American Home Shield 2009 Annual Report Download - page 219

such indemnity, then the Indemnifying Parties, jointly and severally, shall contribute to the amount paid or payable by such
Indemnitee as a result of such Obligation in such proportion as is appropriate to reflect (i) the relative fault of each member of the
Company Group, on the one hand, and such Indemnitee, on the other, in connection with the state of facts giving rise to such
Obligation, (ii) if such Obligation results from, arises out of, is based upon or relates to the Transactions or any Securities Offering,
the relative benefits received by each member of the Company Group, on the one hand, and such Indemnitee, on the other, from such
Transaction or Securities Offering and (iii) if required by applicable law, any other relevant equitable considerations.
(b) If for any reason the indemnity specifically provided for in Section 2(b) is unavailable or is insufficient to hold
harmless any Indemnitee from any of the Obligations covered by such indemnity, then the Indemnifying Parties, jointly and severally,
shall contribute to the amount paid or payable by such Indemnitee as a result of such Obligation in such proportion as is appropriate to
reflect (i) the relative fault of each of the members of the Company Group, on the one hand, and such Indemnitee, on the other, in
connection with the information contained in or omitted from any Related Document, which inclusion or omission resulted in the
inaccuracy or breach of or default under any representation, warranty, covenant or agreement therein, or which information is or is
alleged to be untrue, required to be stated therein or necessary to make the statements therein not misleading, (ii) the relative benefits
received by the members of the Company Group, on the one hand, and such Indemnitee, on the other, from such Transaction or
Securities Offering and (iii) if required by applicable law, any other relevant equitable considerations.
(c) For purposes of Section 3(a), the relative fault of each member of the Company Group, on the one hand, and of an
Indemnitee, on the other, shall be determined by reference to, among other things, their respective relative intent, knowledge, access to
information and opportunity to correct the state of facts giving rise to such Obligation. For purposes of Section 3(b), the relative fault
of each of the members of the Company Group, on the one hand, and of an Indemnitee, on the other, shall be determined by reference
to, among other things, (i) whether the included or omitted information relates to information supplied by the members of the
Company Group, on the one hand, or by such Indemnitee, on the other, (ii) their respective relative intent, knowledge, access to
information and opportunity to correct such inaccuracy, breach, default, untrue or alleged untrue statement, or omission or alleged
omission, and (iii) applicable law. For purposes of Section 3(a) or 3(b), the relative benefits received by each member of the
Company Group, on the one hand, and an Indemnitee, on the other, shall be determined by weighing the direct monetary proceeds to
the Company Group, on the one hand, and such Indemnitee, on the other, from such Transaction or Securities Offering.
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(d) The parties hereto acknowledge and agree that it would not be just and equitable if contributions pursuant to
Section 3(a) or 3(b) were determined by pro rata allocation or by any other method of allocation that does not take into account the
equitable considerations referred to in such respective Section. No Indemnifying Party shall be liable under Section 3(a) or 3(b), as
applicable, for contribution to the amount paid or payable by any Indemnitee except to the extent and under such circumstances as
such Indemnifying Party would have been liable to indemnify, defend and hold harmless such Indemnitee under the corresponding
Section 2(a) or 2(b), as applicable, if such indemnity were enforceable under applicable law. No Indemnitee shall be entitled to
contribution from any Indemnifying Party with respect to any Obligation covered by the indemnity specifically provided for in
Section 2(b) in the event that such Indemnitee is finally determined to be guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) in connection with such Obligation and the Indemnifying Parties are not guilty of such fraudulent
misrepresentation.
4. Indemnification Procedures.
(a) Whenever any Indemnitee shall have actual knowledge of the assertion of a Claim against it, such Indemnitee shall
notify the appropriate member of the Company Group in writing of the Claim (the "Notice of Claim") with reasonable promptness
after such Indemnitee has such knowledge relating to such Claim; provided the failure or delay of such Indemnitee to give such Notice
of Claim shall not relieve any Indemnifying Party of its indemnification obligations under this Agreement except to the extent that
such omission results in a failure of actual notice to it and it is materially injured as a result of the failure to give such Notice of
Claim. The Notice of Claim shall specify all material facts known to such Indemnitee relating to such Claim and the monetary
amount or an estimate of the monetary amount of the Obligation involved if such Indemnitee has knowledge of such amount or a
reasonable basis for making such an estimate. The Indemnifying Parties shall, at their expense, undertake the defense of such Claim
with attorneys of their own choosing reasonably satisfactory in all respects to such Indemnitee, subject to the right of such Indemnitee
to undertake such defense as hereinafter provided. An Indemnitee may participate in such defense with counsel of such Indemnitee's
choosing at the expense of the Indemnifying Parties. In the event that the Indemnifying Parties do not undertake the defense of the
Claim within a reasonable time after such Indemnitee has given the Notice of Claim, or in the event that such Indemnitee shall in good
faith determine that the defense of any claim by the Indemnifying Parties is inadequate or may conflict with the interest of any
Indemnitee (including without limitation, Claims brought by or on behalf of any member of the Company Group), such Indemnitee
may, at the expense of the Indemnifying Parties and after giving notice to the Indemnifying Parties of such action, undertake the
defense of the Claim and compromise or settle the Claim, all for the account of and at the risk of the Indemnifying Parties. In the
defense of any Claim against an Indemnitee, no Indemnifying Party shall, except with the prior written consent of such Indemnitee,
consent to entry of any judgment or enter
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