INDEMNIFYING PARTY ASSUMES THE
DEFENSE OF SUCH CLAIM, THE INDEMNIFIED PARTY AGREES TO REASONABLY COOPERATE IN
SUCH DEFENSE SO LONG AS THE INDEMNIFIED PARTY IS NOT MATERIALLY PREJUDICED
THEREBY. SO LONG AS THE INDEMNIFYING PARTY IS CONDUCTING THE DEFENSE OF SUCH
CLAIM ACTIVELY AND DILIGENTLY, THE INDEMNIFIED PARTY MAY RETAIN SEPARATE
CO-COUNSEL AT ITS SOLE COST AND EXPENSE AND MAY PARTICIPATE IN THE DEFENSE OF
SUCH CLAIM, AND NEITHER ANY INDEMNIFYING PARTY NOR ANY INDEMNIFIED PARTY WILL
CONSENT TO THE ENTRY OF ANY JUDGMENT OR ENTER INTO ANY SETTLEMENT WITH RESPECT
TO SUCH CLAIM WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER, WHICH CONSENT WILL
NOT BE UNREASONABLY WITHHELD (PROVIDED THAT SUCH CONSENT SHALL BE GRANTED IN
CONNECTION WITH ANY SETTLEMENT (I) CONTAINING A FULL RELEASE OF THE PARTY FROM
WHOM SUCH CONSENT IS SO REQUESTED AND (II) IN THE CASE OF A CONSENT FROM AN
INDEMNIFIED PARTY, INVOLVING ONLY MONETARY DAMAGES). IN THE EVENT THE
INDEMNIFYING PARTY DOES NOT OR CEASES TO CONDUCT THE DEFENSE OF SUCH CLAIM
ACTIVELY AND DILIGENTLY, (X) THE INDEMNIFIED PARTY MAY DEFEND AGAINST, AND, WITH
THE PRIOR WRITTEN CONSENT OF THE INDEMNIFYING PARTY (WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD), CONSENT TO THE ENTRY OF ANY JUDGMENT OR ENTER INTO ANY
SETTLEMENT WITH RESPECT TO, SUCH CLAIM, (Y) THE INDEMNIFYING PARTY WILL
REIMBURSE THE INDEMNIFIED PARTY PROMPTLY AND PERIODICALLY FOR THE COSTS OF
DEFENDING AGAINST SUCH CLAIM, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES
AND (Z) THE INDEMNIFYING PARTY WILL REMAIN RESPONSIBLE FOR ANY LOSSES THE
INDEMNIFIED PARTY MAY SUFFER AS A RESULT OF SUCH CLAIM TO THE FULL EXTENT
PROVIDED IN THIS §6.
6.7.
INFORMATION. EACH PARTY HEREBY AGREES TO PROVIDE TO THE OTHER
PARTIES ON REQUEST ALL INFORMATION AND DOCUMENTATION REASONABLY NECESSARY TO
SUPPORT AND VERIFY ANY LOSSES WHICH GIVE RISE TO A CLAIM FOR INDEMNIFICATION
PURSUANT TO THIS §6 AND TO PROVIDE REASONABLE ACCESS TO ALL BOOKS, RECORDS AND
PERSONNEL IN THEIR POSSESSION OR UNDER THEIR CONTROL WHICH WOULD HAVE A BEARING
ON SUCH CLAIM.
7.
MISCELLANEOUS.
7.1.
PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. NO PUBLIC
ANNOUNCEMENT, PRESS RELEASE, OR OTHER PUBLICITY REGARDING THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE MADE PRIOR TO OR AFTER THE DATE OF
THIS AGREEMENT WITHOUT THE PRIOR WRITTEN APPROVAL OF THE OTHER PARTIES FOLLOWING
AN OPPORTUNITY TO REVIEW SUCH PROPOSED ANNOUNCEMENT OR RELEASE. NOTWITHSTANDING
THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL PRECLUDE OR PREVENT ANY PARTY
FROM MAKING ANY PUBLIC ANNOUNCEMENT OR FILING THAT THE DISCLOSING PARTY BELIEVES
IN GOOD FAITH IS REQUIRED FOR IT TO COMPLY WITH BY APPLICABLE LAW (IN WHICH CASE
THE DISCLOSING PARTY WILL PROVIDE THE OTHER PARTIES WITH THE OPPORTUNITY TO
REVIEW IN ADVANCE THE DISCLOSURE), INCLUDING APPLICABLE FEDERAL OR STATE
SECURITIES LAWS OR ANY RULES OF A STOCK EXCHANGE UPON WHICH ANY SHARES OF SUCH
PARTY ARE LISTED FOR TRADING.
25
7.2.
ENTIRE AGREEMENT.
THIS AGREEMENT, TOGETHER WITH THE
NON-DISCLOSURE AGREEMENT, THE SUPPLY AGREEMENT AND ANY SIDE LETTERS OR
INSTRUMENTS RELATED THERETO, AND CLOSING DOCUMENTS, CONSTITUTES THE ENTIRE