By Magellan. Subject to Sections 5.2 and 5.3 of this Schedule “A”, Magellan will indemnify, defend and hold harmless Customer, its Affiliates, and its and their respective general partners, officers, directors, employees, agents and other representatives from and against any Liabilities in connection with this Agreement to the extent arising from: (a) the negligence or willful misconduct of Magellan, its employees, agents, contractors, and other representatives; or (b) the failure of Magellan to comply with the terms and conditions of this Agreement.
By Magellan. (i) at any time prior to receipt of the Magellan Stockholder Approval, in order to enter into a binding written agreement with respect to a Superior Proposal, provided that Magellan shall have complied in all material respects with its obligations under Section 4.3; or
(ii) if One Stone shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (or if any of the representations or warranties of One Stone set forth in this Agreement shall fail to be true), which breach or failure (A) would (if it occurred or was continuing as of the Closing Date) give rise to the failure of a condition set forth in Section 5.2(a) or Section 5.2(b) and (B) is incapable of being cured, or is not cured, by One Stone by the earlier of thirty (30) days following receipt of written notice from Magellan of such breach or failure or the Outside Date; provided that Magellan shall not have the right to terminate this Agreement pursuant to this Section 6.1(d)(ii) if Magellan is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement such as would result in any of the closing conditions set forth in Section 5.3(a) and Section 5.3(b) not being satisfied.
By Magellan. Notwithstanding anything to the contrary contained in Section 4.3(a), if at any time prior to obtaining the Magellan Stockholder Approval, (i) Magellan has received an Alternative Proposal that the Magellan Board believes is bona fide, (ii) the Magellan Board, after consultation with its financial advisors and outside legal counsel, determines in good faith that such Alternative Proposal constitutes or could reasonably be expected to lead to or result in a Superior Proposal and (iii) such Alternative Proposal did not result from a material breach of this Section 4.3, then Magellan may (A) furnish information, including confidential information, with respect to Poplar, Utah CO2 or, if formed pursuant to Section 4.9(f), Newco, to the Person making such Alternative Proposal, and (B) participate in discussions or negotiations regarding such Alternative Proposal; provided that (x) Magellan shall not, and shall use reasonable best efforts to cause its Representatives not to, disclose any non-public information to such Person unless Magellan has, or first enters into, a customary confidentiality agreement with such Person with confidentiality provisions that are not less restrictive to such Person than the provisions of the Confidentiality Agreement are to One Stone and (y) Magellan shall provide to One Stone any non-public information with respect to Poplar, Utah CO2 and, if formed pursuant to Section 4.9(f), Newco, that was not previously provided or made available to One Stone prior to or substantially concurrently with providing or making available such non-public information to such other Person.
By Magellan. Magellan agrees to indemnify and hold harmless ORBCOMM and to pay all reasonable out-of-pocket costs and expenses (including, but not limited to, reasonable
By Magellan. If the making, sale, or use of any Subscriber Communicator becomes, or in the reasonable opinion of Magellan may become the subject of any claim, suit, or proceeding, or if the manufacture or sale of any Subscriber Communicator is enjoined, Magellan may, at its own option and expense:
(A) obtain for its customers including ORBCOMM the right to use such Subscriber Communicator;
(B) modify such Subscriber Communicator so that it becomes noninfringing or replace such Subscriber Communicator with a noninfringing Subscriber Communicator, in either case in such a manner as to minimize the effect of such changes on ORBCOMM and to retain compliance with the ORBCOMM Specifications, or
(C) temporarily suspend delivery of such Subscriber Communicator while the infringement claim is being investigated. If none of the above options is reasonably feasible, Magellan may instead:
(D) cease to deliver such Subscriber Communicator, and/or
(E) require ORBCOMM to return such Subscriber Communicator in its possession or control to Magellan, and pay ORBCOMM an amount equal to the price paid by ORBCOMM less depreciation (based on a five-year life, with straight-line depreciation) up to the time that the ORBCOMM ceases to use such Subscriber Communicator as a result of such claim.
