Nautilus 2009 Annual Report Download - page 135

within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party
must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided
further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party
Claim.
(c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with
Section 8.4(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the
Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed
settlement involves only the payment of money damages by the Indemnifying Party and does not impose an injunction or other equitable relief
upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with
respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld).
(d) In the event the Indemnifying Party does not assume and conduct the defense of the Third-Party Claim in accordance with
Section 8.4(b) above, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any
settlement with respect to, the Third-Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult
with, or obtain any consent from, the Indemnifying Party in connection therewith) and (ii) the Indemnifying Party will remain responsible for
any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-
Party Claim to the fullest extent provided in this Article 8.
8.5 Determination of Adverse Consequences . The amount of any Adverse Consequences shall be determined net of any insurance
proceeds for purposes of this Article 8. Indemnification payments under this Article 8 shall be paid by the Indemnifying Party without reduction
for any Tax Benefits available to the Indemnified Party. However, to the extent that the Indemnified Party recognizes Tax Benefits as a result of
any Adverse Consequences, the Indemnified Party shall pay the amount of such Tax Benefits (but not in excess of the indemnification payment
or payments actually received from the Indemnifying Party with respect to such Adverse Consequences) to the Indemnifying Party as such Tax
Benefits are actually recognized by the Indemnified Party. For this purpose, the Indemnified Party shall be deemed to recognize a tax benefit (“
Tax Benefit ”) with respect to a taxable year if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of
such taxable year, calculated by excluding any Tax items attributable to the Adverse Consequences from all taxable years, exceeds the
Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items
attributable to the Adverse Consequences and the receipt of indemnification payment under this Article 8 for all taxable years (to the extent
permitted by relevant Tax law and treating such Tax items as the last items taken into account for any taxable year). All indemnification
payments under this Article 8 shall be deemed adjustments to the Purchase Price.
8.6 Exclusive Remedy
. Buyer and Nautilus acknowledge and agree that the foregoing indemnification provisions in this Article 8 shall be
the exclusive remedy of Buyer and Nautilus with
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