TO
THE OTHER PARTY TO THIS AGREEMENT.
9.2
SURVIVAL.
IF THIS AGREEMENT IS TERMINATED
PURSUANT TO THIS ARTICLE 9, ALL FURTHER OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT (OTHER THAN SECTIONS 9.2, 10.1 AND 10.2 AND ARTICLE 11) SHALL BE
TERMINATED WITHOUT FURTHER LIABILITY OF ANY PARTY TO THE OTHER; PROVIDED THAT
NOTHING HEREIN SHALL RELIEVE ANY PARTY FROM LIABILITY FOR ITS WILLFUL BREACH OF
THIS AGREEMENT.
ARTICLE 10
INDEMNIFICATION
10.1
INDEMNIFICATION.
THE COMPANY HEREBY AGREES TO
INDEMNIFY, DEFEND AND HOLD HARMLESS THE PURCHASER, ITS AFFILIATES AND ITS
DIRECTORS, OFFICERS, AGENTS, ADVISORS, REPRESENTATIVES, EMPLOYEES, SUCCESSORS
AND ASSIGNS (EACH, A "PURCHASER INDEMNITEE") FROM AND AGAINST ALL CLAIMS,
INCLUDING WITHOUT LIMITATION, INTEREST, PENALTIES AND ATTORNEYS' FEES AND
EXPENSES, ASSERTED AGAINST, RESULTING TO, OR IMPOSED UPON OR INCURRED BY SUCH
PURCHASER INDEMNITEE BY A THIRD PARTY AND ARISING OUT OF OR RESULTING FROM ANY
ALLEGATION OR ACTION IN RESPECT OF ANY WRONGFUL ACTION OR INACTION BY THE
COMPANY IN CONNECTION WITH THE AUTHORIZATION, EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT OR THE TRANSACTION AGREEMENTS, EXCEPT TO THE
EXTENT THAT THE PURCHASER INDEMNITEE HAS COMMITTED A MATERIAL BREACH OF ITS
REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THIS AGREEMENT, WHICH BREACH IS
THE CAUSE OF THE COMPANY'S WRONGFUL ACTION OR INACTION.
IF THE CLOSING OCCURS,
ANY PAYMENT BY THE COMPANY TO ANY PURCHASER
*CONFIDENTIAL TREATMENT REQUESTED
46
INDEMNITEE PURSUANT TO THIS SECTION 10.1 SHALL BE TREATED FOR ALL INCOME TAX
PURPOSES AS AN ADJUSTMENT TO THE PRICE PAID BY THE PURCHASER FOR THE NOTE
PURSUANT TO THIS AGREEMENT.
10.2
TERMS OF INDEMNIFICATION.
THE OBLIGATIONS AND
LIABILITIES OF THE COMPANY WITH RESPECT TO CLAIMS RESULTING FROM ANY ACTION BY
THIRD PARTIES WILL BE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS: (A) A
PURCHASER INDEMNITEE WILL GIVE THE COMPANY PROMPT NOTICE OF ANY THE FACTS GIVING
RISE TO ANY CLAIM TO BE INDEMNIFIED HEREWITH; PROVIDED THAT THE FAILURE OF ANY
PURCHASER INDEMNITEE TO GIVE NOTICE AS PROVIDED IN THIS SECTION 10.2 SHALL NOT
RELIEVE THE COMPANY OF ITS OBLIGATIONS UNDER THIS ARTICLE 10, EXCEPT TO THE
EXTENT THAT SUCH FAILURE HAS MATERIALLY AND ADVERSELY AFFECTED THE RIGHTS OF THE
COMPANY; (B) SUCH PURCHASER INDEMNITEE WILL HAVE THE RIGHT TO UNDERTAKE THE
DEFENSE, COMPROMISE OR SETTLEMENT OF SUCH CLAIMS ON BEHALF OF AND FOR THE
ACCOUNT AND AT THE RISK OF THE COMPANY USING COUNSEL OF ITS CHOICE, THE FEES AND
EXPENSES OF WHICH SHALL BE PAID BY THE COMPANY; PROVIDED, THAT THE PURCHASER
INDEMNITEE SHALL NOT SUBJECT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY,
SETTLE OR COMPROMISE ANY CLAIM OR CONSENT TO ENTRY OF ANY JUDGMENT RELATING TO
ANY SUCH CLAIM; AND (C) THE COMPANY WILL PROVIDE EACH PURCHASER INDEMNITEE
REASONABLE ACCESS TO ALL RECORDS AND DOCUMENTS OF THE COMPANY RELATING TO ANY
CLAIM.
ARTICLE 11
MISCELLANEOUS
11.1
SURVIVAL.
ALL REPRESENTATIONS AND WARRANTIES,
COVENANTS AND AGREEMENTS OF THE COMPANY AND THE PURCHASER CONTAINED IN THIS
AGREEMENT SHALL REMAIN OPERATIVE AND IN FULL FORCE AND EFFECT REGARDLESS OF ANY
INVESTIGATION MADE BY OR ON BEHALF OF