indemnifying Party to provide such prior written consent shall not impair or otherwise limit any of the
Indemnified Party’
s rights to indemnification, compensation and reimbursement hereunder. If the Indemnified Party settles any Third
Party Claim without the prior written consent of the Indemnifying Party, then neither the decision to settle nor the settlement amount
shall be conclusive evidence of, or give rise to any presumption of the commercial reasonableness of, the terms of the settlement or the
commercial reasonableness of the amount of indemnifiable Losses relating thereto, and any claim for indemnification, reimbursement
or compensation brought by the Indemnified Party against the Indemnifying Party under this Article 12
with respect to the settlement of
such Third Party Claim will be subject to the dispute resolution procedures set forth in Section 13.11 .
12.6 Tax Treatment
. All indemnity payments made pursuant to this Agreement shall be treated for all Tax purposes as
adjustments to the Adjusted Cash Purchase Price, unless otherwise required by applicable Law.
12.7 Mitigation
. Each of the Parties acknowledges that under applicable principles of common law in the State of Delaware,
a party may have a duty to mitigate damages and losses arising out of a breach of contract under certain circumstances. This Agreement
is not intended to, and does not, expand upon, or extend in any manner, any such duty or other similar obligation.
ARTICLE 13
MISCELLANEOUS
13.1 Notices
. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to
have been given: (a) when delivered personally, (b) the next Business Day, if sent by a nationally-
recognized overnight delivery service
(unless the records of the delivery service indicate otherwise), (c) three (3) Business Days after deposit in the United States mail,
certified and with proper postage prepaid, addressed as follows; or (d) upon delivery if sent by facsimile during a Business
- 76 -