OR CONDITIONED, SETTLE, COMPROMISE OR OFFER TO SETTLE OR COMPROMISE ANY
SUCH CLAIM OR DEMAND ON A BASIS WHICH WOULD RESULT IN THE IMPOSITION OF A
CONSENT ORDER, INJUNCTION OR DECREE WHICH WOULD RESTRICT THE FUTURE ACTIVITY OR
CONDUCT OF THE OTHER PARTIES OR ANY SUBSIDIARY OR AFFILIATE THEREOF OR IF SUCH
SETTLEMENT OR COMPROMISE DOES NOT INCLUDE AN UNCONDITIONAL RELEASE OF THE OTHER
PARTIES FOR ANY LIABILITY ARISING OUT OF SUCH CLAIM OR DEMAND OR ANY RELATED
CLAIM OR DEMAND.
THE FOREGOING PROVISION SHALL NOT APPLY TO SELLER'S CONTROL OF
THE MATTERS SET FORTH IN SCHEDULE 4.8 WHICH SHALL BE GOVERNED BY SECTION 6.3(E).
(F)
SELLER SHALL NOT BE ENTITLED TO ASSUME THE DEFENSE OF SUCH
THIRD-PARTY CLAIM, BUT SHALL BE ABLE TO PARTICIPATE FULLY AND JOINTLY WITH
BUYER, IF:
(I)
THE THIRD-PARTY CLAIM SEEKS, IN ADDITION TO OR IN LIEU OF
MONETARY DAMAGES, ANY INJUNCTIVE OR OTHER EQUITABLE RELIEF (EXCEPT WHERE
NON-MONETARY RELIEF IS MERELY INCIDENTAL TO A PRIMARY CLAIM OR CLAIMS FOR
MONETARY DAMAGES);
(II)
THE THIRD-PARTY CLAIM RELATES TO OR ARISES IN CONNECTION WITH ANY
CRIMINAL PROCEEDING, ACTION, INDICTMENT, ALLEGATION OR INVESTIGATION; OR
(III)
THE THIRD-PARTY CLAIM WOULD GIVE RISE TO DAMAGES THAT ARE MORE
THAN THE AMOUNT INDEMNIFIABLE BY SELLER PURSUANT TO THIS ARTICLE IX.
Section 9.3
Indemnification by Buyer.
(A)
EXCEPT AS OTHERWISE PROVIDED IN ARTICLE X BELOW AND SUBJECT TO THE
FURTHER PROVISIONS HEREOF, BUYER SHALL DEFEND, INDEMNIFY AND HOLD SELLER, ITS
AFFILIATES AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS, AND THEIR
RESPECTIVE SHAREHOLDERS, MEMBERS, PARTNERS (GENERAL AND LIMITED), OFFICERS,
DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES, AND EACH OF THEIR
HEIRS, EXECUTORS, SUCCESSORS AND ASSIGNS ("SELLER INDEMNIFIED PARTIES"),
HARMLESS FROM AND AGAINST AND IN RESPECT OF ANY AND ALL DAMAGES ARISING OUT OF
(I) ANY BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES OF BUYER IN THIS
AGREEMENT, AND (II) ANY BREACH OF ANY OF THE COVENANTS OR OTHER AGREEMENTS OF
BUYER IN THIS AGREEMENT.
FOR ALL DETERMINATIONS MADE AFTER THE CLOSING
REGARDING THE EXISTENCE OF A BREACH OF ANY OF BUYER'S REPRESENTATIONS AND
WARRANTIES IN ARTICLE V FOR THE PURPOSES OF SECTION 9.3(A)(I) OR THE AMOUNT OF
ANY DAMAGES WITH RESPECT THERETO, ALL SUCH REPRESENTATIONS AND WARRANTIES THAT
ARE QUALIFIED BY MATERIALITY OR BY REFERENCE TO MATERIAL ADVERSE EFFECT SHALL BE
DEEMED TO BE NOT SO QUALIFIED.
(B)
BUYER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.3(A) SHALL
TERMINATE UPON EXPIRATION OF THE APPLICABLE SURVIVAL PERIOD.
43
(C)
THE INDEMNITIES PROVIDED IN THIS SECTION 9.3 SHALL SURVIVE THE
CLOSING.
THE INDEMNITY PROVIDED IN THIS SECTION 9.3 SHALL BE THE SOLE AND
EXCLUSIVE REMEDY OF THE SELLER INDEMNIFIED PARTIES AGAINST BUYER AT LAW OR IN
EQUITY RELATING TO THIS AGREEMENT IN THE TRANSACTIONS CONTEMPLATED HEREBY.
THE
PARTIES AGREE TO TREAT ANY INDEMNITY PAYMENT MADE PURSUANT TO SECTION 9.3(A) AS
AN ADJUSTMENT TO THE FINAL PURCHASE PRICE UNLESS OTHERWISE REQUIRED PURSUANT TO
A "DETERMINATION" WITHIN THE MEANING OF SECTION 1313(A) OF THE CODE.
(D)
SELLER SHALL GIVE BUYER PROMPT WRITTEN NOTICE OF ANY THIRD PARTY CLAIM