ACTIVITY UNDERTAKEN BY OR ON
BEHALF OF THE PURCHASER WHETHER AUTHORIZED OR UNAUTHORIZED PURSUANT TO
SECTION 2.04 OF THE PURCHASE AGREEMENT.
SECTION 3.3
INDEMNIFICATION PROCEDURES. IF
A PROTECTED PARTY RECEIVES NOTICE OF ANY THIRD-PARTY CLAIM AGAINST IT WHICH
MAY GIVE RISE TO A CLAIM FOR A THIRD-PARTY LOSS UNDER THIS ARTICLE III, THEN
PARENT SHALL GIVE NOTICE OF SUCH THIRD PARTY CLAIM TO THE PURCHASER, WHO SHALL
BE ENTITLED TO UNDERTAKE AND CONDUCT THE INVESTIGATION AND DEFENSE IN CONNECTION
WITH SUCH THIRD-PARTY CLAIM IF, WITHIN 15 DAYS AFTER RECEIPT OF NOTICE OF THE
THIRD PARTY CLAIM FROM PARENT, THE PURCHASER NOTIFIES PARENT THAT THE PURCHASER
(I) ACKNOWLEDGES THAT IT IS OBLIGATED TO INDEMNIFY THE RELEVANT PROTECTED
PARTIES FOR THE THIRD PARTY CLAIM AND (II) IS ASSUMING THE INVESTIGATION AND
DEFENSE OF THE THIRD PARTY CLAIM. IF THE PURCHASER FAILS OR REFUSES TO UNDERTAKE
THE INVESTIGATION AND DEFENSE OF A THIRD PARTY CLAIM IN ACCORDANCE WITH THE
AFOREMENTIONED NOTIFICATION PROCEDURES OR IS NOT CONDUCTING SUCH INVESTIGATION
AND DEFENSE IN A MANNER REASONABLY SATISFACTORY TO PARENT, THEN PARENT SHALL BE
ENTITLED TO IMMEDIATELY ASSUME CONTROL, AT THE EXPENSE OF THE PURCHASER, OF SUCH
INVESTIGATION AND DEFENSE, AND THE PURCHASER, TOGETHER WITH ANY OF ITS LEGAL
REPRESENTATIVES INVOLVED WITH SUCH INVESTIGATION AND DEFENSE, SHALL PROMPTLY
COOPERATE WITH PARENT AND ITS LEGAL REPRESENTATIVES IN CONNECTION WITH PARENT'S
ASSUMPTION OF SUCH CONTROL. EACH PROTECTED PARTY AND THE PURCHASER SHALL
COOPERATE WITH EACH OTHER WITH RESPECT TO ANY CLAIM RELATING TO A THIRD PARTY
LOSS, INCLUDING MAKING AVAILABLE TO THE OTHER, AT THE PURCHASER'S EXPENSE, ALL
WITNESSES, RECORDS, MATERIALS AND INFORMATION IN THEIR RESPECTIVE POSSESSION OR
UNDER THEIR RESPECTIVE CONTROL RELATING TO SUCH MATTER. NO THIRD PARTY CLAIM
MAY BE SETTLED BY THE PURCHASER OR THE PARENT WITHOUT THE OTHER PARTY'S PRIOR
WRITTEN CONSENT, WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR
DELAYED; PROVIDED THAT NO SUCH CONSENT WILL BE REQUIRED IF SUCH COMPROMISE OR
SETTLEMENT IS BASED SOLELY ON THE PAYMENT OF MONEY IN EXCHANGE FOR A COMPLETE
RELEASE OF THE PURCHASER OR THE PROTECTED PARTY, AS APPLICABLE, WITHOUT ANY
FURTHER OBLIGATIONS BEING IMPOSED ON SUCH PERSON.
4
ARTICLE IV
MISCELLANEOUS
SECTION 4.1
NO WAIVER. NOTHING IN THIS
AMENDMENT SHALL CONSTITUTE A WAIVER BY PARENT, THE SELLER OR THE PURCHASER OF
ANY BREACH OR DEFAULT ON THE PART OF ANY PARTY TO THE PURCHASE AGREEMENT.
SECTION 4.2
GOVERNING LAW; JURISDICTION.
THE PROVISIONS OF SECTIONS 10.12 OF THE PURCHASE AGREEMENT SHALL APPLY TO THIS
AMENDMENT AS IF REFERENCES TO "AGREEMENT" THEREIN WERE TO THIS AMENDMENT.
SECTION 4.3
ENTIRE AGREEMENT. THIS
AMENDMENT TOGETHER WITH THE PURCHASE AGREEMENT (TOGETHER WITH THE SCHEDULES,
EXHIBITS AND OTHER AGREEMENTS REFERENCED THEREIN), THE CONFIDENTIALITY AGREEMENT
AND THE ANCILLARY AGREEMENTS CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ALL
PRIOR AGREEMENTS AND UNDERTAKINGS, BOTH WRITTEN AND ORAL, AMONG THE SELLER,
PARENT AND THE PURCHASER WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF.
SECTION 4.4
EFFECT. EXCEPT AS EXPRESSLY SET