INDEMNITEE WITH RESPECT THERETO
UNDER ANY INSURANCE COVERAGE OR FROM ANY OTHER PARTY ALLEGED TO BE RESPONSIBLE
THEREFOR.
PURCHASER INDEMNITEES AND THE COMPANY SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO COLLECT ANY AMOUNTS AVAILABLE UNDER SUCH INSURANCE
COVERAGE AND FROM SUCH OTHER PARTY ALLEGED TO HAVE RESPONSIBILITY.
IF A
PURCHASER INDEMNITEE OR THE COMPANY RECEIVES AN AMOUNT UNDER INSURANCE COVERAGE
OR FROM SUCH OTHER PARTY WITH RESPECT TO PURCHASER DAMAGES AT ANY TIME
SUBSEQUENT TO ANY INDEMNIFICATION PROVIDED BY SELLERS PURSUANT TO THIS SECTION
12.2, THEN SUCH PURCHASER INDEMNITEE OR THE COMPANY, AS APPLICABLE, SHALL
PROMPTLY REIMBURSE THE APPLICABLE SELLERS FOR ANY PAYMENT MADE OR EXPENSE
INCURRED BY SELLERS IN CONNECTION WITH PROVIDING SUCH INDEMNIFICATION UP TO SUCH
AMOUNT RECEIVED BY PURCHASER INDEMNITEE OR THE COMPANY;
(V)
SELLERS SHALL BE OBLIGATED TO INDEMNIFY PURCHASER INDEMNITEES
PURSUANT TO SECTION 12.2 ONLY FOR THOSE CLAIMS GIVING RISE TO PURCHASER DAMAGES
AS TO WHICH PURCHASER INDEMNITEES HAVE GIVEN SELLERS WRITTEN NOTICE THEREOF
PRIOR TO THE END OF THE APPLICABLE SURVIVAL PERIOD.
ANY WRITTEN NOTICE
DELIVERED BY A PURCHASER INDEMNITEE TO SELLERS WITH RESPECT TO PURCHASER DAMAGES
SHALL SET FORTH WITH AS MUCH SPECIFICITY AS IS REASONABLY PRACTICABLE THE BASIS
OF THE CLAIM FOR PURCHASER DAMAGES AND, TO THE EXTENT REASONABLY PRACTICABLE, A
REASONABLE ESTIMATE OF THE AMOUNT THEREOF;
(VI)
CROMPTON SHALL NOT BE OBLIGATED TO INDEMNIFY PURCHASER INDEMNITEES
PURSUANT TO SECTION 12.2 FOR ANY CLAIMS ARISING FROM CROMPTON'S BREACH OF THE
REPRESENTATION AND WARRANTIES CONTAINED IN SECTION 5.8 IF, AND TO THE EXTENT,
SELLERS ARE OBLIGATED TO INDEMNIFY PURCHASER INDEMNITEES WITH RESPECT TO THE
SAME PURCHASER DAMAGES; AND
(VII)
IF AND TO THE EXTENT THAT PURCHASER BREACHES THE REPRESENTATION
AND WARRANTIES CONTAINED IN SECTION 8.9, PURCHASER WAIVES ANY CLAIM FOR
INDEMNIFICATION ARISING AS A RESULT OF A BREACH OF A COMPANY REPRESENTATION WITH
RESPECT TO THE SAME PURCHASER DAMAGES.
SECTION 12.3
PURCHASER'S AGREEMENT TO INDEMNIFY.
(A)
SUBJECT TO THE TERMS
AND CONDITIONS SET FORTH HEREIN, FROM AND AFTER THE CLOSING, PURCHASER SHALL
INDEMNIFY AND HOLD HARMLESS SELLERS AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, AFFILIATES, CONTROLLING PERSONS, AGENTS AND REPRESENTATIVES AND THEIR
SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "SELLERS' INDEMNITEES") FROM AND
AGAINST ALL LIABILITY, DEMANDS, CLAIMS, ACTIONS OR CAUSES OF ACTION,
ASSESSMENTS, LOSSES, DAMAGES, COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES AND
46
EXPENSES) (COLLECTIVELY, "SELLERS' DAMAGES") ASSERTED AGAINST OR INCURRED BY ANY
SELLERS' INDEMNITEE AS A RESULT OF OR ARISING OUT OF:
(I)
A BREACH OF ANY REPRESENTATION OR WARRANTY CONTAINED IN ARTICLE
VIII OF THIS AGREEMENT WHEN MADE OR AT AND AS OF THE CLOSING DATE (OR AT AND AS
OF SUCH DIFFERENT DATE OR PERIOD SPECIFIED FOR SUCH REPRESENTATION OR WARRANTY)
AS THOUGH SUCH REPRESENTATION AND WARRANTY WERE MADE AT AND AS OF THE CLOSING
DATE (OR SUCH DIFFERENT DATE OR PERIOD); AND
(II)
A BREACH OF ANY COVENANT OR AGREEMENT OF PURCHASER CONTAINED IN
THIS AGREEMENT, IN ANY ANCILLARY AGREEMENT, OR IN ANY OTHER AGREEMENT DELIVERED
BY PURCHASER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY AND A
BREACH BY THE