Netgear 2012 Annual Report Download - page 226

detail of the Indemnifying Party’
s basis for objecting to such matter. In the event that the Indemnifying Party shall fail to object to any
matter set forth in a Claim Certificate within the foregoing thirty (30)-
day period, the Indemnifying Party shall be deemed to have
irrevocably agreed and consented to indemnify, compensate and reimburse the Indemnified Party in respect of such items of Loss
pursuant to the terms of this Agreement.
12.5 Third Party Claims
. In the event any claim, demand, complaint or Action is instituted by a third party against an
Indemnified Party which involves or appears reasonably likely to involve an Indemnification Claim hereunder (a “
Third Party Claim
”),
the Indemnified Party shall, promptly after receipt of notice of any such Third Party Claim, notify the Indemnifying Party of the
commencement thereof; provided, however,
that the failure to so notify the Indemnifying Party of the commencement of any such Third
Party Claim will relieve the Indemnifying Party from liability in connection therewith only if and to the extent that such failure caused
damages, for which the Indemnified Party is obligated, which are greater than the damages
would have been had the Indemnified Party
given the Indemnifying Party prompt notice hereunder. Upon receipt of such notice, the Indemnifying Party shall have the right, in its
sole discretion, to control the defense or settlement of such Third Party Claim by appointing a recognized and reputable counsel
acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided
that prior to the Indemnifying
Party assuming control of such defense it shall first verify to the Indemnified Party in writing that the Indemnifying Party shall be
responsible for all liabilities and obligations relating to such Third Party Claim up to the limitations set forth in Section 12.3
and subject
to such limitations. Notwithstanding the foregoing provisions of this Section 12.5 :
(a)
the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ
counsel of its choice for such purpose; provided
that the fees and expenses of such separate counsel shall be borne by the Indemnified
Party (other than any reasonable fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party
effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the Indemnifying Party, and except
that the Indemnifying Party shall pay all of the reasonable fees and expenses of such separate counsel if the Indemnified Party has been
advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified
Party);
(b) notwithstanding anything to the contrary set forth in Section 12.5(c)
, the Indemnifying Party shall control the
defense or settlement of any Third Party Claim by appointing counsel reasonably acceptable to the Indemnified Party to be the lead
counsel in connection with such defense (i) to the extent such Third Party Claim is described in Section 2.4(m)
or (ii) if such Third
Party Claim is listed on Section 2.4(o) of the Sellers Disclosure Schedule;
(c) except as provided in Section 12.5(b)
, the Indemnifying Party shall not be entitled to assume control of the
defense of any Third Party Claim (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the reasonable fees and
expenses of counsel retained by the Indemnified Party if: (i) the claim for indemnification, compensation or reimbursement relates to or
arises in connection with any criminal or quasi criminal proceeding, action, indictment, allegation or investigation; (ii) the Indemnified
Party reasonably believes an adverse determination with respect to the Third Party Claim would be detrimental to or injure the
Indemnified Party’
s reputation, business, operations or future business prospects in a material respect; (iii) the claim seeks an injunction
or equitable relief against the Indemnified Party, or is an Action before the United States International Trade Commission; (iv) the
amount of Losses reasonably estimated to be incurred pursuant to such Third Party Claim (when combined with all other outstanding
claims for indemnification, compensation or reimbursement and any amount previously paid by the Indemnifying Party that applies
toward the applicable cap under Section 12.3 (if any) would exceed the applicable cap contemplated by Section 12.3
(if any)); (v) the
claim relates to a breach or alleged breach
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