M&A Boot Camp booklet 2023 - Flipbook - Page 141
9.4 No Contribution. Each Indemnitor waives, and acknowledges and agrees that he shall not have and shall not exercise or assert (or
attempt to exercise or assert), any right of contribution, right of indemnity or other right or remedy against Merger Sub or the Company in
connection with any indemnification obligation or any other liability to which he may become subject under or in connection with this Agreement
or any other agreement or document delivered to Parent in connection with this Agreement.
9.5 Defense of Third Party Claims. In the event of the assertion or commencement by any Person of any claim or Legal Proceeding (whether
against Merger Sub, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless,
indemnify, compensate or reimburse any Indemnitee pursuant to Section 9, Parent shall have the right, at its election, to proceed with the defense
of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agent. If Parent so proceeds with the
defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 9, all reasonable and documented out-of-pocket expenses relating to the defense of such
claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to
the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles,
adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent, such settlement, adjustment or
compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal
Proceeding (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the
Stockholders’ Agent shall not unreasonably withhold or delay such consent).
Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, Merger Sub
or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the
obligations of the Indemnitors under Section 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If
Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent may proceed with the defense
of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle,
adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably
withheld or delayed).
9.6 Setoff. Subject to the other provisions of this Section 9, in addition to any rights of setoff or other similar rights that Parent or any of the
other Indemnitees may have at common law or otherwise, Parent shall have the right to withhold and deduct any sum that may be owed to any
Indemnitee under this Section 9 from any amount otherwise payable by any Indemnitee to any Indemnitor in respect of shares of such
Indemnitor’s Company Capital Stock (it being understood that: (a) if there are any Available Escrow Funds (as defined below), Parent shall seek
recovery of any indemnification claim against such Available Escrow Funds prior to seeking recovery pursuant to the setoff rights described in
this Section 9.6; and (b) “Available Escrow Funds” shall mean any portion of the Escrow Fund that remains in the Escrow Fund and is not subject
to pending claims).
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