asset acquisitions - Jackson Walker LLP

(c) Notwithstanding the foregoing, if an Indemnified Person determines in good faiththat there is a reasonable probability that a Third-Party Claim may adversely affect it or itsRelated Persons other than as a result of monetary damages for which it would be entitled toindemnification under this Agreement, the Indemnified Person may, by notice to theIndemnifying Person, assume the exclusive right to defend, compromise, or settle suchThird-Party Claim, but the Indemnifying Person will not be bound by any determination ofany Third-Party Claim so defended for the purposes of this Agreement or any compromise orsettlement effected without its Consent (which may not be unreasonably withheld).(d) Notwithstanding the provisions of Section 13.4, Seller and each Shareholder herebyconsent to the non-exclusive jurisdiction of any court in which a Proceeding in respect of aThird-Party Claim is brought against any Buyer Indemnified Person for purposes of anyclaim that a Buyer Indemnified Person may have under this Agreement with respect to suchProceeding or the matters alleged therein, and agree that process may be served on Seller andShareholders with respect to such a claim anywhere in the world.(e) With respect to any Third-Party Claim subject to indemnification under this Article11: (i) both the Indemnified Person and the Indemnifying Person, as the case may be, shallkeep the other Person fully informed of the status of such Third-Party Claims and any relatedProceedings at all stages thereof where such Person is not represented by its own counsel,and (ii) the parties agree (each at its own expense) to render to each other such assistance asthey may reasonably require of each other and to cooperate in good faith with each other inorder to ensure the proper and adequate defense of any Third-Party Claim.(f) With respect to any Third-Party Claim subject to indemnification under this Article11, the parties agree to cooperate in such a manner as to preserve in full (to the extentpossible) the confidentiality of all Confidential Information and the attorney-client andwork-product privileges. In connection therewith, each party agrees that: (i) it will use itsBest Efforts, in respect of any Third-Party Claim in which it has assumed or participated inthe defense, to avoid production of Confidential Information (consistent with applicable lawand rules of procedure), and (ii) all communications between any party hereto and counselresponsible for or participating in the defense of any Third-Party Claim shall, to the extentpossible, be made so as to preserve any applicable attorney-client or work-product privilege.COMMENTIt is common to permit an indemnifying party to have some role in the defense of theclaim. There is considerable room for negotiation of the manner in which that role isimplemented. Because the buyer is more likely to be an indemnified party than anindemnifying party, the Model Agreement provides procedures that are favorable to theindemnified party.The indemnified party normally will be required to give the indemnifying partynotice of third-party claims for which indemnity is sought. The Model Agreement requiressuch notice only after a proceeding is commenced, and provides that the indemnified party’sfailure to give notice does not affect the indemnifying party’s obligations unless the failure togive notice results in prejudice to the defense of the proceeding. A seller may want torequire notice of threatened proceedings and of claims that do not yet involve proceedings3148166v1- 172 -