Neiman Marcus 2009 Annual Report Download - page 242

Section 9.3, if the Purchaser is the Indemnifying Party) and with its own counsel. If, within thirty (30) days of receipt from an
Indemnified Party of the notice referred to above the Indemnifying Party (i) advises the Indemnified Party in writing that it shall not
elect to defend, settle or otherwise compromise or pay such action or claim or (ii) fails to make such an election in writing, the
Indemnified Party may (subject to the Indemnifying Party's continuing right of election in the preceding sentence), at its option,
defend, settle, compromise or pay such action or claim; provided that any such settlement or compromise shall be permitted hereunder
only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the
Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of
the Indemnified Party's reasonable costs arising out of the defense, settlement, compromise or payment thereof shall be Losses subject
to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 and 9.3, as applicable). Each
Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party
relating to such action or claim. If the Indemnifying Party elects to defend any such action or claim, the Indemnified Party may
participate in such defense with counsel of its choice at the Indemnified Party's sole cost and expense. If the Indemnifying Party elects
to assume the defense of (or otherwise elects to negotiate, settle or compromise) any action or claim as described above, the
Indemnified Party shall reimburse the Indemnifying Party for all costs and expenses incurred by the Indemnifying Party in connection
with such defense to the extent such costs and expenses do not total an amount indemnifiable pursuant to Section 9.2 or Section 9.3, as
applicable.
(b) The Indemnified Party shall have the right to reject any settlement approved by the Indemnifying Party if the
Indemnified Party is not fully and unconditionally released from any liability resulting from that claim or is required to pay any
costs, expenses or damages to any person as a result of the claim that are not covered by the indemnity provided herein. The
Indemnified Party shall not have the right to settle any third party claim without the written consent of the Indemnifying Party if the
Indemnifying Party is contesting such claim in good faith and has assumed the defense of such claim from the Indemnified Party or
if the period for determining whether or not to assume the defense of such claim from the Indemnified Party has not expired.
(c) Without limitation of their respective rights and obligations as set forth elsewhere in this Article IX, and subject to
the procedures for indemnification claims set forth in this Article IX, the Indemnified Party shall act in good faith, shall use
commercially reasonable efforts to mitigate any Losses, shall use similar discretion in the use of personnel and the incurring of
expenses as the Indemnified Party would use if it were engaged and acting entirely at its own cost and for its own account, and
shall consult regularly with the Indemnifying Party with respect to all its matters of interest to the Indemnifying Party under this
Article IX.
(d) All indemnity payments shall be treated as additional adjustments to the amount of the total consideration paid for
the Acquired Assets for all Tax purposes.
(e) Notwithstanding anything to the contrary contained herein, the indemnification provided for herein shall not cover,
and in no event shall any party hereto be liable for, any indirect damages, including consequential, incidental, exemplary or special
damages, or punitive damages (except to the extent necessary to reimburse an Indemnified Party for judgments actually awarded to
third parties in respect of such types of damages).
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