Common use of Indemnification by Xxxxx Clause in Contracts

Indemnification by Xxxxx. Xxxxx recognizes that the -------------------------- Exchange being conducted with Xxxxxx is based, to a material degree, upon the representations and warranties of Xxxxx as set forth and contained herein and Xxxxx hereby agrees to indemnify and hold harmless Xxxxxx against all damages, costs, or expenses (including reasonable attorney's fees) arising as a result of any breach of representation or warranty or omission made herein by Xxxxx. If any action is brought against Xxxxxx in respect of which indemnity may be sought against Xxxxx pursuant to the foregoing paragraph, Xxxxxx shall promptly notify Xxxxx in writing of the institution of such action (but the omission to so notify Xxxxx shall not relieve it from any liability that it may have to Xxxxxx except to the extent Xxxxx is materially prejudiced or otherwise forfeit substantive rights or defenses by reason of such failure), and Xxxxx shall assume the defense of such action, including the employment of counsel to be chosen by Xxxxx to be reasonably satisfactory to Xxxxxx, and payment of expenses. Xxxxxx shall have the right to employ Xxxxx' or their own counsel in any such case, but the fees and expenses of such counsel shall be at Xxxxxx expense, unless the employment of such counsel shall have been authorized in writing by Xxxxx in connection with the defense of such action, or Xxxxx shall not have employed counsel to take charge of the defense of such action, or counsel employed by Xxxxx shall not be diligently defending such action, or Berens shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Xxxxx, or that representation of Xxxxxx by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case Xxxxx shall not have the right to direct the defense of such action on behalf of Xxxxxx), in any of which event such fees and expenses shall be borne by Xxxxx. Anything in this paragraph to the contrary notwithstanding, Xxxxx shall not be liable for any settlement of, or any expenses incurred with respect to, any such claim or action effected without Xxxxx' written consent, which consent shall not be unreasonably withheld. Xxxxx shall not, without the prior written consent of Xxxxxx effect any settlement of any proceeding in respect of which Xxxxxx is a party and indemnity has been sought hereunder unless such settlement includes an unconditional release of Xxxxxx from all liability on claims that are the subject matter of such proceeding.

Indemnification by Xxxxx. In connection with any registration statement in which Xxxxx recognizes that is participating, Xxxxx will furnish to the -------------------------- Exchange being conducted Company in writing such information and affidavits as the Company reasonably requests for use in connection with Xxxxxx is basedany such registration statement or prospectus and, to a material degreethe extent permitted by law, upon the representations and warranties of Xxxxx as set forth and contained herein and Xxxxx hereby agrees to will indemnify and hold harmless Xxxxxx the Company and its Indemnitees against all any losses, claims, damages, costsliabilities, joint or several, to which the Company or any such Indemnitee may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon (a) any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or in any application, together with any documents incorporated therein by reference or (b) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application, in reliance upon and in conformity with written information prepared and furnished to the Company by Xxxxx expressly for use therein, and Xxxxx will reimburse the Company and each such Indemnitee for any legal or any other expenses (including reasonable attorney's fees) arising as a result any amounts paid in any settlement effected with the consent of Xxxxx, which consent will not be unreasonably withheld or delayed, incurred by them in connection with investigating or defending any breach such loss, claim, liability, action or proceeding; provided, however, that the obligation to indemnify will be limited to the net amount of representation or warranty or omission made herein proceeds received by Xxxxx. If Xxxxx from the sale of Registrable Securities pursuant to such registration statement, less any action is brought against Xxxxxx other amounts paid by Xxxxx in respect of which indemnity may be sought against Xxxxx pursuant to the foregoing paragraphsuch untrue statement, Xxxxxx shall promptly notify Xxxxx in writing of the institution of such action (but the alleged untrue statement, omission to so notify Xxxxx shall not relieve it from any liability that it may have to Xxxxxx except to the extent Xxxxx is materially prejudiced or otherwise forfeit substantive rights or defenses by reason of such failure), and Xxxxx shall assume the defense of such action, including the employment of counsel to be chosen by Xxxxx to be reasonably satisfactory to Xxxxxx, and payment of expenses. Xxxxxx shall have the right to employ Xxxxx' or their own counsel in any such case, but the fees and expenses of such counsel shall be at Xxxxxx expense, unless the employment of such counsel shall have been authorized in writing by Xxxxx in connection with the defense of such action, or Xxxxx shall not have employed counsel to take charge of the defense of such action, or counsel employed by Xxxxx shall not be diligently defending such action, or Berens shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Xxxxx, or that representation of Xxxxxx by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case Xxxxx shall not have the right to direct the defense of such action on behalf of Xxxxxx), in any of which event such fees and expenses shall be borne by Xxxxx. Anything in this paragraph to the contrary notwithstanding, Xxxxx shall not be liable for any settlement of, or any expenses incurred with respect to, any such claim or action effected without Xxxxx' written consent, which consent shall not be unreasonably withheld. Xxxxx shall not, without the prior written consent of Xxxxxx effect any settlement of any proceeding in respect of which Xxxxxx is a party and indemnity has been sought hereunder unless such settlement includes an unconditional release of Xxxxxx from all liability on claims that are the subject matter of such proceedingalleged omission.

Indemnification by Xxxxx. Xxxxx recognizes that (a) Subject to the -------------------------- Exchange being conducted with Xxxxxx is based, to a material degree, upon the representations and warranties of Xxxxx as limitations set forth in Sections 8.1 and contained herein and 8.4, Xxxxx hereby agrees to indemnify and hold Seller and its employees, officers, managers, members, and affiliates (each a “Seller Indemnified Party”) harmless Xxxxxx from and against any and all damagesLosses imposed upon or incurred by any Seller Indemnified Party (any of such Losses by Seller, costs, or expenses (including reasonable attorney's feesa “Seller Claim”) arising as a result of or in connection with any of the following: (i) any breach of a representation or warranty made by Buyer in this Agreement or omission made herein in any agreement or instrument executed in connection herewith or pursuant hereto; (ii) the breach of or default in the performance by Xxxxx. If Xxxxx of any action is brought against Xxxxxx covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement or any agreement or instrument executed in connection herewith or pursuant hereto; or (iii) the Assumed Liabilities. (b) Within 30 days after receipt by a Seller Indemnified Party of notice of the commencement of an Action or other event giving rise to a Seller Claim with respect of to which indemnity a Seller Indemnified Party may be sought against Xxxxx pursuant entitled to indemnification, the foregoing paragraph, Xxxxxx party receiving such notice shall promptly notify Xxxxx (the “Seller Claim Notice”) Buyer in writing of the institution commencement of such action (but Action or the omission assertion of such Seller Claim; provided, however, that failure to so notify Xxxxx give such notice shall not relieve it from any liability that it may have affect the right to Xxxxxx indemnification hereunder except to the extent Xxxxx is materially prejudiced or otherwise forfeit substantive rights or defenses by reason of such failure)actual prejudice to Buyer. Buyer shall have the option, and Xxxxx shall assume notify each indemnified party in writing within 10 Business Days after the date of the Seller Claim of its election, either: (A) to participate (at its own expense) in the defense of the Action or Seller Claim (in which case the defense of such actionAction or Seller Claim shall be controlled by the Seller Indemnified Party) or (B) to take charge of and control defense of such Action or Seller Claim (at its own expense). If Xxxxx fails to notify the Seller Indemnified Party of its election within the applicable response period, including then Buyer shall be deemed to have elected not to control the employment defense of counsel such Action or Seller Claim. If Buyer elects to be chosen by Xxxxx to be reasonably satisfactory to Xxxxxxcontrol the defense of any Action or Seller Claim, and payment of expenses. Xxxxxx each Seller Indemnified Party shall have the right to employ Xxxxx' or their own separate counsel and participate in the defense of any such caseAction or Seller Claim, but the fees and expenses of such counsel shall be at Xxxxxx expense, unless the employment expense of the Seller Indemnified Party unless: (1) the named parties in such counsel Action or Seller Claim (including any impleaded parties) include both the Seller Indemnified Party and Buyer and the Seller Indemnified Party shall have been authorized in writing advised by Xxxxx in connection with the defense of such action, or Xxxxx shall not have employed counsel to take charge of the defense of such action, or counsel employed by Xxxxx shall not be diligently defending such action, or Berens shall have reasonably concluded that there may be one or more legal defenses available to it which that are different from or additional to those available to XxxxxBuyer, or (2) Seller has reasonably determined that representation of Xxxxxx by Losses that may be incurred may exceed either individually, or when aggregated with other Seller Claims, the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them Maximum Indemnity Amount (in which case Xxxxx case, Buyer shall not have the right to direct assume the defense of such action Action or Seller Claim on behalf of Xxxxxx)the Seller Indemnified Party, it being understood, however, that Xxxxx shall not, in connection with such Action or Seller Claim be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any of which event local counsel) and that such fees and expenses shall be borne by Xxxxx. Anything in this paragraph to reimbursed as they are incurred). (c) If Buyer does not control the contrary notwithstandingdefense of any Action or Seller Claim, Xxxxx shall not be liable for any settlement of, then the Seller Indemnified Party or any expenses incurred parties may settle such Action or Seller Claim with respect to, any such claim or action effected without Xxxxx' written consent, which consent shall not be unreasonably withheld. Xxxxx shall not, without the prior written consent of Xxxxxx effect any settlement of any proceeding in respect of which Xxxxxx is a party and indemnity has been sought hereunder unless such settlement includes an unconditional release of Xxxxxx from all liability on claims that are the subject matter of such proceedingBuyer (not to be unreasonably withheld).

Indemnification by Xxxxx. Xxxxx recognizes that (a) Subject to the -------------------------- Exchange being conducted with Xxxxxx is basedprovisions of this Article IX, to a material degreeBuyer shall indemnify, upon the representations and warranties of Xxxxx as set forth and contained herein and Xxxxx hereby agrees to indemnify defend and hold harmless Xxxxxx Seller and its Affiliates and their respective stockholders, officers, directors, employees, representatives and agents (collectively, the “Seller Indemnitees”) from and after the Signing Date from and against any and all damages, costs, or expenses Damages incurred by the Seller Indemnitees to the extent caused by: (including reasonable attorney's feesi) arising as a result of any breach of representation or warranty or omission any of the Buyer Fundamental Representations made herein in this Agreement by Xxxxx. If ; provided, that, in the case of any action Buyer Fundamental Representation that is brought against Xxxxxx in respect limited by “materiality,” “Material Adverse Effect” or any similar term or limitation, the amount of which indemnity may Damages shall be sought against Xxxxx pursuant determined as if such “materiality,” “Material Adverse Effect” or similar term or limitation were not included therein; (ii) any breach of any covenant or agreement of Buyer made herein; or (iii) any Assumed Liability. (b) Notwithstanding the foregoing, Xxxxx’s maximum Liability to the foregoing paragraph, Xxxxxx shall promptly notify Xxxxx in writing of the institution of such action (but the omission to so notify Xxxxx Seller Indemnitees for all Damages arising under Section 9.3(a)(i) and Section 9.3(a)(ii) shall not relieve it from any liability that it may have exceed the aggregate Purchase Price paid to Xxxxxx Seller hereunder, except to the extent Xxxxx is materially prejudiced Buyer does not use its good faith efforts to comply with any of its covenants or otherwise forfeit substantive rights or defenses by reason of such failure)agreements contained herein. Notwithstanding anything herein to the contrary, and Xxxxx shall assume the defense of such action, including the employment of counsel to be chosen by Xxxxx to be reasonably satisfactory to Xxxxxx, and payment of expenses. Xxxxxx shall have the right to employ Xxxxx' or their own counsel limitation set forth in any such case, but the fees and expenses of such counsel shall be at Xxxxxx expense, unless the employment of such counsel shall have been authorized in writing by Xxxxx in connection with the defense of such action, or Xxxxx this Section 9.3(b) shall not have employed counsel apply in respect of any indemnification obligation to take charge the extent arising out of the defense of such action, or counsel employed by Xxxxx shall not be diligently defending such action, resulting from fraud or Berens shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Xxxxx, or that representation of Xxxxxx by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case Xxxxx shall not have the right to direct the defense of such action on behalf of Xxxxxx), in any of which event such fees and expenses shall be borne willful misrepresentation by Xxxxx. Anything For the avoidance of doubt, except in the event of Fraud, there shall be no indemnification by Buyer of any Seller Indemnities for any breach of any of the representations or warranties set forth in this paragraph to Agreement other than the contrary notwithstanding, Xxxxx shall not be liable for any settlement of, or any expenses incurred with respect to, any such claim or action effected without Xxxxx' written consent, which consent shall not be unreasonably withheld. Xxxxx shall not, without the prior written consent of Xxxxxx effect any settlement of any proceeding in respect of which Xxxxxx is a party and indemnity has been sought hereunder unless such settlement includes an unconditional release of Xxxxxx from all liability on claims that are the subject matter of such proceedingBuyer Fundamental Representations.

Indemnification by Xxxxx. Xxxxx recognizes that the -------------------------- Exchange being conducted with Xxxxxx is based, to a material degree, upon the representations and warranties of Xxxxx as set forth and contained herein and Xxxxx hereby XXXXX agrees to indemnify and hold PHMD harmless Xxxxxx against from and against: (i) any and all damagesloss, costsliability, damage or deficiency resulting from any misrepresentation, breach of warranty representation or nonfulfillment of any covenant or agreement on the part of XXXXX under the terms of this Agreement or any document or instrument executed by XXXXX in connection herewith; (ii) any and all claims for product liability relating to Licensed Product, to the extent such claims relate to any Licensed Product directly manufactured or produced by XXXXX, or expenses manufactured at the direction of XXXXX, or are due to deficiencies in the technical direction given by XXXXX in respect of the Licensed Products; (including reasonable attorney's feesiii) arising as a result of any and all loss, liability, damage or deficiency resulting from any misrepresentation, breach of representation or warranty or omission made herein nonfulfillment of any covenant or agreement on the part of XXXXX under the terms of this Agreement or any document or instrument executed by Xxxxx. If XXXXX in connection herewith; and (iv) any action is brought against Xxxxxx in respect of which indemnity may be sought against Xxxxx pursuant and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, reasonable attorneys’ fees, incident to the foregoing paragraphsubparagraphs (i), Xxxxxx shall promptly notify Xxxxx in writing of the institution of such action (but the omission to so notify Xxxxx shall not relieve it from any liability that it may have to Xxxxxx except to the extent Xxxxx is materially prejudiced or otherwise forfeit substantive rights or defenses by reason of such failureii) and (iii), and Xxxxx shall assume only such subparagraphs (and on appeal therefrom), regardless of whether or not PHMD prevails in such matter. Notwithstanding the defense foregoing of this Section 10.3, XXXXX does not in any way indemnify and hold PHMD harmless from and against liabilities, obligations, damages, claims and third party rights caused by incorrect and careless use of Licensed Products or use of such action, including products for any purpose other than the employment ordinary purpose for which Licensed Products are used. If STGERN believes that it is not obliged to indemnify PHMD under the provisions of counsel to be chosen by Xxxxx to be reasonably satisfactory to Xxxxxxthis Section 10.3, and payment of expenses. Xxxxxx shall have it submits such dispute for arbitral resolution, then during the right to employ Xxxxx' or their own counsel in any such case, but the fees and expenses pendency of such counsel shall be at Xxxxxx expense, unless the employment of such counsel shall have been authorized in writing by Xxxxx in connection with the defense of such action, or Xxxxx shall not have employed counsel to take charge of the defense of such action, or counsel employed by Xxxxx arbitration XXXXX shall not be diligently defending such actionrequired to perform hereunder vis-à-vis PHMD, or Berens shall nor may PHMD act on rights vis-à-vis XXXXX which it deems to have reasonably concluded that there may be defenses available been granted to it which are different from or additional to those available to Xxxxx, or that representation of Xxxxxx by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case Xxxxx shall not have the right to direct the defense of such action on behalf of Xxxxxx), in any of which event such fees and expenses shall be borne by Xxxxx. Anything in this paragraph to the contrary notwithstanding, Xxxxx shall not be liable for any settlement of, or any expenses incurred with respect to, any such claim or action effected without Xxxxx' written consent, which consent shall not be unreasonably withheld. Xxxxx shall not, without the prior written consent of Xxxxxx effect any settlement of any proceeding in respect of which Xxxxxx is a party and indemnity has been sought hereunder unless such settlement includes an unconditional release of Xxxxxx from all liability on claims that are the subject matter of such proceedinghereunder.

Indemnification by Xxxxx. Xxxxx recognizes that the -------------------------- Exchange being conducted with Xxxxxx is based, to a material degree, upon the representations and warranties of Xxxxx as set forth and contained herein and Xxxxx (a) Buyer hereby agrees to indemnify indemnify, defend and hold harmless Xxxxxx Seller against and from all damagesexpenses, costslosses, or expenses claims, liabilities, fines and penalties (including reasonable attorney's attorneys’ fees) arising as a result of any breach nature (1) incurred by Seller by reason of the Buyer's failure to comply with the provisions of this Agreement or directions of Seller issued pursuant hereto, and (2) for damage to property or injuries to any persons or animals (including death) arising out of the Buyer's use of the services purchased hereunder or in connection with or related to the performance of this Agreement, including, but not limited to claims arising out of the negligence or alleged negligence of Seller in connection with or related to the performance of this Agreement. (b) Buyer shall name Seller as an additional insured under all appropriate liability insurance policies and furnish a copy to Seller. (c) Notwithstanding anything herein to the contrary, Xxxxx acknowledges that the Buyer has made its own investigation of the adequacy and sufficiency of service hereunder for the Buyer's purposes and that the Buyer has not relied upon any representation or warranty of Seller concerning the adequacy or omission made herein by Xxxxx. If any action is brought against Xxxxxx in respect sufficiency of which indemnity may be sought against Xxxxx pursuant the service hereunder other than the representation that Seller shall deliver potable water to the foregoing paragraph, Xxxxxx shall promptly notify Xxxxx in writing Delivery Point. (d) Except as to those representations of the institution of such action (but Seller provided in this Agreement, the omission to so notify Xxxxx Seller shall not relieve it from be deemed to have made any liability that it may warranty of any kind, express or implied, of the quality of water being sold and delivered, the Buyer having had a full opportunity to examine the quality of water by its professional consultants prior to the execution of this Agreement. The provisions of this paragraph and Agreement have to Xxxxxx except been negotiated and, to the extent Xxxxx is materially prejudiced or otherwise forfeit substantive rights or defenses by reason of such failure)stated, and Xxxxx shall assume the defense of such action, including the employment of counsel foregoing provisions are intended to be chosen a complete exclusion and negation of any prior representations or any warranties by Xxxxx the Seller with respect to be reasonably satisfactory to Xxxxxx, and payment the quality of expenses. Xxxxxx shall have the right to employ Xxxxx' or their own counsel in any such case, but the fees and expenses of such counsel shall be at Xxxxxx expense, unless the employment of such counsel shall have been authorized in writing water service provided by Xxxxx in connection with the defense of such action, or Xxxxx shall not have employed counsel to take charge of the defense of such action, or counsel employed by Xxxxx shall not be diligently defending such action, or Berens shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Xxxxx, this Agreement or that representation of Xxxxxx by the same counsel would be inappropriate under applicable standards of professional conduct due might arise pursuant to actual any law now or potential differing interests between them (hereinafter in which case Xxxxx shall not have the right to direct the defense of such action on behalf of Xxxxxx)effect or otherwise, in any of which event such fees and expenses shall be borne by Xxxxx. Anything in this paragraph to the contrary notwithstanding, Xxxxx shall not be liable for any settlement of, or any expenses incurred with respect to, any such claim or action effected without Xxxxx' written consent, which consent shall not be unreasonably withheld. Xxxxx shall not, without the prior written consent of Xxxxxx effect any settlement of any proceeding in respect of which Xxxxxx is a party and indemnity has been sought hereunder unless such settlement includes an unconditional release of Xxxxxx from all liability on claims that are the subject matter of such proceedingexcept as expressly set forth herein.

Indemnification by Xxxxx. Xxxxx recognizes that the -------------------------- Exchange being conducted with Xxxxxx is basedHecla shall, to a material degreenotwithstanding any termination of this Agreement, upon the representations and warranties of Xxxxx as set forth and contained herein and Xxxxx hereby agrees to indemnify and hold harmless Xxxxxx the Holders, their respective officers, directors, managers, employees and affiliates, each Person that controls any Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, managers and employees of each such controlling Person (collectively, the “Holders Indemnified Parties”), to the full extent permitted by applicable law, from and against any and all losses, claims, damages, costsliabilities, costs (including, without limitation, reasonable costs of preparation and reasonable attorneys’ and reasonable expert witnesses’ fees) and expenses (collectively, “Losses”) (as determined by a court of competent jurisdiction in a final judgment not subject to appeal or review), to which such Holders Indemnified Parties may become subject under the Securities Act or otherwise, arising out of or relating to any violation of securities laws or untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or expenses arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (including reasonable attorney's fees) arising as a result in the case of any breach Prospectus or form of representation prospectus or warranty or omission made herein by Xxxxx. If any action is brought against Xxxxxx supplement thereto, in respect of which indemnity may be sought against Xxxxx pursuant to the foregoing paragraph, Xxxxxx shall promptly notify Xxxxx in writing light of the institution of such action (but the omission to so notify Xxxxx shall circumstances under which they were made) not relieve it from any liability that it may have to Xxxxxx misleading, except to the extent extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding any Holder furnished in writing to Hecla by such Holder expressly for use therein. Hecla shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which Xxxxx is materially prejudiced or otherwise forfeit substantive rights or defenses by reason of such failure), and Xxxxx shall assume the defense of such action, including the employment of counsel to be chosen by Xxxxx to be reasonably satisfactory to Xxxxxx, and payment of expenses. Xxxxxx shall have the right to employ Xxxxx' or their own counsel in any such case, but the fees and expenses of such counsel shall be at Xxxxxx expense, unless the employment of such counsel shall have been authorized in writing by Xxxxx aware in connection with the defense transactions contemplated by this Agreement. Such indemnity shall remain in full force and effect regardless of such action, any investigation made by or Xxxxx shall not have employed counsel to take charge of the defense of such action, or counsel employed by Xxxxx shall not be diligently defending such action, or Berens shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Xxxxx, or that representation of Xxxxxx by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case Xxxxx shall not have the right to direct the defense of such action on behalf of Xxxxxx)any Holder, in the directors, managers and officers of any of which event such fees and expenses shall be borne by Xxxxx. Anything in this paragraph to the contrary notwithstanding, Xxxxx shall not be liable for any settlement ofHolder, or any expenses incurred with respect to, any such claim or action effected without Xxxxx' written consent, which consent shall not be unreasonably withheld. Xxxxx shall not, without the prior written consent of Xxxxxx effect any settlement controlling Person of any proceeding in respect of which Xxxxxx is a party Holder, and indemnity has been sought hereunder unless such settlement includes an unconditional release of Xxxxxx from all liability on claims that are shall survive the subject matter transfer of such proceedingsecurities held by any Xxxxxx.