Form Apa - Asset Purchase Agreement Page 32
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461
defense, compromise or settlement. Notwithstanding the foregoing, the Indemnified
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Party shall be entitled to conduct its own defense at the cost and expense of the
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Indemnifying Party if the Indemnified Party establishes that the conduct of its defense by
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the Indemnifying Party would reasonably be likely to prejudice materially the
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Indemnified Party due to a conflict of interest between the Indemnified Party and the
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Indemnifying Party or their legal counsel; and provided further that in any event the
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Indemnified Party may participate in such defense at its own expense.
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(d)
Settlement.
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In the event that the Indemnified Party settles any Claim without the prior
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written consent of the Indemnifying Party, the Indemnifying Party shall have no further
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indemnification obligations under this Section 10.2 with respect to such Claim; provided,
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however, that if the Indemnifying Party refuses to defend or otherwise handle such Claim
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and it is subsequently determined that the Indemnifying Party is or was obligated to
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defend or indemnify the Indemnified Party with respect to such Claim, then the
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Indemnifying Party shall remain obligated with respect to such settlement amount. If the
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Indemnifying Party shall control the defense of any such Claim, the Indemnifying Party
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shall obtain the prior written consent of the Indemnified Party (which shall not be
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unreasonably withheld) before entering into any settlement of a Claim or ceasing to
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defend such Claim if, pursuant to or as a result of such settlement or cessation, injunctive
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or other equitable relief shall be imposed against the Indemnified Party or if such
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settlement or cessation does not expressly and unconditionally release the Indemnified
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Party from all liabilities and obligations with respect to such Claim, without prejudice. In
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the event that the Indemnifying Party proposes a settlement to any Claim with respect to
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which the Indemnifying Party is or was entitled to defend, which settlement is
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satisfactory to the party instituting such Claim, and the Indemnified Party withholds its
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consent to such settlement, and thereafter a final judgment is entered against the
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Indemnifying Party or Indemnified Party pursuant to which Damages exceed the amount
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of the proposed settlement, then in such case the Indemnifying Party shall have no
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obligation to indemnify the Indemnified Party under this Section 10.2 against and in
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respect of the amount by which the Damages resulting from such final judgment exceed
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the amount of the proposed settlement.
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(e)
Mitigation.
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Each Indemnified Party shall have an obligation to mitigate Damages
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under this Agreement, and to that end each party shall use all commercially reasonable
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efforts and shall consult and cooperate with each other with a view towards mitigating
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claims, losses, liabilities, Damages, deficiencies, costs and expenses that may give rise to
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claims for indemnification under this Section 10.2.
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(f)
Cooperation.
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In the event that any action, suit, proceeding or investigation relating
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hereto, the Excluded Liabilities or to the transactions contemplated by this Agreement is
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commenced, whether before or after the Closing, the parties hereto agree to cooperate
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