Claim Procedures. (a) For purposes of this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by a third party (a “Third Party Claim”) against it, such Indemnified Party shall give notice to the Indemnifying Party of the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party. (b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates. (c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim. (d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3. (e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (Wellgistics Health, Inc.), Membership Interest Purchase Agreement (Danam Health, Inc), Membership Interest Purchase Agreement (Danam Health, Inc)
Claim Procedures. Each Person entitled to be indemnified under this Article 9 (a) For purposes of this Section 8.5each, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred Indemnitee”) agrees that after it becomes aware of facts giving rise to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by it for indemnification pursuant to this Article 9, such Indemnitee must assert its claim for indemnification under this Article 9 (each, a third party “Claim”) by providing a written notice (a “Third Party ClaimClaim Notice”) against it, such Indemnified Party shall give notice to Holdco or to the Indemnifying Party Owners’ Representative, on behalf of Owners, as applicable, depending on which Parties are allegedly required to provide indemnification protection under this Article 9 (each, an “Indemnitor”), specifying, in reasonable detail, the assertion nature and basis for such Claim and copies of such Third Party Claim; provided that all documents and a summary of all other information reasonably available in connection therewith. Notwithstanding the foregoing, an Indemnitee’s failure to notify the Indemnifying Party send or delay in sending a Claim Notice will not relieve the Indemnifying Party of any Indemnitor from liability that it may have hereunder with respect to any Indemnified Party, such Claim except in the event and only to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim Indemnitor is materially prejudiced by the Indemnified Party’s such failure to give such noticeor delay. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party The Indemnitor shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then have thirty (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (1030) days after the Indemnified Party’s notice is given, give its receipt of such notice to the Indemnified Party respond in writing to a Claim that is a third party claim. Indemnitee shall provide all information and copies of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound all documents reasonably requested by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises Indemnitor and shall reasonably cooperate with Indemnitor in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party Indemnitor does not notify the Indemnified Party respond to a third-party Claim Notice within such thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim30)-day period, the amount of such claim Indemnitor shall be conclusively deemed a liability of to have rejected such Claim, in which case the Indemnifying Party hereunder. If the Indemnifying Party Indemnitee shall object in writing be free to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement pursue such remedies as may be available to the objection of Indemnitee on the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as terms and subject to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall governAgreement.
Appears in 3 contracts
Samples: Contribution Agreement (Nutex Health, Inc.), Contribution Agreement (Nutex Health, Inc.), Contribution Agreement (Nutex Health, Inc.)
Claim Procedures. (a) For purposes In order for a Group Company Indemnified Party or a FCB Indemnified Party (any of this Section 8.5them, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” and ”) to duly make a valid claim with respect to any of the party against whom occurrences specified in Section 9.2 or Section 9.3, the Indemnified Party must (promptly following the first date following the Closing Date on which such claim Indemnified Party has knowledge of facts, matters or circumstances from which it is asserted reasonably apparent that such an occurrence is hereinafter referred likely to as have occurred) provide written notice to FCB (for claims made by Group Company Indemnified Parties) or to TopCo (for claims made by FCB Indemnified Parties) (the recipient of such notice, the “Indemnifying Party.” Promptly after receipt by an ”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 9.2 or Section 9.3 which the Indemnified Party of notice alleges to have occurred, a description of the assertion facts and circumstances giving rise to such occurrences, the estimated amount of Losses imposed, incurred, suffered or asserted in connection therewith or arising therefrom (to the extent then ascertainable), and a claim description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”). The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Proceeding asserted or threatened against, the Indemnified Party by a third party (a “Third Party Claim”):
(i) against it, such The Indemnified Party shall give notice provide the Claim Notice to the Indemnifying Party not later than the 10th Business Day following the Indemnified Party’s receipt of the assertion of such Third Party Claim; provided , and in any event not later than the 10th Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding that the failure to notify the Indemnifying Party will timely provide a Claim Notice shall not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, its obligations hereunder except to the extent that such failure has a material prejudicial effect on the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice defenses or other rights available to the Indemnifying Party pursuant with respect to Section 8.5(a) of the assertion of a such Third Party Claim.
(ii) During the period ending on the earlier of the 30th calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth calendar day preceding the date on which an appearance is required to be made before a court, then arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to notify the Indemnified Party of its election to assume and control the defense of such the Third Party Claim, unless the Claim Notice states that the Indemnified Party has determined in good faith that (i) the Third Party Claim seeks an injunction or other equitable or non-monetary relief against the Indemnified Party (other than injunctive, equitable or non-monetary relief that is incidental to monetary damages as the primary relief sought), (ii) the Third Party Claim arises in connection with any criminal matter or (iii) there is a reasonable probability that the Third Party Claim may materially adversely affect the Indemnified Party or its Affiliates other than as a result of monetary damages.
(A) In the event that the Indemnifying Party is entitled to and duly and timely makes such election, the Indemnifying Party shall notdefend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, so long as it diligently conducts arbitration, litigation and appellate strategy relating to the Third Party Claim. The Indemnified Party shall be entitled but not obligated to participate in any such defensedefense and to employ separate counsel of its choosing for such purpose; provided, that the fees and expenses shall be liable borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 9.4; provided, further, that, if, in the reasonable advice of counsel to the Indemnified Party, there are defenses available to the Indemnified Party under this Article VIII that are different from or Article VII for any fees of other counsel or any other expenses with respect in addition to those available to the defense Indemnifying Party, then the reasonable fees and expenses of such Third Party Claim, in each case, subsequently incurred by one external law firm to the Indemnified Party shall be paid in connection accordance with Section 9.4(b)(iv)(A); provided, further, that, if (i) the defense Indemnified Party and Indemnifying Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of such Third Party Claim, other than reasonable costs of investigation. If both parties by the Indemnifying same counsel would be inappropriate due to actual or potential conflicts between them or (ii) the Indemnified Party assumes the defense of a Third Party ClaimClaim after the Indemnifying Party has failed diligently to pursue a Third Party Claim it has assumed, then as provided in the first sentence of this Section 9.4(b)(ii)(A), the Indemnifying Party shall bear the reasonable and documented out-of-pocket costs and expenses of one additional counsel (in addition to, but only to the extent necessary, one local counsel) which shall represent all Indemnified Parties arising out of the same or similar set of circumstances in connection with such defense. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall be entitled to settle such claims; provided, that, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle, compromise or cease to defend such Third Party Claim if such settlement, compromise or cessation would result in (i) such assumption any monetary liability of the Indemnified Party that will conclusively establish for purposes of this Agreement that not be promptly paid or reimbursed by the claims made in that Third Party Claim are within the scope of and subject to indemnification, and Indemnifying Party; (ii) no compromise the imposition of a consent order, injunction or settlement decree that would materially restrict the future activity or conduct of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless Party or any of its Affiliates; (Aiii) there is no a finding or admission of any a material violation of applicable Legal Requirements Law or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full Person by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to any of its Affiliates; (iv) a finding or admission that would have an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to adverse effect on other claims made or threatened against the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, its Affiliates; or (iiiv) the claim for indemnification relates to any material non-monetary condition or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer obligation being imposed on any Indemnified Party or any of its Affiliates.
(cB) With respect If the Indemnifying Party (i) is not entitled to any or does not duly and timely make such election, or (ii) after timely making such election, fails to take reasonable steps to defend diligently the Third Party Claim subject within 10 Business Days after its receipt of written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall be entitled but not obligated to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 9.4(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third Party Claim shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or will seek indemnification under this Article VIII: hereunder with respect to such matter. Notwithstanding anything in the foregoing to the contrary, the Indemnifying Party shall have no liability with respect to a Third Party Claim settled without its prior written consent (iwhich shall not unreasonably be withheld, conditioned or delayed).
(iii) both the The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall keep consider such comments in good faith.
(iv) All reasonable and documented out-of-pocket legal fees, costs and expenses actually incurred or suffered by the other Person fully informed of Indemnifying Party and the status of such Indemnified Party in connection with investigating and defending, and cooperating in the investigation and defense of, the Third Party Claim (“Third Party Claim Expenses”) shall be paid as follows:
(A) Any Third Party Claim Expenses actually incurred or suffered by the Indemnified Party (1) prior to or in the absence of the due and any related claims at all stages thereof where timely making of the election described in Section 9.4(b)(ii)(A), (2) under the circumstances described in the proviso to the second sentence of such Person Section, (3) under the circumstances described in Section 9.4(b)(ii)(B) or (4) in compliance with Section 9.4(b)(iii) shall constitute Losses for which the Indemnified Party shall be entitled to be reimbursed if the Indemnified Party is not represented by its own counseldetermined pursuant to a Final Determination to be entitled to be indemnified, held harmless and (ii) reimbursed pursuant to this Article IX in respect of the Parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(dB) In the event an Indemnified Third Party has a claim hereunder that does not involve a claim being asserted against Claim Expenses actually incurred or sought to be collected suffered by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), be reimbursed by the Indemnified Party shall have fifteen (15) calendar days if the Indemnified Party is determined pursuant to respond a Final Determination not to be entitled to be indemnified, held harmless and reimbursed pursuant to this Article IX in a written statement to the objection respect of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3Third Party Claim.
(eC) Notwithstanding Third Party Claim Expenses not addressed by Section 9.4(b)(iv)(A) or (B) shall be paid by the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall governPerson by which they were incurred.
Appears in 3 contracts
Samples: Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.)
Claim Procedures. (a) For purposes Except as set forth in Section 5.14 with respect to Tax Claims, in order for a Buyer Indemnified Party or a Seller Indemnified Party (any of this Section 8.5them, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” and ”) to duly make a valid claim under Section 8.2 or Section 8.3, the party against whom Indemnified Party must (promptly following the first date following the Closing Date on which such claim Indemnified Party has knowledge of facts, matters or circumstances from which it is asserted reasonably apparent that such an occurrence is hereinafter referred likely to as have occurred) provide written notice to Seller (for claims made by Buyer Indemnified Parties) or to Buyer (for claims made by Seller Indemnified Parties) (the recipient of such notice, the “Indemnifying Party.” Promptly after receipt by an ”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 8.2 or Section 8.3 which the Indemnified Party of notice alleges to have occurred, a description of the assertion facts and circumstances giving rise to such occurrences, the estimated amount of Losses imposed, incurred, suffered or asserted in connection therewith or arising therefrom (to the extent then ascertainable), and a claim description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”). The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Action asserted or threatened against the Indemnified Party by a third party (a “Third Third-Party Claim”):
(i) against it, such The Indemnified Party shall give notice provide the Claim Notice to the Indemnifying Party not later than the fifth calendar day following the Indemnified Party’s receipt of the assertion of such Third Third-Party Claim, and in any event not later than the 10th Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that the failure to notify the Indemnifying Party will timely provide a Claim Notice shall not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, its obligations hereunder except to the extent that such failure has a material prejudicial effect on the defense or resolution of the Third-Party Claim.
(ii) During the period ending on the earlier of the 30th calendar day following the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) receipt of the assertion of Claim Notice and the 10th calendar day preceding the date on which an appearance is required to be made before a Third Party Claimcourt, then arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to notify the Indemnified Party of its election to assume and control the defense of the Third-Party Claim, unless the Claim Notice states that the Indemnified Party has determined in good faith that (A) the Third-Party Claim involves a criminal proceeding, Action, indictment, allegation or investigation; (B) the Third-Party Claim seeks an injunction or other equitable or non-monetary relief against the Indemnified Party or an Affiliate of the Indemnified Party; (C) the Losses sought in connection with such Third Third-Party Claim are claimed in good faith or are otherwise reasonably expected by Buyer to exceed the Cap Amount (or the unused portion thereof); (D) any insurer requires, as a condition to an Indemnified Party’s eligibility to recover insurance proceeds on account of such Third-Party Claim, that such insurer control the matter; (E) the Third-Party Claim involves any Significant Supplier which is also a current supplier of the Company at the time that such Third-Party Claim is asserted or threatened against the Indemnified Party; (F) a court of competent jurisdiction has ruled that the Indemnifying Party is not reasonably, diligently or in good faith conducting a defense of such Third-Party Claim; (G) the Third-Party Claim relates to Intellectual Property Rights held or used by the Indemnified Party; or (H) there is a reasonable probability that the Third-Party Claim may adversely affect the Indemnified Party or its Affiliates other than as a result of monetary damages.
(A) In the event that the Indemnifying Party is entitled to and duly and timely makes such election, such election shall constitute the Indemnifying Party’s conclusive acknowledgment that the Indemnified Party is entitled to be indemnified, defended, held harmless and reimbursed in accordance with this Article VIII for, from and against the Third-Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to defend the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to by appropriate proceedings and shall have the defense of such Third sole power (as between the Indemnifying Party Claim, in each case, subsequently incurred by and the Indemnified Party in connection with and their respective Affiliates) to direct and control such defense and the defense of such Third settlement, arbitration, litigation and appellate strategy relating to the Third-Party Claim. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose; provided, other than reasonable costs of investigation. If that, if the Indemnifying Indemnified Party assumes the defense of a Third Third-Party ClaimClaim in accordance with the conditions and requirements of Section 8.4(b)(ii)(B) after the -84- Indemnifying Party has failed diligently to pursue a Third-Party Claim it has assumed, then (i) such assumption will conclusively establish for purposes as provided in the first sentence of this Agreement Section 8.4(b)(ii)(A), the Indemnifying Party shall bear the reasonable and documented out-of-pocket costs and expenses of one additional counsel (in addition to, but only to the extent necessary, one local counsel) which shall represent all Indemnified Parties arising out of the same or similar set of circumstances in connection with such defense. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall be entitled to settle such claims; provided, that the claims made in that Third Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle, compromise or cease to defend such Third-Party Claim are within the scope of and subject to indemnificationif such settlement, and (ii) no compromise or settlement cessation would result in: (I) any monetary liability of such Third the Indemnified Party Claims may that will not be effected paid or reimbursed by the Indemnifying Party without Party; (II) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party’s consent unless Party or any of its Affiliates; (AIII) there is no a finding or admission of any a violation of applicable Legal Requirements Law or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full Person by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to any of its Affiliates; (IV) a finding or admission that would have an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to adverse effect on other claims made or threatened against the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise of its Affiliates; (V) any change to Intellectual Property Rights held or settlement effected used by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, ; or (iiiVI) the claim for indemnification relates to any non-monetary condition or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer obligation being imposed on any Indemnified Party or any of its Affiliates.
(cB) With If the Indemnifying Party (I) is not entitled to or does not duly and timely make such election, or (II) after timely making such election, fails to take reasonable steps to defend diligently the Third-Party Claim within 10 Business Days after its receipt of written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall be entitled but not obligated to assume and control such defense from the Indemnifying Party upon provision of written notice informing the Indemnifying Party of such election, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 8.4(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third-Party Claim shall not otherwise be affected by such election. Notwithstanding anything in the foregoing to the contrary, the Indemnifying Party shall have no liability with respect to any Third a Third-Party Claim subject to indemnification under this Article VIII: settled without its prior written consent (iwhich shall not unreasonably be withheld, conditioned or delayed).
(iii) both the The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third-Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third-Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third-Party Claims. The Person controlling the defense of a Third-Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, shall keep to make comments to the other Person fully informed of the status of materials filed or submitted in such Third Party Claim and any related claims at all stages thereof where such Person is not represented by its own counseldefense, and (ii) the Parties agree (each at its own expense) to render to each other shall consider such assistance as they may reasonably require of each other and to cooperate comments in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claimfaith.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Biohaven Research Ltd.), Membership Interest Purchase Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Claim Procedures. Each Person entitled to indemnification under this Article 16 (a) For purposes of this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an the “Indemnified Party” and ”) shall give written notice setting forth in reasonable detail the party against whom such claim is asserted is hereinafter referred basis of any Claim to as the Party required to provide indemnification (the “Indemnifying Party.” Promptly ”) promptly, but not later than fifteen (15) days, after receipt by an such Indemnified Party becomes aware of a Claim or receives written notice of the assertion of any Claim asserted by any person who is not a claim by Party (or a third party successor to a Party) to this Agreement (a “Third Third-Party Claim”) against it, such Indemnified Party shall that is or may give notice rise to the Indemnifying Party of the assertion of such Third Party Claiman indemnification claim; provided that the failure of the Indemnified Party to notify the Indemnifying Party will give notice as provided in this Section 16.7 shall not relieve the any Indemnifying Party of any liability that it may have to any Indemnified Partyits obligations under Section 16.7, except to the extent that such failure prejudices the rights of any such Indemnifying Party. The Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, may elect to assume the defense of such Third any Third-Party Claim, with Claim or any litigation resulting therefrom; provided that counsel reasonably satisfactory to the Indemnified Party. After notice from for the Indemnifying Party to the Indemnified Party of its election to assume Party, who shall in such case conduct the defense of such Third Party Claimclaim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred approved by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnificationwhose approval shall not unreasonably be withheld), and (ii) no compromise or settlement of the Indemnified Party may participate in such Third Party Claims may be effected by the Indemnifying Party without defense at the Indemnified Party’s consent unless (A) there is no finding or admission expense, and may retain counsel of any violation of applicable Legal Requirements or any violation of its choice at its own expense; provided further that the rights of any Indemnified Party; (B) Party shall have the sole relief provided is monetary damages that are paid in full by right to employ, at the Indemnifying Party; and (C) ’s expense, one firm of counsel of its choice, to represent the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does notif, within ten (10) days after in the Indemnified Party’s notice is givenreasonable judgment, give notice to the Indemnified Party there exists a conflict of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both interest between the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If if the Indemnifying Party does (1) elects not to defend, compromise or settle a Third-Party Claim, (2) fails to notify the Indemnified Party within thirty ten (3010) calendar days from the date Business Days of its election to defend after receipt of such written notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed Third-Party Claim, or (3) having timely elected to defend a liability of the Indemnifying Third-Party hereunder. If the Indemnifying Party shall object Claim, fails adequately to prosecute or pursue such defense, then in writing to any claim made in accordance with this Section 8.5(d), each case the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to may defend such Third-Party Claim on behalf of and for the objection account and risk of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to The Indemnifying Party, in the defense of any claimThird-Party Claim, shall not, except with the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights prior written approval of the respective Parties Indemnified Party, consent to entry of any judgment or entry into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party of a release from all liability with respect to each thereto. The Indemnified Party shall not settle or compromise any such claim without the prior written approval of the Indemnifying Party, which approval shall not be unreasonably withheld. The Indemnified Party shall make its employees available and furnish such claims. If information regarding itself or the Parties should so agree, a memorandum setting forth such agreement Claim in question as the Indemnifying Party may reasonably request in writing and as shall reasonably be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict required in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict connection with the provisions defense of Article VII with respect to the matters covered therein, the provisions of Article VII shall governa Third-Party Claim.
Appears in 2 contracts
Samples: Option Agreement (Venoco, Inc.), Option Agreement (Denbury Resources Inc)
Claim Procedures. (a) For purposes of this Section 8.5, If a party making a claim for indemnity hereto seeks indemnification under Section 8.1 is hereinafter referred to as an “this Article X, such party (the "Indemnified Party” and ") shall give written notice to the other party against whom such (the "Indemnifying Party") specifying in reasonable detail the basis for the claim; or if any suit, action or claim is brought or asserted is hereinafter referred to as by any third party which, if adversely determined, could entitle the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of to indemnity, the assertion of a claim by a third party (a “Third Party Claim”) against it, such Indemnified Party shall give notice to promptly notify the Indemnifying Party of the assertion same in writing, specifying in detail the basis of such Third Party Claim; provided that claim and the failure facts pertaining thereto (in either case, a "Claim Notice").
(b) In relation to notify a third party claim, the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Partyshall, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claimat its own expense, then the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishesshall wish, to assume the defense or settlement of any such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Partyclaim or proceeding. After notice from If the Indemnifying Party elects to assume control of such defense or settlement, the Indemnifying Party shall within 30 days (or sooner, if the nature of the matter so requires) notify the Indemnified Party of its election intent to assume do so, and the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with all reasonable requests, in the compromise of, or defense of against, such Third Party Claim, claim or proceeding and shall make available to the Indemnifying Party shall notany books, so long as it diligently conducts records, other documents or personnel within its control that are necessary or appropriate for such defense. If the Indemnifying Party elects to assume control of such defense or settlement, be liable it shall conduct such defense or settlement in a manner reasonably satisfactory and effective to protect the Indemnified Party under this Article VIII fully. No compromise or Article VII for any fees of other counsel settlement shall be agreed or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by made without the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigationParty's written consent which consent will not be unreasonably withheld. If the Indemnifying Party assumes the defense of a Third claim, the Indemnified Party Claimshall have the right to employ its own counsel and such counsel may participate in such action, then (i) such assumption will conclusively establish for purposes of this Agreement that but the claims made in that Third Party Claim are within the scope of fees and subject to indemnification, and (ii) no compromise or settlement expenses of such Third Party Claims may counsel shall be effected by at the Indemnifying Party without expense of the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election not elect to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by in a manner reasonably satisfactory to protect the Indemnified Party fully, the Indemnified Party may engage independent counsel to assume the defense and may contest, pay, settle or compromise any such claim on such terms and conditions as the Indemnified Party may determine. The reasonable fees and disbursements of the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not 's counsel shall constitute amounts for which indemnification shall be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliatesmade hereunder.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has of any claim under Article X not involving a claim hereunder that does not involve a third party claim being asserted against or sought to be collected by a third partyfrom such Indemnified Party, the Indemnified Party shall deliver the Claim Notice of such claim with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify disputes the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes liability with respect to such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), and the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt proceed in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each negotiate a resolution of such claims. If the Parties should so agreedispute, a memorandum setting forth and if not resolved through negotiations, such agreement dispute shall be prepared and signed resolved by all Parties. If the Parties do not so agree, the Parties will resolve the conflict litigation in accordance with Section 11.3an appropriate court of competent jurisdiction.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Claim Procedures. (a) For purposes Each Indemnified Party agrees that after it becomes aware of this Section 8.5, a party making facts giving rise to a claim by it for indemnity indemnification pursuant to this ARTICLE VIII, such Indemnified Party shall assert its claim for indemnification under Section 8.1 is hereinafter referred this ARTICLE VIII (each a “Claim”) by providing a written notice (a “Claim Notice”) to as the Indemnifying Party specifying, in reasonable detail, the nature and basis for such Claim and including copies of all materially relevant documentation regarding any third party claim. Notwithstanding the foregoing, an “Indemnified Party” ’s failure to send or delay in sending a Claim Notice will not relieve the Indemnifying Party from Liability hereunder with respect to such Claim except to the extent and only to the party against whom extent the Indemnifying Party is materially prejudiced by such claim failure or delay and provided, as applicable, that such notice is asserted delivered prior to the Survival Date (except with respect to the Excluded Representations).
(b) If any Proceeding is hereinafter referred begun, made or instituted by a third party, other than a Tax Claim, as a result of which an Indemnifying Party may become obligated to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by a third party (a “Third Party Claim”) against ithereunder, such Indemnified Party shall give written notice to the Indemnifying Party of the assertion of such Third Party Claim; provided that the failure to notify the Party. The Indemnifying Party will agrees to defend, contest or otherwise protect the Indemnified Party against any Proceeding at its sole cost and expense. The Indemnified Party shall have the right, but not relieve the Indemnifying Party of any liability that it may have obligation, to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that participate at its own expense in the defense thereof by counsel of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to choice and shall in any event cooperate with and assist the Indemnifying Party pursuant to Section 8.5(a) the extent reasonably possible. If the Indemnifying Party fails timely to defend, contest or otherwise protect against such Proceeding, the Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and the Indemnified Party shall be entitled to recover the entire cost thereof from the Indemnifying Party, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the result of the assertion of a Third Party Claimsuch Proceeding, then and the Indemnifying Party shall be entitled to participate bound by any determination made in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to Proceeding or any compromise or settlement effected by the Indemnified Party. After notice from If the Indemnifying Party to the Indemnified Party of its election to assume assumes the defense of such Third Party Claimany Proceeding, (A) the Indemnifying Party shall not, so long as it diligently conducts such defense, not be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claimthereof, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (iiB) no compromise or settlement of such Third Party Claims claims may be effected by the Indemnifying Party without the Indemnified Party’s consent (which shall not be unreasonably withheld or delayed) unless (Ai) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; Law and (Bii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; , and (C) the Indemnified Party has will have no liability Liability with respect to any compromise or settlement of such claims effected without its consent.
(c) If any claim, demand, suit, action, audit, litigation, proceeding for or with respect to Taxes of which indemnity may be sought against the Seller (a “Tax Claim”) is asserted in writing against the Purchaser, the Purchaser shall notify the Seller of such Tax Claim within fifteen (15) Business Days of receipt thereof, or such earlier time if necessary in order to allow the Seller to timely respond to such Tax Claim and shall give the Seller such information with respect thereto as the Seller may reasonably request; provided, however, that the Purchaser’s failure to give such prompt notice shall not relieve the Seller of any of their indemnification obligations under this ARTICLE VIII unless such failure materially prejudices the Seller’s ability to respond to such Tax Claim. The Seller may discharge, at any time, their indemnification obligations under this ARTICLE VIII with respect to such compromise or settlementTax Claim by paying to the Purchaser the amount payable (and for which indemnification may be sought) pursuant to such Tax Claim calculated as of the date of such payment. The Seller may, at their own expense, participate in and, upon notice to Purchaser, assume the defense of any such Tax Claim. If notice is given the Seller assumes such defense, the Seller shall have the sole discretion as to the conduct of such defense; provided that, (i) the Purchaser shall have the right (but not the duty) to observe and comment on the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Seller, (ii) to the extent that the settlement of such Tax Claim could be expected to have an Indemnifying Party adverse effect on the liability for Taxes of the assertion of Company or the Company Subsidiary with respect to any Third Party Post-Closing Tax Period, the Seller may not settle any such Tax Claim and without the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party prior written consent of the Indemnifying Party’s election Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed and (iii) the Seller shall keep the Purchaser informed of material developments relating to such Tax Claim. Whether or not the Seller chooses to defend or prosecute any claim, all of the Parties hereto shall cooperate in the defense or prosecution thereof. If the Seller elects not to assume the defense of such Third Party Claimany Tax Claim under this Section 8.5(c), then the Indemnifying Party will Purchaser shall defend such Tax Claim; provided, however, the Purchaser shall not settle or compromise any such Tax Claim without the prior written consent of the Seller, which consent shall not be bound by any determination made in such Third Party Claim unreasonably withheld, conditioned or any compromise or settlement effected by the Indemnified Party.
(b) delayed. Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the foregoing provisions of this Section 8.5 conflict with the provisions of Article VII with respect 8.5(c) or any other provision herein to the matters covered thereincontrary, the provisions Seller solely shall control all Tax Claims related to Taxes owed by, or Tax Returns filed by, a Seller Tax Group, and neither the Purchaser nor any Affiliate thereof shall be entitled to participate in any such Tax Claim; provided, however, the Seller shall inform the Purchaser of Article VII shall governany material developments of Tax Claims related to the Seller Tax Group to the extent they affect the Company or Company Subsidiary for a Post-Closing Tax Period.
Appears in 1 contract
Samples: Stock Purchase Agreement (Clean Energy Fuels Corp.)
Claim Procedures. (a) For purposes In order for a Purchaser Indemnified Party or a Seller Indemnified Party (any of this Section 8.5them, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” ”) to duly make a valid claim with respect to any of the occurrences specified in Section 9.3 or Section 9.4, the Indemnified Party must promptly (and in any event within 30 days of the party against whom identification of a claim) provide written notice to Seller Parent (for claims made by Purchaser Indemnified Parties) or to Purchaser (for claims made by Seller Indemnified Parties) (the recipient of such claim is asserted is hereinafter referred to as notice, the “Indemnifying Party.” Promptly after receipt by an ”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 9.3 or Section 9.4 which the Indemnified Party of notice alleges to have occurred, a description of the assertion facts and circumstances giving rise to such occurrences, the estimated amount of Damages actually incurred or suffered as the result thereof (to the extent then ascertainable), and a claim description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided that the failure to give such prompt written notice shall not relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses or is otherwise prejudiced by reason of such failure. The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use reasonable best efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Proceeding asserted or threatened against, the Indemnified Party by a third party (a “Third Party Claim”):
(i) against it, such The Indemnified Party shall give notice provide the Claim Notice to the Indemnifying Party promptly following the Indemnified Party’s receipt of the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will give such prompt written notice shall not relieve the Indemnifying Party of any liability that it may have to any Indemnified Partyits indemnification obligations, except and only to the extent that the Indemnifying Party demonstrates that the defense forfeits rights or defenses by reason of such Third Party Claim is prejudiced by failure.
(ii) During the Indemnified period ending on the earlier of the 30th calendar day following the Indemnifying Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) receipt of the assertion of Claim Notice and the fifth calendar day preceding the date on which an appearance is required to be made before a Third Party Claimcourt, then arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to notify the Indemnified Party of its election to assume and control the defense of the Third Party Claim; provided that the Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that seeks an injunction or other equitable relief against the Indemnified Parties.
(A) In the event that the Indemnifying Party is entitled to and duly and timely makes such election, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose; provided that the fees and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 9.5. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall be entitled to settle such claims; provided that the Indemnifying Party shall not, so long as it diligently conducts without the prior written consent of the Indemnified Party, settle, compromise or offer to settle, compromise or cease to defend such defenseThird Party Claim if such settlement, be liable to compromise or cessation would result in (v) any monetary liability of the Indemnified Party under this Article VIII that shall not be promptly paid or Article VII for any fees reimbursed by the Indemnifying Party, (w) the imposition of other counsel a consent order, injunction or decree that would materially restrict the future activity or conduct of the Indemnified Party or any other expenses with respect to the defense of such Third Party Claimits Affiliates in any material respect, in each case, subsequently incurred (x) a finding or admission of a material violation of a material Law by the Indemnified Party in connection with the defense or any of such Third Party Claimits Affiliates, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of (y) a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements that would have a material and adverse effect on other claims made or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) threatened against the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party any of the assertion of its Affiliates or (z) any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the material non-monetary condition or obligation being imposed on any Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(cB) With If the Indemnifying Party is not entitled to or does not duly and timely make such election, the Indemnified Party shall be entitled but not obligated (subject to Section 9.8 (Minimizing and Mitigating Damages)) to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 9.5(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect to any of the Third Party Claim subject shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party if the Indemnified Party is seeking or shall seek indemnification hereunder with respect to indemnification under this Article VIII: such matter. Notwithstanding anything to the contrary set forth in the foregoing sentence, the Indemnifying Party shall have no liability with respect to a Third Party Claim settled without its prior written consent.
(iiii) both the The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall keep consider such comments in good faith.
(iv) All reasonable and documented out-of-pocket legal fees, costs and expenses actually incurred or suffered by the other Person fully informed of Indemnifying Party and the status of such Indemnified Party in connection with investigating and defending, and cooperating in the investigation and defense of, the Third Party Claim (“Third Party Claim Expenses”) shall be paid as follows:
(A) Any Third Party Claim Expenses actually incurred or suffered by the Indemnified Party (x) prior to or in the absence of the due and any related claims at all stages thereof where such Person timely making of the election described in Section 9.5(b)(ii)(A), (y) under the circumstances described in Section 9.5(b)(ii)(B) or (z) in compliance with Section 9.5(b)(iii), shall constitute Damages for which the Indemnified Party shall be entitled to be reimbursed if the Indemnified Party is not represented by its own counseldetermined pursuant to a Final Determination to be entitled to be indemnified, held harmless and (ii) reimbursed pursuant to this Article IX in respect of the Parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(dB) In the event an Indemnified Third Party has a claim hereunder that does not involve a claim being asserted against Claim Expenses actually incurred or sought to be collected suffered by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), be reimbursed by the Indemnified Party shall have fifteen (15) calendar days if the Indemnified Party is determined pursuant to respond a Final Determination not to be entitled to be indemnified, held harmless and reimbursed pursuant to this Article IX in a written statement to the objection respect of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3Third Party Claim.
(eC) Notwithstanding Third Party Claim Expenses not addressed by Section 9.5(b)(iv)(A) or Section 9.5(b)(iv)(B) shall be paid by the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall governPerson by which they were incurred.
Appears in 1 contract
Claim Procedures. (a) For purposes of this Section 8.5, In order for an Indemnified Party to duly make a party making a valid claim for indemnity under Section 8.1 8.2, the Indemnified Party must (reasonably promptly following the first date following the Closing Date on which such Indemnified Party has knowledge of facts, matters or circumstances from which it is hereinafter referred reasonably apparent that such an occurrence is likely to as an “Indemnified Party” and have occurred) provide written notice to the party against whom Majority Stockholder (the recipient of such claim is asserted is hereinafter referred to as notice, the “Indemnifying Party.” Promptly after receipt by an ”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 8.2 which the Indemnified Party of notice alleges to have occurred, a description of the assertion facts and circumstances giving rise to such occurrences, the estimated amount of Losses imposed, incurred, suffered or asserted in connection therewith or arising therefrom (to the extent then ascertainable), and a claim description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”). The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Action asserted or threatened against, the Indemnified Party by a third party (a “Third Party Claim”):
(i) against it, such The Indemnified Party shall give notice provide the Claim Notice to the Indemnifying Party not later than the tenth (10th) Business Day following the Indemnified Party’s receipt of the assertion of such Third Party Claim, and in any event not later than the tenth (10th) Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided, that if either such Business Day occurs on or prior to the Closing Date, the Claim Notice shall be timely provided if it is provided not later than the Business Day following the Closing Date; and provided, further, that the failure to notify the Indemnifying Party will timely provide a Claim Notice shall not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, its obligations hereunder except to the extent that the Indemnifying Party demonstrates that such failure has a material prejudicial effect on the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) or resolution of the assertion of a Third Party Claim.
(ii) During the period ending on the earlier of the thirtieth (30th) calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth (5th) calendar day preceding the date on which an appearance is required to be made before a court, then arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to notify the Indemnified Party of its election to assume and control the defense of the Third Party Claim, unless the Claim Notice states that the Indemnified Party has determined in good faith that (1) the Third Party Claim seeks an injunction or other equitable or non-monetary relief against the Indemnified Party (other than injunctive, equitable or non-monetary relief that is incidental to monetary damages as the primary relief sought), (2) the Third Party Claim arises in connection with any criminal matter, (3) the Losses sought in connection with such Third Party Claim are reasonably likely to exceed the value of the then outstanding number of Lockup Shares or (4) there is a reasonable probability that the Third Party Claim may materially adversely affect the Indemnified Party or its Affiliates other than as a result of monetary damages.
A. In the event that the Indemnifying Party is entitled to and duly and timely makes such election, such election shall constitute the Indemnifying Party’s conclusive acknowledgment that the Indemnified Party is entitled to be indemnified, defended, held harmless and reimbursed in accordance with this Article VIII for, from and against the Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to defend the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the defense of such Third Party Claim. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose, in each case, subsequently incurred by at the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigationParty’s sole cost and expense. If the Indemnifying Party assumes shall control the defense of a any such claim, the Indemnifying Party shall be entitled to settle such claims; provided, that, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle, compromise or cease to defend such Third Party ClaimClaim if such settlement, then compromise or cessation would result in (i) such assumption any monetary liability of the Indemnified Party that will conclusively establish for purposes of this Agreement that not be promptly paid or reimbursed by the claims made in that Third Party Claim are within the scope of and subject to indemnification, and Indemnifying Party; (ii) no compromise the imposition of a consent order, injunction or settlement decree that would materially restrict the future activity or conduct of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless Party or any of its Affiliates; (Aiii) there is no a finding or admission of any a violation of applicable Legal Requirements Law or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full Person by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to any of its Affiliates; (iv) a finding or admission that would have an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to adverse effect on other claims made or threatened against the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, its Affiliates or (iiiv) the claim for indemnification relates to any non-monetary condition or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer obligation being imposed on any Indemnified Party or any of its Affiliates.
B. If the Indemnifying Party (ci) With respect is not entitled to any or does not duly and timely make such election, or (ii) after timely making such election, fails to take reasonable steps to defend diligently the Third Party Claim within ten (10) Business Days after its receipt of written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall be entitled but not obligated (subject to indemnification under this Article VIII: Section 8.6 (iMinimizing and Mitigating Losses)) both to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 8.3(b)(ii)A; provided, that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third Party Claim shall not otherwise be affected by such election. Notwithstanding anything in the foregoing to the contrary, the Indemnifying Party shall have no liability with respect to a Third Party Claim settled without its prior written consent (which shall not unreasonably be withheld, conditioned or delayed).
(iii) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall keep consider such comments in good faith.
(iv) All reasonable and documented out-of-pocket legal fees, costs and expenses actually incurred or suffered by the other Person fully informed of Indemnifying Party and the status of such Indemnified Party in connection with investigating and defending, and cooperating in the investigation and defense of, the Third Party Claim (“Third Party Claim Expenses”) shall be paid as follows:
(v) Any Third Party Claim Expenses actually incurred or suffered by the Indemnified Party (1) prior to or in the absence of the due and any related claims at all stages thereof where such Person timely making of the election described in Section 8.3(b)(ii)A, (2) under the circumstances described in Section 8.3(b)(ii)B or (3) in compliance with Section 8.3(b)(iii) shall constitute Losses for which the Indemnified Party shall be entitled to be reimbursed if the Indemnified Party is not represented by its own counseldetermined pursuant to a Final Determination to be entitled to be indemnified, held harmless and (ii) reimbursed pursuant to this Article VIII in respect of the Parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(dvi) In the event an Indemnified Third Party has a claim hereunder that does Claim Expenses not involve a claim being asserted against or sought to be collected addressed by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim Section 8.3(b)(ii)A shall be conclusively deemed a liability of paid by the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed Person by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3which they were incurred.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Claim Procedures. (a) For purposes of Any party seeking indemnification pursuant to this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an Article IX (the “Indemnified Party” and ”) shall promptly notify in writing (an “Indemnity Notice”) the other party against or parties from whom such claim indemnification is asserted is hereinafter referred to as sought (the “Indemnifying Party”) of the Indemnified Party’s assertion or a third party’s assertion of any claim with respect to which the indemnification provisions set forth in this Article relate, providing in reasonable detail the facts giving rise to such claim, a statement of the Indemnified Party’s Loss to the extent then known, and an estimate of the amount of Losses that the Indemnified Party reasonably anticipates it will suffer or incur (provided that the Indemnifying Party shall not be liable for any fees or expenses that could have been avoided before its receipt of the Indemnity Notice).” Promptly after receipt by
(b) With respect to any third party claim for which an Indemnified Party of notice of the assertion of a claim by a third party is seeking indemnification hereunder (a “Third Party Claim”) against it), such Indemnified Party shall give notice to the Indemnifying Party of the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense thereof. The Indemnifying Party may also assume the defense of such any Third Party Claim and, to with counsel selected by it. Should the extent that it wishes, Indemnifying Party so elect to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such a Third Party Claim, the Indemnifying Party shall notshall, so long as it diligently conducts such defensesubject to the other provisions of this Section 9.4, not be liable to the any Indemnified Party under this Article VIII or Article VII for any fees of other counsel legal or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the such Indemnified Party in connection with the defense thereof, absent the exceptions noted below. If the Indemnifying Party assumes such defense, each Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense (subject to the following sentence), separate from the counsel employed by the Indemnifying Party, it being understood and agreed that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and expenses of one outside counsel (and not any fees and expenses allocated to any internal counsel) employed by all Indemnified Parties (which outside counsel shall be reasonably acceptable to the Indemnifying Party) (i) for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Parties shall have failed to give notice of the Third Party Claim as provided above) or (ii) if the Indemnified Parties are advised by counsel reasonably satisfactory to the Indemnifying Party that there exists any actual or potential conflict of interests between the Indemnifying Party and the Indemnified Parties. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, other than reasonable costs and making Representatives available on a mutually convenient basis to provide additional information and explanation of investigationany material provided hereunder. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) each Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume prior written consent. If the Indemnifying Party assumes the defense of such a Third Party Claim, then each Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim (A) that the Indemnifying Party will be bound by may recommend, (B) that does not encumber any determination made in assets of such Third Indemnified Party Claim or impose any compromise equitable remedy or settlement effected by other restriction or condition that would adversely affect such Indemnified Party or the conduct of such Indemnified Party’s business, (C) that does not require the Indemnified Party.
Party to provide a third party a license to use a Purchased Asset or asset of an OEM Subsidiary or otherwise waive or modify a material legal right, and (bD) Notwithstanding the foregoing, that by its terms obligates the Indemnifying Party will not be entitled to assume (or retain, as applicable) control pay the full amount of such defense if (i) the claim for indemnification relates to or arises liability in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims at all stages thereof where releases such Person is not represented by its own counsel, and (ii) the Parties agree (each at its own expense) to render to each other Indemnified Party completely in connection with such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Claim Procedures. (a) For purposes of this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party any person of notice of the assertion commencement of a any action or claim by a third party in respect of which such person (a “Third Party Claim”referred to herein as the "Indemnified Party") against itintends to seek indemnification hereunder, such Indemnified Party shall give notice notify the other party hereto (referred to herein as the "Indemnifying Party") thereof in writing, and the Indemnifying Party of shall notify the assertion Indemnified Party in writing promptly (but in any event not later than seven (7) days) after receipt of such Third Party Claim; provided that notice whether it agrees to undertake the failure to notify defense thereof. Upon its giving such notice, the Indemnifying Party will not relieve the Indemnifying Party shall be entitled to assume control of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by action or claim with counsel reasonably satisfactory to the Indemnified Party’s failure to give such notice. If an ; provided, however, that:
(i) the Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense of any such Third Party Claim and, action or claim and to employ counsel at its own expense to assist in the extent that it wishes, to assume the defense handling of such Third action or claim, provided that, if the named parties in connection with any such action or claim (including any impleaded parties) include both an Indemnified Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the and an Indemnifying Party to and the Indemnified Party shall have been advised by its own counsel that there may be one or more legal defenses available to it that are different from or additional to those available to any Indemnifying Party, then in such case the Indemnified Party shall have the right (at the expense of its election the Indemnifying Party) to assume the defense control of such Third Party Claimdefense on its own behalf, it being understood, however, that the Indemnifying Party shall not, so long as it diligently conducts in connection with such defenseaction or claim, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and local counsel); and
(ii) without the consent of an Indemnified Party, no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without shall consent to the Indemnified Party’s consent unless (A) there is no finding or admission entry of any violation of applicable Legal Requirements judgment or enter into any violation of settlement that does not include as an unconditional term thereof the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full giving by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect each claimant or plaintiff to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense a release from all liability in respect of such Third action or claim or if, pursuant to or as a result of such consent or settlement, injunctive or other equitable relief would be imposed against such Indemnified Party Claim, then the Indemnifying Party will be bound by any determination made in or such Third Party Claim or any compromise judgment or settlement effected by could in its reasonable opinion materially interfere with the business, operations or assets of such Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify assume control of the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount defense of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d)the foregoing provisions, the Indemnified Party shall have fifteen (15) calendar days the right to respond defend such claim in a written statement to such manner as it may deem appropriate at the objection reasonable cost and expense of the Indemnifying Party. If after , and the Indemnifying Party will promptly reimburse the Indemnified Party therefor in accordance with this Article IX; provided that the Indemnified Party shall not be entitled to consent to the entry of any judgment or enter into any settlement of such fifteen claim without the prior written consent of the Indemnifying Party if, pursuant to or as a result of such consent or settlement, injunctive or other suitable relief would be imposed against the Indemnifying Party or such judgment or settlement could in its reasonable opinion materially interfere with the business, operations or assets of the Indemnifying Party.
(15c) calendar day period there remains a dispute as to any claimNotwithstanding the foregoing, the Parties shall attempt in good faith for thirty Indemnified Party, during the period the Indemnifying Party is determining whether to elect to assume the defense of a matter covered by this Section 9.5, may take such reasonable actions (30) calendar days to agree upon at the rights expense of the respective Parties Indemnifying Party) as it deems necessary to preserve any and all rights with respect to each the matter, without such actions being construed as a waiver of such claimsthe Indemnified Party's rights to defense and indemnification pursuant to this Agreement. If No failure to provide any notice required by this Section 9.5 shall relieve the Parties should so agreeIndemnifying Party of any obligation to indemnify the Indemnified Party hereunder, a memorandum setting forth such agreement except to the extent that the Indemnifying Party is actually prejudiced thereby.
(d) The Indemnifying Party shall be prepared pay all costs and signed expenses, including but not limited to reasonable attorneys' fees, incurred by all Parties. If the Parties do not so agree, the Parties will resolve the conflict any Indemnified Party in accordance with Section 11.3enforcing its indemnification rights as provided in this Agreement.
(e) Notwithstanding the foregoingThe indemnification obligations of Seller and Buyer, respectively, under this Article IX, shall be limited to claims made prior to the extent the provisions last date of survival thereof referred to in Section 9.2.
(f) Characterization of Payment. Any indemnity payment made pursuant to this Section 8.5 conflict with the provisions of Article VII with respect IX shall be treated by Buyer and Seller as an adjustment to the matters covered therein, the provisions of Article VII shall governPurchase Price.
Appears in 1 contract
Samples: Stock Purchase Agreement (Liberty Group Holdings Inc)
Claim Procedures. Except as otherwise provided by Section 9.7(d) hereof with respect to the liability of CPI for Taxes with respect to periods occurring prior to the Closing Date (including Straddle Periods):
(a) For purposes of this Section 8.5, As to any Claim for which a party making a claim for indemnity under Section 8.1 hereto asserts that it is hereinafter referred entitled to as indemnification (an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion Indemnitee”) under this Article VI which arises out of a claim or liability asserted against or sought to be collected from the Indemnitee by a third party (a “Third Third-Party Claim”) against it), such Indemnified Party the Indemnitee shall give notice provide to the Indemnifying party or parties from whom indemnification is sought (the “Indemnitor”) under this Article VI a written notice setting forth the Claim, the provisions of this Agreement and other instruments under which such Claim arises and, if known, the amount of the Losses incurred or anticipated to be incurred as a result of such Claim (a “Claim Notice”). The Indemnitor shall have thirty (30) days following its receipt of the Claim Notice respecting such Claim to notify the Indemnitee whether or not the Indemnitor elects to defend the Indemnitee concerning such Claim; and:
(i) if the Indemnitor so elects to defend the Indemnitee concerning such Claim, the Indemnitor shall either settle or, by appropriate proceedings, defend such Claim, in its sole discretion; and the Indemnitee shall cooperate as reasonably requested by the Indemnitor in connection with such settlement or defense. The Indemnitor may control the defense or settlement of the Claim; provided, however, that the Indemnitor shall effect no settlement of such Claim, if such settlement would adversely affect the liability of the Indemnitee, unless the Indemnitee shall consent thereto in writing, which consent shall not be unreasonably delayed or withheld. If the Indemnitee desires to participate in, without controlling, any such defense or settlement by the Indemnitor, it may do so at the Indemnitee’s sole cost and expense. Notwithstanding anything herein to the contrary, from the date on which the Indemnitee gives a Claim Notice to the Indemnitor until the Indemnitor elects to defend the Indemnitee (or until the time for such election shall have passed) in respect of any Third-Party Claim, the Indemnitee may take any necessary actions to defend (but not settle) such Claim; provided, however, that upon the election of the Indemnitor to defend such Claim, the Indemnitor shall promptly reimburse the Indemnitee for its reasonable expenses actually incurred in defending such Claim. In addition, notwithstanding anything herein to the contrary, the Indemnitee may employ its own counsel at the expense of the Indemnitor to assert such defenses as counsel reasonably acceptable to the Indemnitor advises in writing conflict with those maintained by the Indemnitor on its own behalf in the same proceeding (in which case the Indemnitor may not direct the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) on behalf of the assertion of a Third Party Claim, then Indemnitee); or
(ii) if the Indemnifying Party Indemnitor shall be entitled not so elect to participate in defend the defense of Indemnitee concerning such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall notIndemnitee shall, so long as it diligently conducts without prejudice to its right of indemnification from the Indemnitor, either settle or, by appropriate proceedings, defend such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred its sole discretion; and the Indemnitor shall cooperate as reasonably requested by the Indemnified Party Indemnitee in connection with such settlement or defense. The Indemnitee may control the defense or settlement of the Claim involved; provided, however, that the Indemnitee shall effect no settlement of such Third Party Claim, other than reasonable costs if such settlement would adversely affect the liability of investigationthe Indemnitor, unless the Indemnitor shall consent thereto in writing, which consent shall not be unreasonably delayed or withheld. If the Indemnifying Party assumes the Indemnitor desires to participate in, without controlling, any such defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the Indemnitee, it may do so at its sole relief provided is monetary damages that are paid in full by the Indemnifying Party; cost and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Partyexpense.
(b) Notwithstanding As to any Claim for which the foregoing, the Indemnifying Party will not Indemnitee would be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the VI which arises other Person fully informed than out of the status of such Third Party a Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected from the Indemnitee by a third partyparty (a “Direct Claim”), the Indemnified Party shall with reasonable promptness send notice with respect Indemnitor will have thirty (30) days following its receipt of the Claim Notice respecting such Claim within which to respond in writing to such claim to the Indemnifying PartyClaim Notice. If the Indemnifying Party Indemnitor does not notify respond within such period, the Indemnified Party Indemnitor will be deemed to have rejected such Claim, in which event the Indemnitee may pursue any remedies available to the Indemnitee subject to the provisions of this Article VI. If the Indemnitor disputes such Direct Claim within such response period, the Indemnitor and the Indemnitee will proceed promptly and in good faith to negotiate a resolution of such dispute. If all such disputes are not resolved through negotiations within thirty (30) calendar days from after the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability end of the Indemnifying Party hereunder. If initial response period, either the Indemnifying Party shall object in writing Indemnitor or the Indemnitee may initiate litigation to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after resolve such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3disputes.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gibraltar Industries, Inc.)
Claim Procedures. Claim Notice and Claim Objection Notice. (ai) For purposes of this Except as set forth in Section 8.55.14 with respect to Taxes, in order for any Parent Indemnified Party to duly make a party making a valid claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” and 8.2, the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Parent Indemnified Party of must provide written notice of the assertion of a claim by a third party (a “Third Party ClaimClaim Notice”) against itto the Stockholder Representative promptly, and in any event within twenty (20) Business Days of the first date on which such Parent Indemnified Party has knowledge of facts, matters or circumstances from which it is reasonably apparent that such an occurrence is likely to have occurred; provided that no delay on the part of the Parent Indemnified Party in so notifying the Stockholder Representative shall relieve the Company Stockholders from any obligation hereunder unless the Company Stockholders are materially prejudiced thereby in its defense thereof. The Claim Notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 8.2 which the Parent Indemnified Party alleges to have occurred, a description of the facts and circumstances giving rise to such occurrences, the estimated amount of Losses imposed, incurred, suffered or asserted in connection therewith or arising therefrom (to the extent then ascertainable) and the method of computation of such Losses. The Stockholder Representative and the Parent Indemnified Party shall give notice use commercially reasonable efforts to the Indemnifying Party avoid production of the assertion of such Third Party Claim; provided that the failure confidential information (consistent with applicable Law) to notify the Indemnifying Party will not relieve the Indemnifying Party of third parties and to cause all communications among employees, counsel and others representing any liability that it may have party to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such a Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute so as to preserve any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3applicable attorney-client or work product privileges.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Samples: Merger Agreement (DraftKings Inc.)
Claim Procedures. (a) For purposes of this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as If an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Obligor Indemnified Party of receives notice of the assertion or commencement of a any claim asserted against an Obligor Indemnified Party by a third party Person (a “Third Party Claim”) against itin respect of any matter that is subject to indemnification under Section 1.1 of this Agreement, such the Obligor Indemnified Party shall give notice promptly (i) notify the Obligees of the Third Party Claim and (ii) transmit to the Indemnifying Party Obligees a written notice (“Claim Notice”) describing in reasonable detail the nature of the assertion of such Third Party Claim; provided that , a copy of all papers served with respect to such claim (if any), the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Obligor Indemnified Party’s best estimate of the amount of liabilities attributable to the Third Party Claim and the basis of the Obligor Indemnified Party’s request for indemnification under this Agreement. Failure to timely provide such Claim Notice shall not affect the right of the Obligor Indemnified Party’s indemnification hereunder, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim Obligee is materially prejudiced by such delay or omission.
(b) If the Indemnified Party’s failure Obligees admit (in writing) their obligation to give such notice. If an indemnify the Obligor Indemnified Party gives notice with respect to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a any Third Party Claim, then the Indemnifying Obligees shall have the right to defend, at their sole cost and expense, the Obligor Indemnified Party shall be entitled to participate in the defense of against such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel selected by the Obligees (who shall be reasonably satisfactory to the Obligor Indemnified Party), by all appropriate proceedings, to a final conclusion or settlement at the discretion of the Obligees in accordance with this Section 1.2(b). After notice from The Obligees shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party Obligees shall not enter into any settlement agreement without the written consent of the Obligor Indemnified Party; provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third Person asserting the claim to all Obligor Indemnified Parties affected by the claim, (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Obligor Indemnified Party or its affiliates and (iii) the settlement agreement does not create a financial or other obligation on the part of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Obligor Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other Person other than the Obligees. If requested by the Obligees, the Obligor Indemnified Party agrees, at the sole cost and expense of the Obligees, to cooperate with the Obligees and their counsel in contesting any Third Party Claim that the Obligees elect to contest, including the making of any reasonably related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person and making the books and records and personnel of the Obligor Indemnified Party reasonably available during normal business hours. The Obligor Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Obligees pursuant to this Section 1.2(b), and the Obligor Indemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the defense of Obligees do not admit (in writing) their obligation to indemnify the Obligor Indemnified Party pursuant to Section 1.2(b), then the Obligor Indemnified Party shall have the right to defend, and be reimbursed for its reasonable cost and expense (but only if the Obligor Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Obligor Indemnified Party (who shall be reasonably satisfactory to the Obligees), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Obligor Indemnified Party. In such circumstances, the Obligor Indemnified Party shall defend any such Third Party ClaimClaim in good faith and have full control of such defense and proceedings; provided, in each casehowever, subsequently incurred by that the Obligor Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no may not enter into any compromise or settlement of such Third Party Claims Claim if indemnification is to be sought hereunder, without the Obligees’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Obligees may be effected participate in, but not control, any defense or settlement controlled by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Obligor Indemnified Party has no liability pursuant to this Section 1.2(c), and the Obligees shall bear their own costs and expenses with respect to such compromise or settlementparticipation. If notice is given to Any claim by an Indemnifying Obligor Indemnified Party of the assertion of any for indemnification under this Agreement that does not result from a Third Party Claim and (a “Direct Claim”) will be asserted by giving the Indemnifying Party does notObligee reasonably prompt written notice thereof, within ten but in any event not later than thirty (1030) days after the Obligor Indemnified Party becomes aware of such Direct Claim. Failure to timely provide such notice of a Direct Claim shall not affect the right of the Obligor Indemnified Party’s notice is givenindemnification hereunder, give notice except to the extent the Obligees are materially prejudiced by such delay or omission. Such notice by the Obligor Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the Indemnifying Party’s election to assume the defense estimated amount, if reasonably practicable, of such Third Party Claim, then the Indemnifying Party will damages that has been or may be bound by any determination made in such Third Party Claim or any compromise or settlement effected sustained by the Obligor Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party . The Obligees will not be entitled to assume (or retain, as applicable) control have a period of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days Business Days within which to respond in a written statement writing to the objection of the Indemnifying Partysuch Direct Claim. If after the Obligees do not so respond within such fifteen (15) calendar day period there remains a dispute as Business Day period, the Obligees will be deemed to any have rejected such claim, in which event the Parties shall attempt in good faith for thirty (30) calendar days Obligor Indemnified Party will be free to agree upon the rights of the respective Parties with respect to each of pursue such claims. If the Parties should so agree, a memorandum setting forth such agreement shall remedies as may be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, available to the extent Obligor Indemnified Party on the terms and subject to the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall governAgreement.
Appears in 1 contract
Samples: Indemnification Agreement (Helix Energy Solutions Group Inc)
Claim Procedures. (a) For purposes of Each Person entitled to indemnification under this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as Article V (each an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred ”) agrees that after it becomes aware of facts giving rise to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by a third party (a “Third Party Claim”) against itit for indemnification pursuant to this Article V, such Indemnified Party shall give assert its claim for indemnification under this Article V (each a “Claim”) by providing a written notice (a “Claim Notice”) within 30 days of becoming aware of the facts giving rise to such claim, to the Person required to provide indemnification protection under this Article V (each, an “Indemnifying Party Party”) specifying, in reasonable detail, the nature and basis for such Claim (including identifying the relevant provisions of this Agreement upon which such Claim is based) and the assertion amount of such Third Party Claim; provided that Losses associated therewith (if known). Notwithstanding the foregoing, no Indemnified Party’s failure to notify the Indemnifying Party send or delay in sending a Claim Notice will not relieve the Indemnifying Party of any liability that it may have from Liability hereunder with respect to any Indemnified Partysuch Claim, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is materially prejudiced by the Indemnified Party’s such failure or delay.
(b) If any Proceeding is begun, made or instituted by a third party as a result of which an Indemnifying Party may become obligated to give such notice. If an Indemnified Party gives notice hereunder, such Indemnified Party shall give a Claim Notice to the Indemnifying Party pursuant as described in Section 5.4(a). The Indemnifying Party shall have the right to defend, contest or otherwise protect the Indemnified Party against any Proceeding at its sole cost and expense. Except as otherwise provided in this Section 8.5(a) of the assertion of a Third Party Claim5.4(b), then the Indemnifying Party shall be entitled have the right to participate (i) control and conduct any such Proceeding, (ii) take all other reasonable steps to defend against any such third-party claim and (iii) employ counsel designated by the Indemnifying Party to contest any such third-party claim in the defense name of the Indemnified Party or otherwise. Notwithstanding the above, the Indemnifying Party shall not have the right to control or defend any indemnification Proceeding if (1) the Indemnifying Party is also a party to such Third Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate, (2) the claim for indemnification relates to or arises in connection with any criminal proceeding, or (3) the claim seeks an injunction or equitable relief. The Indemnifying Party shall, within 15 days after receipt of a Claim andNotice of any such third-party claim, give written notice to the extent that it wishes, Indemnified Party of its intention to assume the defense of such Third third-party claim. The Indemnified Party Claimshall have the right, with but not the obligation, to participate at its own expense in the defense thereof by counsel reasonably satisfactory to of the Indemnified Party. After notice from ’s choice and shall in any event cooperate with and assist the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, extent reasonably possible. If the Indemnifying Party shall notfails to elect to defend, so long as it diligently conducts contest or otherwise protect against such defenseProceeding, be liable to then (i) the Indemnified Party under shall have the right to do so, provided that the Indemnified Party shall not make any compromise or settlement thereof without the Indemnifying Party’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed), (ii) subject to the limitations set forth in this Article VIII or V, the Indemnified Party shall be entitled to recover the amount of Loss thereof from the Indemnifying Party upon final determination the underlying Claim is subject to indemnification pursuant to this Article VII for any fees V, including reasonable attorneys’ fees, disbursements and amounts paid as the result of other counsel or any other expenses such Proceeding (except with respect to any compromise or settlement made without the defense prior written consent of such Third the Indemnifying Party Claimas described above), in each case, subsequently incurred by and (iii) the Indemnified Party shall keep the Indemnifying Party reasonably informed as to all matters concerning such Proceeding and shall promptly notify the Indemnifying Party in connection with the defense writing of such Third Party Claim, other than reasonable costs of investigationany and all significant developments relating thereto. If the Indemnifying Party assumes the defense of a Third Party Claimany Proceeding as provided herein, then (iA) such assumption it will be conclusively establish established for purposes of this Agreement that the claims made in that Third Party Claim Proceeding are within the scope of and subject to indemnification, and ; (iiB) no compromise or settlement of such Third Party Claims claims may be effected by the Indemnifying Party without the Indemnified Party’s consent (which shall not be unreasonably withheld, conditioned or delayed) unless (Ai) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of Law and no adverse effect as to any Indemnified Party; Party on any other claims that may be made against the Indemnified Party and (Bii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has will have no liability Liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of claims effected without its Affiliatesconsent.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Claim Procedures. (a) For purposes of this Section 8.5Except with respect to Tax Claims, a party making a claim for indemnity which are covered solely under Section 8.1 is hereinafter referred to as 4.24, in order for a Buyer Indemnified Party or a Seller Indemnified Party (any of them, an “Indemnified Party” and ”) to duly make a valid claim under Section 7.2 or Section 7.3, the party against whom Indemnified Party must (promptly, but in no event more than twenty Business Days following the first date following the Closing Date on which such claim Indemnified Party has knowledge of facts, matters or circumstances from which it is asserted reasonably apparent that such an occurrence is hereinafter referred likely to as have occurred) provide written notice to Seller (for claims made by Buyer Indemnified Parties) or to Buyer (for claims made by Seller Indemnified Parties) (the recipient of such notice, the “Indemnifying Party.” Promptly after receipt by ”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 7.2 or Section 7.3 which the Indemnified Party alleges to have occurred, a description of the facts and circumstances giving rise to such occurrences, the amount or the estimated amount of Losses actually incurred or suffered as a result thereof, and a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided that the Indemnified Party may delay delivery of any Claim Notice until the date that the Additional Consideration is finally determined pursuant to Section 1.1(b) so long as such delay does not materially prejudice the Indemnifying Party’s defense or resolution of such claim; provided, further, that the failure of an Indemnified Party to provide a Claim Notice in a timely manner shall not relieve the Indemnifying Party of notice its obligations under this Article VII except to the extent that the Indemnifying Party’s defense or resolution of such claim has been materially prejudiced by such failure. The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the assertion allegations made in the Claim Notice and shall keep the Indemnifying Party fully and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use commercially reasonable efforts to avoid production of Confidential Information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a claim Third Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) Except with respect to Tax Claims, which are covered solely under Section 4.24, in the event the Claim Notice results from any Action asserted or threatened against the Indemnified Party by a third party Third Party (a “Third Party Claim”), notwithstanding anything to the contrary in Section 7.4(a):
(i) against it, such The Indemnified Party shall give notice provide the Claim Notice to the Indemnifying Party of not later than the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by twentieth Business Day following the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) receipt of the assertion of a Third Party Claim, then and in any event not later than the tenth Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that if either such Business Day occurs on or prior to the Closing Date, the Claim Notice shall be timely provided if it is provided not later than the Business Day following the Closing Date.
(ii) During the period ending on the earlier of the thirtieth calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth calendar day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to notify the Indemnified Party of its election to assume and control the defense of the Third Party Claim; provided that if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that seeks an injunction or other equitable relief against the Indemnified Party.
(A) In the event that the Indemnifying Party duly and timely makes such election, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third Party Claim. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose; provided that the fees and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 7.4. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall be entitled to settle such claims; provided that, the Indemnifying Party shall not, so long without the prior written consent of the Indemnified Party, settle, compromise or offer to settle, compromise or cease to defend such Third Party Claim if such settlement, compromise or cessation would result in: (u) the settlement amount exceeding the Cap Amount, Business Representation Cap Amount or the Aggregate Cap, as it diligently conducts such defense, be liable to applicable; (v) any monetary Liability of the Indemnified Party under this Article VIII that will not be promptly paid or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full reimbursed by the Indemnifying Party; and (Cw) the imposition of a consent Order that would materially restrict the future activity or conduct of the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party any of the assertion its Affiliates in any material respect; (x) a finding or admission of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to a material violation of a material Law by the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise of its Affiliates; (y) a finding or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (admission that would have a material and adverse effect on other claims made or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation threatened against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, any of its Affiliates; or (iiiz) the claim for indemnification relates to any material non-monetary condition or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer obligation being imposed on any Indemnified Party or any of its Affiliates.
(cB) With If the Indemnifying Party does not duly and timely make such election, the Indemnified Party shall be entitled but not obligated (subject to Section 7.7 ( Minimizing and Mitigating Losses)) to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 7.4(b)(ii)(A); provided that the Indemnified Party’s right to be indemnified, held harmless and reimbursed in respect to any of the Third Party Claim subject shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or will seek indemnification under this Article VIII: hereunder with respect to such matter. Notwithstanding anything in the foregoing to the contrary, the Indemnifying Party shall have no Liability with respect to a Third Party Claim settled without its prior written consent.
(iiii) both the The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other reasonably and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall keep consider such comments in good faith.
(iv) All reasonable and documented out-of-pocket legal fees, costs and expenses actually incurred or suffered by the other Person fully informed of Indemnifying Party and the status of such Indemnified Party in connection with investigating and defending, and cooperating in the investigation and defense of, the Third Party Claim (“Third Party Claim Expenses”) shall be paid as follows:
(A) Any Third Party Claim Expenses actually incurred or suffered by the Indemnified Party (x) prior to or in the absence of the due and any related claims at all stages thereof where such Person timely making of the election described in Section 7.4(b)(ii)(A), (y) under the circumstances described in Section 7.4(b)(ii)(B) or (z) in compliance with Section 7.4(b)(iii), shall constitute Losses for which the Indemnified Party shall be entitled to be reimbursed if the Indemnified Party is not represented by its own counseldetermined pursuant to a Final Determination to be entitled to be indemnified, held harmless and (ii) reimbursed pursuant to this Article VII in respect of the Parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(dB) In the event an Indemnified Third Party has a claim hereunder that does not involve a claim being asserted against Claim Expenses actually incurred or sought to be collected suffered by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), be reimbursed by the Indemnified Party shall have fifteen (15) calendar days if the Indemnified Party is determined pursuant to respond a Final Determination not to be entitled to be indemnified, held harmless and reimbursed pursuant to this Article VII in a written statement to the objection respect of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3Third Party Claim.
(eC) Notwithstanding Third Party Claim Expenses not addressed by Sections 7.4(b)(iv)(A) or (B) shall be paid by the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall governPerson by which they were incurred.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Craft Brew Alliance, Inc.)
Claim Procedures. (a) For purposes of If any Purchaser Indemnified Party or Seller Indemnified Party intends to seek indemnification pursuant to this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an Article X (the “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by a third party (a “Third Party Claim”) against it, such Indemnified Party shall give notice to the Indemnifying Party of the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen notify the other Party (15the “Indemnifying Party”) calendar days in writing (the “Indemnity Notice”) of the Indemnified Party’s assertion or a third party’s assertion of any claim with respect to respond which the indemnification provisions set forth in this Article X relate, providing in reasonable detail the facts giving rise to such claim, a written statement of the Indemnified Party’s Losses to the objection extent then known, and an estimate, if reasonably practicable, of the amount of Losses that the Indemnified Party reasonably anticipates it will suffer or incur; provided, however, that no delay on the part of the Indemnified Party in giving the Indemnity Notice shall relieve Indemnifying Party from any obligation hereunder unless (and solely to the extent) Indemnifying Party is materially prejudiced thereby.
(b) With respect to any third party claim for which an Indemnified Party expects to seek indemnification hereunder, the Indemnified Party shall have the right to defend (at the expense of Indemnifying Party) or to settle or compromise such claim; provided, that any such settlement or compromise made without Indemnifying Party’s consent (not to be unreasonably conditioned, delayed or withheld) shall not be determinative of the amount of any Losses that are recoverable under this Agreement. If after such fifteen (15) calendar day period there remains a dispute as The Indemnifying Party shall be entitled, at its sole option and expense, to any claimparticipate in, but not to determine or conduct, the Parties defense of any such third party claim; provided, further, that, for the sake of clarity, it is agreed that Indemnifying Party shall attempt not have the ability, without the prior written consent of Indemnified Party, to petition, make any motion to, or take any other procedural action in good faith for connection with such third party claim.
(c) Unless, within thirty (30) calendar days following the delivery of an Indemnity Notice, Indemnifying Party gives written notice to agree upon Indemnified Party announcing its intent to contest the rights of the respective Parties with respect to each assertion of such claimsindemnification claim (the “Contest Notice”), such claim shall be deemed accepted by Indemnifying Party, and the Indemnified Party shall be entitled to indemnification for all Losses incurred or suffered arising out of, resulting from, in connection with or related to the matters set forth in the Indemnity Notice. In the event that a Contest Notice is timely given to Indemnified Party, then the parties shall endeavor to settle and compromise such contested claim as between them. If the Parties should so agreeparties are unable to agree on a settlement or compromise of such claim within thirty (30) days after the timely delivery of the Contest Notice, either Indemnifying Party, on the one hand, or Indemnified Party, on the other hand, may bring a memorandum setting forth such agreement court action pursuant to Section 11.3 to resolve the claim.
(d) All claims for indemnification shall be prepared and signed paid by all Parties. If the Parties do not so agree, Indemnifying Party in immediately available funds within ten (10) Business Days of the Parties will resolve the conflict date such claim for indemnification is resolved in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern10.6.
Appears in 1 contract
Claim Procedures. (a) For purposes Each Indemnitee agrees that promptly after it becomes aware of this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred facts giving rise to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by it for indemnification pursuant to this ARTICLE VIII, such Indemnitee must assert its claim for indemnification under this ARTICLE VIII (each, a third party “Claim”) by providing a written notice (a “Third Party ClaimClaim Notice”) against it, such Indemnified Party shall give notice to the Indemnifying Party of (as defined below) allegedly required to provide indemnification protection under this ARTICLE VIII specifying, in reasonable detail, the assertion of nature and basis for such Third Party Claim; provided that Claim (e.g., the underlying representation, warranty or covenant alleged to have been breached). Notwithstanding the foregoing, an Indemnitee’s failure to notify the Indemnifying Party send or delay in sending a third party Claim Notice will not relieve the Indemnifying Party of any from liability that it may have hereunder with respect to any Indemnified Party, except such Claim unless the Indemnifying Party can show actual material prejudice resulting from such failure and then only to the extent of such actual material prejudice.
(b) Promptly after the receipt by an Indemnitee of notice of any Loss asserted by any third party against any Indemnitee (each, an “Action”), which Action is subject to indemnification under this Agreement, the Indemnitee will give reasonable written notice to the party from whom indemnification is claimed (the “Indemnifying Party”) including, without limitation, copies of any notices or other materials received in connection with such claim for indemnification; provided, however, that any failure of an Indemnitee to give timely notice pursuant to this Section 8.7(b) shall not preclude a claim by the Indemnitee for indemnification hereunder unless the Indemnifying Party demonstrates that can show actual material prejudice resulting from such failure and then only to the extent of such actual material prejudice. The Indemnifying Party will be entitled, at the sole expense and liability of the Indemnifying Party, to exercise full control of the defense, compromise or settlement of any Action by notifying the Indemnitee in writing of the Indemnifying Party’s intention to assume such defense. The other party will cooperate with party assuming the defense of any Action in accordance with this Agreement in any manner that such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel party reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigationmay request. If the Indemnifying Party assumes the defense of a Third Party Claimany Action, then as provided above, it will do so diligently and in good faith and the Indemnitee will have the right to employ separate counsel and to participate in (ibut not control) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnificationdefense, and (ii) no compromise or settlement of the Action, but the fees and expenses of such Third counsel will be at the expense of the Indemnitee. No Indemnitee will settle or compromise any Action for which it is entitled to indemnification under this Agreement without the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld. No Indemnifying Party Claims may be effected will settle or compromise any such Action without the prior written consent of the Indemnitee unless the judgment or proposed settlement involves only the payment of money damages by the Indemnifying Party without and does not otherwise impose any other Loss, injunction or equitable relief on the Indemnified Party’s Indemnitee, such consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliatesunreasonably withheld.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Samples: Merger Agreement (Telecommunication Systems Inc /Fa/)
Claim Procedures. (ai) For purposes of this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred An Indemnitee must promptly provide written notice to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by a third party Claim (a “Third Party ClaimClaim Notice”) against it, such Indemnified Party shall give notice to after the Indemnifying Party of the assertion Indemnitee learns or becomes aware that it has sustained Losses in respect of such Third Party Claim; provided that the an Indemnitee’s failure to notify the Indemnifying Party send or delay in sending a Claim Notice with respect to a Claim will not relieve the Indemnifying Party of any liability that it may have from Liability hereunder with respect to any Indemnified Party, such Claim except to the extent that the Indemnifying Party demonstrates that the defense of is actually prejudiced by such Third Party failure or delay.
(ii) If any third-party Claim is prejudiced by the Indemnified Party’s failure asserted for which an Indemnifying Party is obligated to give such notice. If indemnify an Indemnified Party gives notice to Indemnitee under this Article X, the Indemnifying Party pursuant to Section 8.5(a) of will have the assertion of a Third Party Claimright, then the at such Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishesParty’s sole cost and expense, to assume the defense of such Third Party third-party Claim, with including the appointment and selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably satisfactory acceptable to the Indemnified PartyIndemnitee. After notice from If the Indemnifying Party to the Indemnified Party of its election elects to assume the defense of any such Third Party third-party Claim, it will notify the Indemnitee of its intent to do so. The Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to in the defense of any such Third Party third- party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, if (i) the Claim for indemnification is with respect to a criminal or regulatory Proceeding, any Proceeding by a Governmental Authority (including any Proceeding in respect of Taxes), or involves a key commercial relationship of the Indemnitee, (ii) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnitee, (iii) the Indemnifying Party has failed or is failing to vigorously prosecute or defend such claim or will have failed to have engaged counsel reasonably acceptable to the Indemnitee within a reasonable period of time, (iv) the claim involves injunctive, equitable, or other non-monetary relief against the Indemnitee, or (v) is one in which an adverse judgment would, in the good faith judgment of the Indemnitee, likely be materially adverse to the Indemnitee’s business, then (A) the Indemnifying Party will not be entitled to assume (or retain, as applicable) control the defense of any such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment (B) the Indemnitee will have the right to conduct and control the defense of such action or allegation against claim with counsel of its choosing and the Indemnified Party, reasonable legal and other expenses incurred by the Indemnitee will be borne by the Indemnifying Party and (iiC) the Indemnifying Party fails to vigorously and continuously prosecute will not be bound by any defense or defend such claim settlement that the Indemnitee will make in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both such action or claim without the Indemnified Party and consent of the Indemnifying Party, as and the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims at all stages thereof where such Person is Indemnitee will not represented by its own counsel, and (ii) the Parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), such settlement without the Indemnified Party shall have fifteen (15) calendar days to respond in a prior written statement to the objection consent of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as The Indemnifying Party will not be entitled to settle or consent to the entry of any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties judgment with respect to each any third- party Claim without the prior written consent of such claimsthe Indemnitee. If the Parties should so agreeNo Indemnitee will unreasonably withhold, delay or condition its consent to settle a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3third-party Claim.
(eiii) Notwithstanding the foregoing, the insurer(s) under the R&W Insurance Policy and its/their agents, advisors, and other Representatives shall be permitted to reasonably consult and associate with any party hereto in the extent defense of any third-party Claim that may reasonably constitute a “Loss” or similar concept under the provisions of R&W Insurance Policy and nothing in this Section 8.5 conflict with the provisions of Article VII with respect 10.04(b) shall modify or be deemed to the matters covered therein, the provisions of Article VII shall govern.modify
Appears in 1 contract
Samples: Asset Purchase Agreement (Prestige Consumer Healthcare Inc.)
Claim Procedures. (a) For purposes of this Section 8.5, If a party making a claim for indemnity under Section 8.1 Person is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by a third party (a “Third Party Claim”) against it, such Indemnified Party shall give notice to the Indemnifying Party of the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: VI (ithe “Indemnified Party”), such party may make claim under this Article VI (a “Claim”) both by delivering to the party required to provide indemnification hereunder (the “Indemnifying Party”) written notice of such claim (the “Claims Notice”). The Claims Notice shall state the nature and basis of such Claim or action, to the extent known, and the amount in dispute under such claim or action, if known at such time. The Indemnifying Party shall respond to the Indemnified Party and (a “Claim Response”) within thirty (30) days (the Indemnifying Party, as “Response Period”) after the case may be, shall keep date that the other Person fully informed of the status of such Third Party Claim and any related claims at all stages thereof where such Person Claims Notice is not represented received by its own counsel, and (ii) the Parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does fails to give a Claim Response within the Response Period, the Indemnifying Party will be deemed not notify to dispute the Claim described in the related Claims Notice. If the Indemnifying Party elects not to dispute a Claim described in a Claims Notice, whether by failing to give a timely Claim Response or by written notice to the Indemnified Party, then the amount of Damages, to the extent known at the time, set forth in such Claims Notice will be conclusively deemed to be an obligation of the Indemnifying Party, and the Indemnifying Party shall pay within thirty (30) calendar days from after the date last day of receipt of such notice that the Indemnifying Party disputes such claim, applicable Response Period the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunderDamages due pursuant to this Article VI. If the Indemnifying Party shall object delivers a Claim Response not relating to a Third-Party Claim within the Response Period indicating that it disputes one or more of the matters identified in writing to any claim made in accordance with this Section 8.5(d)the Claims Notice, the Indemnifying Party and the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt promptly meet and act in good faith for thirty (30) calendar days to agree upon settle the dispute before otherwise seeking to enforce their respective rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3under this Article VI.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Claim Procedures. Notwithstanding anything else,
(ai) For purposes Subject to the provisions of Section 7.2, all claims to exercise Offset Rights made under this Section 8.5Agreement resulting from, related to or arising out of a party making Third-Party Claim against a claim for indemnity under Section 8.1 is hereinafter referred Parent Indemnified Party shall be made in accordance with the following procedures. Parent shall give prompt written notification to as an “Indemnified Party” and Representative, on behalf of the party against whom such claim is asserted is hereinafter referred to as Sellers (the “Indemnifying Party.” Promptly ”) within 30 days after receipt by an the Parent Indemnified Party of notice of the commencement of any action, suit or proceeding relating to a Third-Party Claim for which indemnification may be sought or, if earlier, upon the assertion of a any such claim by a third party party, and shall describe in reasonable detail (to the extent then known by the Parent Indemnified Party) the facts constituting the basis for such claim and the amount of the Claimed Damages (a “Third Third-Party ClaimClaim Notice”). For purposes of this Section 7.2, if the Sellers, collectively, comprise the Indemnifying Party, then in each such case all references to such Indemnifying Party (except for provisions relating to an obligation to make or a right to receive any payments) against itshall be deemed to refer to the Representative acting on behalf of such Indemnifying Party. At any time after delivery of such notification, such Indemnified Party shall give notice to the Indemnifying Party of may, upon written notice thereof to the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Parent Indemnified Party, except to the extent that the Indemnifying Party demonstrates that assume control of the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claimaction, then the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim andsuit, to the extent that it wishes, to assume the defense of such Third Party Claim, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Parent Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the Third-Party Claim involves only a claim for indemnification relates to monetary damages and not any claim for an order injunction or arises in connection with other equitable relief or relief for other than monetary damages against any criminal claim or action, indictment or allegation against the Parent Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend timely provides the Parent Indemnified Party with a statement that, based on the facts set forth in the Third-Party Claim Notice, the Indemnifying Party would have an indemnity obligation for the Damages resulting from such claim in good faith or fails to begin such prosecution or defense in a timely mannerThird-Party Claim, or (iii) the claim for indemnification relates Third-Party Claim does not relate to or arises otherwise arise in connection with a Tax any criminal or regulatory action and (iv) the maximum amount of Damages at issue in such dispute does not exceed the maximum amount for which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the Parent Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted seek recourse against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party does not assume control of such defense, the Parent Indemnified Party shall object control such defense. The Party not controlling such defense may participate therein at its own expense; provided, however, that if the Indemnifying Party is controlling the defense, the Indemnifying Party shall pay the fees and expenses of the Parent Indemnified Party’s counsel during any period in writing which the Indemnifying Party ceases to be eligible to maintain control of the defense of the Third-Party Claim due to an actual conflict of interest. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Parent Indemnified Party shall not agree to any settlement or compromise of such action, suit, proceeding or claim made without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall not agree to any settlement or compromise of such action, suit, proceeding or claim that does not include a complete release of the Parent Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Parent Indemnified Party without the prior written consent of the Parent Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(ii) A Parent Indemnified Party wishing to assert a claim for its Offset Right under this Article VII which is not subject to Section 7.2(f)(i) shall have delivered to the Indemnifying Party a Claim Certificate which contains (i) a description and the amount of any Claimed Damages incurred by the Parent Indemnified Party, (ii) a statement that the Parent Indemnified Party is entitled to exercise its Offset Right under this Article VII and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such Damages. If the Indemnifying Party contests the payment of all or part of the Claimed Damages, the Indemnifying Party and the Parent Indemnified Party shall use good faith efforts to resolve such dispute. If such dispute is not resolved within 60 days following the delivery by the Parent Indemnified Party of the applicable Claim Certificate, the Indemnifying Party and the Parent Indemnified Party shall each have the right to submit such dispute to a court of competent jurisdiction in accordance with the provisions of Section 9.9.
(iii) If the finally determined amount of Damages for such Claimed Damages is less than the amount withheld pursuant to a party’s Offset Right for such claim, then promptly following the final determination of the amount of such Damages, such excess amounts not constituting Damages shall be distributed for the benefit to the Sellers in accordance with this Section 8.5(dAgreement. For the avoidance of doubt, any claims set forth in a Claim Certificate pursuant to this Article VII (including Claim Certificates setting forth amounts to be subject to a party’s Offset Right), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict finally resolved in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions terms of this Article VII, including, as applicable, this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern7.2(f).
Appears in 1 contract
Claim Procedures. (a) For purposes of this Except as set forth in Section 8.55.2 with respect to tax claims, in order for a party making Buyer Indemnified Party or a claim for indemnity under Section 8.1 is hereinafter referred to as Seller Indemnified Party (each, an “Indemnified Party” and ”) to duly make a valid claim with respect to any of the party against whom occurrences specified in Section 6.2 or Section 6.3, the Indemnified Party must (promptly following the first date following the Effective Date on which such claim Indemnified Party has knowledge of facts, matters or circumstances from which it is asserted reasonably apparent that such an occurrence is hereinafter referred likely to as have occurred) provide written notice to Seller (for claims made by Buyer Indemnified Parties) or to Buyer (for claims made by Seller Indemnified Parties) (the recipient of such notice, the “Indemnifying Party.” Promptly after receipt by an ”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 6.2 or Section 6.3 which the Indemnified Party of notice alleges to have occurred, a description of the assertion facts and circumstances giving rise to such occurrences, the estimated amount of Losses imposed, incurred, suffered or asserted in connection therewith or arising therefrom (to the extent then ascertainable), and a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, that the failure to timely provide a Claim Notice shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that such failure has a material prejudicial effect on the Indemnifying Party. The Indemnifying Party shall have thirty (30) days from receipt of a Claim Notice to dispute the claim. During such thirty (30)-day period, the Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of the claim for indemnification. If the Indemnifying Party does not give notice to the Indemnified Party that it disputes such claim within thirty (30) days after its receipt of the notice, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement. The Indemnifying Party and the Indemnified Party shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Action asserted or threatened against the Indemnified Party by a third party (a “Third Third-Party Claim”):
(i) against it, such The Indemnified Party shall give notice provide the Claim Notice to the Indemnifying Party not later than the tenth (10th) Business Day following the Indemnified Party’s receipt of the assertion of such Third Third-Party Claim, or, if sooner, not later than the tenth (10th) Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided, that if either such Business Day occurs on or prior to the Effective Date, the Claim Notice shall be timely provided if it is provided not later than the Business Day following the Effective Date; and provided, further, that the failure to notify the Indemnifying Party will timely provide a Claim Notice shall not relieve the Indemnifying Party of any liability that it may have to any Indemnified Partyits obligations hereunder, except to the extent that such failure has a material prejudicial effect on the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice defenses or other rights available to the Indemnifying Party pursuant with respect to Section 8.5(asuch Third-Party Claim.
(ii) During the period ending on the earlier of the assertion thirtieth (30th) calendar day following the Indemnifying Party’s receipt of the Claim Notice and the fifth (5th) calendar day preceding the date on which an appearance is required to be made before a Third Party Claimcourt, then arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to notify the Indemnified Party of its election to assume and control the defense of such Third the Third-Party Claim; provided, the Indemnifying Party shall notthat, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume control, and the Indemnified Party will be entitled to have control over, the defense or settlement of any Third-Party Claim solely to the extent (1) the Third-Party Claim involves a criminal proceeding, action, indictment, allegation or investigation; (2) the Third-Party Claim seeks injunctive relief; (3) the Third-Party Claim could result in suspension or debarment of Buyer by a Governmental Entity; (4) Losses are reasonably expected by Buyer to exceed the Cap Amount (or retainthe unused portion thereof); (5) any insurer requires, as applicable) control a condition to an Indemnified Party’s eligibility to recover insurance proceeds on account of such Third-Party Claim, that such insurer control the matter; (6) the Third-Party Claim involves a Significant Distributor or a Significant Supplier; (7) a court of competent jurisdiction has ruled that the Indemnifying Party is not reasonably, diligently or in good faith conducting a defense of the Third-Party Claim; or (8) the Indemnified Party has been advised in writing by legal counsel that a conflict of interest exists which, under applicable principles of legal ethics, would prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such Third-Party Claim.
(A) In the event that the Indemnifying Party is entitled to and duly and timely makes such election, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and the Indemnifying Party shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third-Party Claim. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose and the Indemnifying Party shall give due consideration to any reasonable suggestions of the Indemnified Party and its counsel; provided, that the fees and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 6.4; provided, further, that, (x) if, in the reasonable written opinion of counsel to the Indemnified Party, there are specific defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party, then the reasonable and documented fees and expenses of one external law firm to the Indemnified Party shall be paid pursuant to Section 6.4(b)(iv)(A); and (y) if (i) the claim Indemnified Party and Indemnifying Party are both named parties to the proceedings and, in the reasonable written opinion of counsel to the Indemnified Party, it would be inappropriate for indemnification relates both parties to be represented by the same counsel due to actual or arises potential conflicts between them or (ii) the Indemnified Party assumes the defense of a Third-Party Claim after a court of competent jurisdiction has ruled that the Indemnifying Party has failed diligently to defend a Third-Party Claim it has assumed pursuant to the first sentence of this Section 6.4(b)(ii)(A), the Indemnifying Party shall bear the reasonable and documented out-of-pocket costs and expenses of one additional counsel (in addition to, but only to the extent necessary, one local counsel) which shall represent all Indemnified Party claims arising out of the same or similar set of circumstances in connection with such defense. If the Indemnifying Party shall control the defense of any criminal claim or actionsuch claim, indictment or allegation against the Indemnifying Party shall be entitled to settle such claims; provided, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably conditioned, withheld or delayed), settle, compromise or offer to settle, compromise or cease to defend such Third-Party Claim if such settlement, compromise or cessation would result in (i) any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party, (ii) the Indemnifying imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely mannerany of its Affiliates, or (iii) a finding or admission of a violation of Law or a violation of the claim for indemnification relates to rights of any Person by the Indemnified Party or arises in connection with any of its Affiliates, (iv) a Tax which is assessed finding or proposed to be assessed admission that would have an adverse effect on other claims made or threatened against Buyer the Indemnified Party or any of its Affiliates or (v) any non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates.
(cB) With respect to any Third If the Indemnifying Party Claim subject to indemnification under this Article VIII: (i) both is not entitled to or does not duly and timely make such election or (ii) after timely making such election, a court of competent jurisdiction rules that the Indemnifying Party has failed diligently to defend such Third-Party Claim, the Indemnified Party shall be entitled but not obligated to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the sole power (as between the Indemnified Party and the Indemnifying Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third-Party Claim; provided, that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third-Party Claim shall not otherwise be affected by such election. Notwithstanding anything to the contrary set forth in the foregoing sentence, the Indemnifying Party shall have no liability with respect to a Third-Party Claim settled or compromised without its prior written consent (which shall not be unreasonably conditioned, withheld or delayed).
(iii) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third-Party Claims, including by providing reasonable access (subject to the provisions of Section 5.6) to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third-Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third-Party Claims. The Person controlling the defense of a Third-Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, to make comments to the materials filed or submitted in such defense, and shall keep consider such comments in good faith.
(iv) All reasonable and documented out-of-pocket legal fees, costs and expenses actually incurred or suffered by the other Person fully informed Indemnifying Party and the Indemnified Party in connection with investigating and defending, and cooperating in the investigation and defense of, the Third-Party Claim (“Third-Party Claim Expenses”) shall be paid as follows:
(A) Any Third-Party Claim Expenses actually incurred or suffered by the Indemnified Party (1) under the circumstances described in clauses (x) and (y) of the status second sentence of such Third Section 6.4(b)(ii)(A), or (2) under the circumstances described in Section 6.4(b)(ii)(B), except for any Third-Party Claim Expenses incurred or suffered in connection with a Third-Party Claim settled without the prior written consent of the Indemnifying Party shall constitute Losses for which the Indemnified Party shall be entitled to be reimbursed if the Indemnified Party is determined pursuant to a Final Determination to be entitled to be indemnified, held harmless and any related claims at all stages thereof where such Person is not represented by its own counsel, and (ii) reimbursed pursuant to this Article VI in respect of the Parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Third-Party Claim.
(dB) In the event an Indemnified Third-Party has a claim hereunder that does Claim Expenses not involve a claim being asserted against or sought to be collected addressed by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30Section 6.4(b)(iv)(A) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of paid by the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed Person by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3which they were incurred.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Claim Procedures. (a) For purposes In order for an Indemnified Party to duly make a valid claim under Section 9.2, the Indemnified Party must promptly, but in no event later than 60 days from the date that the Indemnified Party first becomes aware of this Section 8.5such claim, a party making provide written notice to the Sellers’ Representative (in the case of a claim for indemnity under Section 8.1 is hereinafter referred to as an “made by a Parent Indemnified Party” and ) or to Parent (in the party against whom case of a claim made by a Company Group Indemnified Person) (the recipient of such claim is asserted is hereinafter referred to as notice, the “Indemnifying Party.” Promptly after receipt by an ”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 9.2 which the Indemnified Party alleges to have occurred (including, if applicable, an identification of notice any specific representation that is alleged to have been breached), a description of the assertion facts and circumstances giving rise to such occurrences, the estimated amount of Losses imposed, incurred, suffered or asserted in connection therewith or arising therefrom (to the extent then ascertainable), and, to the extent practicable, any other material details pertaining thereto (a claim “Claim Notice”); provided, however, that, subject to and without limitation of Section 9.1, any failure or delay by the Indemnified Party in delivering a Claim Notice to the Indemnifying Party shall not affect the Indemnified Party’s right to indemnification under this Article IX, except to the extent the Indemnifying Party has been prejudiced by such failure or delay. The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith.
(b) In the event the Claim Notice results from any Proceeding asserted or threatened against the Indemnified Party by a third party (a “Third Third-Party Claim”):
(i) against it, such The Indemnified Party shall give notice provide the Claim Notice to the Indemnifying Party not later than 10 Business Days following the Indemnified Party’s receipt of the assertion of such Third Third-Party Claim, and, in any event, not less than 10 Business Days preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding; provided that the failure to notify the Indemnifying Party will timely provide a Claim Notice shall not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, its obligations under this Agreement except to the extent that such failure has a material prejudicial effect on the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice defenses or other rights available to the Indemnifying Party pursuant with respect to Section 8.5(asuch Third-Party Claim.
(ii) During the period ending on the earlier of 30 calendar days following the Indemnifying Party’s receipt of the assertion of Claim Notice and five calendar days preceding the date on which an appearance is required to be made before a Third Party Claimcourt, then arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to notify the Indemnified Party of its election to assume and control the defense of such Third the Third-Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to Third-Party Claim seeks an injunction or arises in connection with any criminal claim other equitable or action, indictment or allegation non-monetary relief against the Indemnified Party, (ii) the Indemnifying Third-Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or Claim arises in connection with any criminal matter, (iii) there is a reasonable probability that the Third-Party Claim may adversely affect in any material respect the Indemnified Party or its Affiliates other than as a result of monetary damages, or (iv) the Third-Party Claim is with respect to Taxes or Tax matters, in which case it shall be governed by Section 7.3 rather than this Section 9.3(b). Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof either (I) at its own expense or (II) at the Indemnifying Party’s cost and expense if (1) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, (2) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable or (3) one or more defenses are available to the Indemnified Party that are not available to the Indemnifying Party (provided that, in the case of clauses (1), (2) or (3), the Indemnifying Party shall not be liable for the fees and expenses of more than one firm of counsel for all Indemnified Parties, other than local counsel, in any action or claim or group of related actions or claims).
(1) If that the Indemnifying Party duly and timely makes such election, such election shall constitute the Indemnifying Party’s conclusive acknowledgment that the Indemnified Party is assessed or proposed entitled to be assessed indemnified, defended, held harmless and reimbursed in accordance with this Article IX for, from and against Buyer the Third-Party Claim, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third-Party Claim. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose on its account; provided that, if in the reasonable opinion of counsel to the Indemnified Party, there are defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party, then the reasonable fees and expenses of one external law firm to the Indemnified Party shall be paid by the Indemnifying Party; provided, further, that, if (i) the Indemnified Party and Indemnifying Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts between them or (ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to pursue a Third-Party Claim it has assumed in a reasonably diligent manner, as provided in the first sentence of Section 9.3(b)(ii)(2), the Indemnifying Party shall bear the reasonable and documented out-of-pocket costs and expenses of one additional counsel (in addition to, but only to the extent necessary, one local counsel) which shall represent all Indemnified Parties arising out of the same or similar set of circumstances in connection with such defense. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall be entitled to settle such claims; provided that, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle, compromise or cease to defend such Third-Party Claim if such settlement, compromise or cessation would result in (A) any monetary Liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party; (B) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates; (C) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates; (D) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates which are not indemnifiable under this Agreement; or (E) any non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates.
(c2) With If the Indemnifying Party (A) does not duly and timely make such election, or (B) after timely making such election, fails to take reasonable steps to defend diligently the Third-Party Claim within ten (10) Business Days after its receipt of written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall be entitled but not obligated to notify the Indemnifying Party of its election to assume and control such defense from the Indemnifying Party, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 9.3(b)(ii)(1); provided that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third-Party Claim shall not otherwise be affected by such election. Notwithstanding the foregoing, the Indemnifying Party shall have no Liability with respect to any Third a Third-Party Claim subject settled without its prior written consent (such consent not to indemnification under this Article VIII: be unreasonably withheld, conditioned or delayed).
(i3) both the The Indemnified Party and the Indemnifying Party shall cooperate to ensure the proper and adequate investigation and defense of all Third-Party Claims. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third-Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third-Party Claims. The Person controlling the defense of a Third-Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, shall keep to make comments to the other Person fully informed of the status of materials filed or submitted in such Third Party Claim and any related claims at all stages thereof where such Person is not represented by its own counseldefense, and (ii) the Parties agree (each at its own expense) to render to each other shall consider such assistance as they may reasonably require of each other and to cooperate comments in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claimfaith.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Claim Procedures. (a) Except as set forth in Section 9.04(b) below, an Indemnified Party that desires to make a Claim for indemnification pursuant to this Article IX will provide notice (a “Claim Notice”) thereof in writing to Seller or Buyer, as applicable (in each such case, an “Indemnifying Party”), specifying the nature and basis for such Claim and a copy of all papers served with respect to such Claim (if any). For purposes of this Section 8.5Section 9.04, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of written notice of the assertion of a claim Claim by a third party against such Indemnified Party that such Indemnified Party believes (based on the information then available) would give rise to a claim for indemnification pursuant to Section 9.02 or Section 9.03 (a “Third Third-Party Claim”) against it, such Indemnified Party shall give notice will require prompt delivery of a Claim Notice to the Indemnifying Party of the assertion receipt of such Third Third-Party Claim; provided provided, however, that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the an Indemnified Party’s failure to give send or delay in sending a Claim Notice will not relieve an Indemnifying Party from liability hereunder with respect to such notice. If an Indemnified Party gives notice Claim except to the extent and only to the extent the Indemnifying Party pursuant is materially prejudiced by such failure or delay.
(b) With respect to Section 8.5(athe Specified Matter:
(i) Following the Closing, the Company shall continue to control the defense of the assertion of a Third Party ClaimSpecified Matter.
(ii) Notwithstanding the foregoing clause (a), then the Indemnifying Party Seller shall be entitled to participate in the defense of the Specified Matter and to employ separate counsel of its choice for such Third Party Claim andpurpose, to in which case the extent that it wishes, to assume the defense fees and expenses of such Third Party Claim, with separate counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party shall be borne by Seller.
(iii) The Company shall (i) notify Seller of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party significant developments in connection with the defense of such Third Party ClaimSpecified Matter reasonably promptly (and, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does notevent, within ten (10) 10 days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of following any such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Partydevelopments), (ii) keep Seller reasonably informed of the Indemnifying Party fails to vigorously status of the Specified Matter and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) consult with Seller as to the claim for indemnification relates to resolution of any issue that would materially and adversely affect Seller or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(civ) With respect The Company shall provide Seller a reasonable opportunity to any Third Party Claim subject to indemnification under this Article VIII: (i) both review and comment on any filings to be made by the Indemnified Party and Company or any of its Affiliates in connection with the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims at all stages thereof where such Person is not represented by its own counsel, Specified Matter and (ii) the Parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other participate in any settlement discussions and to cooperate negotiations in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict connection with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall governSpecified Matter.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Precigen, Inc.)
Claim Procedures. (a) For purposes of this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by a third party (a “Third Party Claim”) against it, such An Indemnified Party shall give Compost, Miami and Bedminster notice of any matter which an Indemnified Party has determined, in good faith, and based on actual disclosure to or actual knowledge by any such Indemnified Party, has given or could give rise to a right of indemnification under Section 16.01 of this Agreement, within ninety (90) days of such determination, stating the estimated amount of the Loss, if known, and the method of computation thereof, and containing a reference to the Indemnifying provisions of this Agreement and the applicable Transaction Documents in respect of which such right of indemnification is claimed or arises.
(b) The obligations and Liabilities of Compost, Miami and Bedminster, under Section 16.01 of this Agreement, with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Section 16.01 ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: (i) if an Indemnified Party shall receive notice of any Third Party Claim, the assertion Indemnified Party shall give Compost, Miami and Bedminster notice of such Third Party Claim; provided Claim within thirty (30) days of the receipt by the Indemnified Party of such notice, provided, however, that the failure to notify provide such notice shall not release Compost, Miami or Bedminster from any of its or their obligations under this Article XVI except to the Indemnifying Party will extent that Compost, Miami and/or Bedminster is or are materially prejudiced by such failure, and shall not relieve the Indemnifying Party of Compost, Miami or Bedminster from any liability other obligation or Liability that it or they may have to any Indemnified PartyParty otherwise than under this Article XVI; and, except (ii) if Compost, Miami or Bedminster acknowledges in writing its or their obligation to indemnify the extent Indemnified Party hereunder against any Losses that the Indemnifying may result from such Third Party demonstrates that Claim, then Compost, Miami and Bedminster shall be entitled to assume and control the defense of such Third Party Claim is prejudiced by at its and their expense and through counsel of its and their choice if Compost, Miami and/or Bedminster give notice of their intention to do so to the Indemnified Party within five (5) days of the receipt of such notice from the Indemnified Party’s failure , provided, however, that if there exists or is reasonably likely to give such notice. If an exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claimand Compost and/or Miami and/or Bedminster, then the Indemnifying Indemnified Party shall be entitled to participate retain its own counsel, in each jurisdiction for which the Indemnified Party determines counsel is required, at the expense of Compost, Miami and Bedminster. In the event that Compost, Miami and Bedminster exercise the right to undertake any such defense of against any such Third Party Claim andas provided above, the Indemnified Party shall cooperate with Compost, Miami and Bedminster in such defense and make available to Compost, Miami and Bedminster, at Compost's and Miami's and Bedminster's sole expense, all witnesses, pertinent records, materials and information in the extent that it wishesIndemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonable required by Compost, to assume Miami and/or Bedminster. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense of against any such Third Party Claim, Compost, Miami and Bedminster shall cooperate with counsel reasonably satisfactory the Indemnified Party in such defense and make available to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of , at Compost's and Miami's and Bedminster's expense, all such Third Party Claimwitnesses, the Indemnifying Party shall notrecords, so long materials and information in Compost's or Miami's or Bedminster's possession or under Compost's and/or Miami's and/or Bedminster's control relating thereto as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred is reasonably required by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigationParty. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in No such Third Party Claim may be settled by Compost, Miami or any compromise or settlement effected by Bedminster without the prior written consent of the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect Each party shall within ninety (90) days of learning of any asserted liability or damage claimed to any Third Party Claim subject give rise to indemnification under this Article VIII: (i) both hereunder notify the party obligated to indemnify it hereof in writing provided, however, that the failure of the Indemnified Party to so notify the indemnifying party shall not relieve the indemnifying party of its obligations hereunder unless, and only to the Indemnifying Partyextent that, as such failure to notify prejudices the case may beindemnifying party. Thereafter, the indemnifying party shall keep have, at its election, the right to compromise or defend any such matter at its sole cost and expense through counsel chosen by it. If the indemnifying party so undertakes to compromise and defend, the indemnifying party shall notify the other Person fully informed party of its intention to do so. If the status of indemnifying party fails to defend such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third partymatter diligently, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to may assume control of the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt defense of such notice that matter. Each party agrees in all cases to cooperate with the Indemnifying Party disputes defending party and its counsel in the compromise of or defending of any such claimliabilities or claims. The defending party and the nondefending party may be represented by the same counsel unless such representation would be inappropriate due to actual or potential differing interests between them. In addition, the amount nondefending party shall at all times be entitled to monitor such defense through the appointment of such claim shall be conclusively deemed a liability counsel of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d)its own choosing, the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared at its own cost and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3expense.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Samples: Credit, Capitalization and Financing Agreement (Compost America Holding Co Inc)
Claim Procedures. (a) For purposes If any of the Persons to be indemnified under this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an Article 8 (the “Indemnified Party” and ”) has suffered or incurred any Loss, the Indemnified Party shall so notify the party against from whom such claim indemnification is asserted is hereinafter referred to as sought (the “Indemnifying Party.” Promptly after receipt by an ”) promptly (but in any event, no more than 30 days following the first date following the Closing Date on which such Indemnified Party has knowledge of the facts, matters or circumstances from which it is reasonably apparent that such an occurrence is likely to have occurred in writing, describing such Loss), the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement, the Bill of Sale, or any other instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred (a “Claim Notice”); provided, that no failure to give notice of such claim prior to the assertion expiration of such 30-day period and no defect in the information contained in any such Claim Notice shall relieve the Indemnifying Party from any obligation under this Article 8 except to the extent that such failure or defect actually prejudices such Indemnifying Party. The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice. The Indemnifying Party and the Indemnified Party shall use reasonable best efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a claim Third Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Action asserted or threatened against, the Indemnified Party by a third party (a “Third Party Claim”):
(i) against it, such The Indemnified Party shall give notice promptly (but in any event, no more than 10 Business Days following the Indemnified Party’s receipt of the Third Party Claim and in any event no later than the 20th Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in an Action) notify (the “Third Party Claim Notice”) the Indemnifying Party of the assertion of such Third Party Claim; provided provided, that no failure by the failure Indemnified Party to notify the Indemnifying deliver any such Third Party will not Claim notice shall relieve the Indemnifying Party of any liability that it may have to any Indemnified Partyobligation under this Article 8, except to the extent that such failure actually prejudices such Indemnifying Party.
(ii) The Indemnifying Party under this Article 8 shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within 30 days of receipt of a Third Party Claim Notice (or the fifth day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or other similar pleading is required to be filed in an Action) from the Indemnified Party with respect thereto, to assume conduct and control, at the expense of the Indemnifying Party demonstrates and through counsel of its choosing that is reasonably acceptable to the defense of Indemnified Party, the Third Party Claim identified in such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such noticeNotice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in control the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of any such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to indemnify the Indemnified Party under this Article VIII for all judgments, awards, damages and settlement costs and obligations arising from such Third Party Claim and shall not consent to the entry of any judgment or Article VII for enter into any fees of other counsel compromise or any other expenses settlement with respect to such claims without the defense prior written consent of the Indemnified Party, unless such judgment, settlement, compromise or offer to settle, compromise or cease to defend such Third Party Claim (A) provides for the payment by the Indemnifying Party of money as sole relief for the claimant, (B) results in the full and general release of all Indemnified Parties from all liabilities arising or relating to, or in connection with, the Third Party Claim, in each caseand (C) involves no finding or admission of any violation of Law or the rights of any Person and no effect on any other claims that may be made against the Indemnified Party or any of its Affiliates. The Indemnifying Party shall permit the Indemnified Party to participate in, subsequently incurred but not control, the defense of any such action or suit through counsel chosen by the Indemnified Party; provided that the fees and expenses of such counsel shall be borne by the Indemnified Party.
(iii) If the Indemnifying Party in connection with does not duly and timely make such election, the defense Indemnified Party shall have the right to assume conduct and control of the Third Party Claim; provided, that the Indemnified Party may not compromise or settle any such Third Party Claim, other than reasonable costs Claim for which it is seeking indemnification hereunder without the consent of investigationthe Indemnifying Party. If the Indemnifying Party assumes elects not to control or conduct the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without nevertheless shall have the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of right to participate in the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion defense of any Third Party Claim and the Indemnifying Party does notand, within ten (10) days after the Indemnified Party’s notice is givenat its own expense, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any employ counsel of its Affiliatesown choosing for such purpose.
(c) With respect to any Third Party Claim subject to indemnification under this Article VIII: (i) both the The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate investigation and defense of all Third Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees, for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third Party Claims. The Person controlling the defense of a Third Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, shall keep to make comments to the other Person fully informed of the status of materials filed or submitted in such Third Party Claim and any related claims at all stages thereof where such Person is not represented by its own counseldefense, and (ii) the Parties agree (each at its own expense) to render to each other shall consider such assistance as they may reasonably require of each other and to cooperate comments in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claimfaith.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Claim Procedures. (a) For purposes of this Section 8.5, a party making a A claim for indemnity any breach of any representation or warranty under Section 8.1 is hereinafter referred Article III, Article IV and Article V (each a “Claim”) may be asserted by written notice (specifying in reasonable detail, to as an “Indemnified Party” the extent known at that time, the fact, matter, event or circumstance giving rise to the potential Claim and the amount likely to be claimed in respect thereof) to the Party that is considered to be in breach of that representation or warranty; provided, however, that failure to so notify shall not preclude the innocent Party from bringing any Claim in accordance with this Article VIII so long as such notification is given prior to the expiry of the Survival Period. Such notice shall state in reasonable detail the basis of that Claim.
(b) In the event that any Legal Proceedings shall be instituted or that any claim or demand shall be asserted by any third party against whom such claim is asserted is hereinafter referred to as a Party (the “Indemnifying Recipient Party.” Promptly after receipt by an Indemnified Party ”) in respect of notice which a Claim may be brought (regardless of the assertion of a claim by a third party limitations set forth in Section 8.3) (a “Third Party Claim”) against it), such Indemnified the Recipient Party shall give promptly cause written notice to the Indemnifying Party of the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes, to assume the defense of such Third Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and of which it has Knowledge which may be subject to a Claim to be forwarded to the Indemnifying Party does notagainst whom that Claim may be brought (the “Notified Party”). The failure of the Recipient Party to give reasonably prompt notice of any Third Party Claim shall not release, within ten (10) days after waive or otherwise affect the Indemnified Notified Party’s notice is given, give notice obligations with respect thereto except to the Indemnified extent that the Notified Party can demonstrate actual loss and prejudice as a result of such failure. Subject to the provisions of this Section 8.2, the Notified Party shall have the right, at its sole expense, to be represented by counsel of its choice, which must be reasonably satisfactory to the Recipient Party, and to defend against, negotiate, settle or otherwise deal with any Third Party Claim; provided that the Notified Party shall have acknowledged and agreed in writing to the Recipient Party that it shall indemnify the Recipient Party in respect of the Third Party Claim and any action taken by that Notified Party pursuant to the terms of this Section 8.2. If the Notified Party elects to defend against, negotiate, settle or otherwise deal with any Third Party Claim, it shall within five days of the Recipient Party’s written notice of the assertion of such Third Party Claim (or sooner, if the nature of the Third Party Claim so requires) notify the Recipient Party of its intent to do so; provided, that the Indemnifying Party’s Notified Party must conduct the defense of the Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard. If the Notified Party elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim or fails to notify the Recipient Party of its election to as herein provided, the Recipient Party may defend against, negotiate, settle or otherwise deal with such Third Party Claim. If the Notified Party shall assume the defense of any Third Party Claim, the Recipient Party may participate, at his or its own expense, in the defense of such Third Party Claim; provided, then however, that such Recipient Party shall be entitled to participate in any such defense with separate counsel: (i) at the Indemnifying expense of the Notified Party will if so requested in writing by the Notified Party to participate; or (ii) in the reasonable opinion of counsel to the Recipient Party, a conflict or potential conflict exists between the Notified Party and the Recipient Party that would make such separate representation advisable. The parties hereto agree to provide reasonable access to the other to such documents and information as may be bound by reasonably requested in connection with the defense, negotiation or settlement of any determination made such Third Party Claim, except any document or information that is subject to privilege. Notwithstanding anything in such this Section 8.2 to the contrary, no Party shall, without the written consent of the other applicable party, settle or compromise any Third Party Claim or permit a default or consent to entry of any compromise judgment unless the claimant or settlement effected by claimants and such party provide to such other party an unqualified release from all liability in respect of the Indemnified Party.
(b) Notwithstanding Third Party Claim. If the foregoing, the Indemnifying Notified Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with makes any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to payment on any Third Party Claim subject Claim, the Recipient Party shall be subrogated, to indemnification under this Article VIII: (i) both the Indemnified Party extent of such payment, to all rights and the Indemnifying Party, as the case may be, shall keep the other Person fully informed remedies of the status Recipient Party to any insurance benefits or other claims of the Recipient Party with respect to such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(dc) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against After any final decision, judgment or sought to be collected award shall have been rendered by a third partyGovernmental Body of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the Indemnified Recipient Party and the Notified Party shall with reasonable promptness send notice have arrived at a mutually binding agreement, in each case with respect to such claim an Third Party Claim hereunder, if the Notified Party has agreed to indemnify the Indemnifying Party. If Recipient Party in connection with the Indemnifying Third Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made Claim in accordance with this Section 8.5(d)8.2, the Indemnified Recipient Party shall have fifteen (15) calendar days to respond in a written statement forward to the objection Notified Party notice of any sums due and owing by the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as Notified Party pursuant to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties this Agreement with respect to each such matter and the Notified Party shall pay all of such claims. If remaining sums so due and owing to the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict Recipient Party in accordance with Section 11.3the terms hereof by wire transfer of immediately available funds within five Business Days after the date of such notice.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Samples: Stock Purchase Agreement (National Energy Services Reunited Corp.)
Claim Procedures. (a) For purposes of Each Person entitled to indemnification under this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as Article VII (each an “Indemnified Party” and ”) agrees that after it becomes aware of facts giving rise to a claim by it for indemnification pursuant to this Article VII, such Indemnified Party shall assert its claim for indemnification under this Article VII (each, a “Claim”) by promptly providing a written notice (a “Claim Notice”) to the party against whom such claim is asserted is hereinafter referred Person required to as the provide indemnification protection under this Article VII (each, an “Indemnifying Party.” Promptly after receipt by ”) specifying, in reasonable detail, the nature and basis for such Claim (including identifying the relevant provisions of this Agreement upon which such Claim is based), the amount of Losses associated therewith (or a reasonable estimate thereof if reasonably practicable) and shall include copies of all material written correspondence and documentation with respect to any such Claim. Notwithstanding the foregoing, an Indemnified Party’s delay in sending a Claim Notice will not relieve the Indemnifying Party of notice of from Liability hereunder with respect to such Claim except to the assertion of a claim extent and only to the extent the Indemnifying Party is prejudiced by such delay.
(b) If any Proceeding is begun, made or instituted by a third party that is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of any of the foregoing (a “Third Third-Party Claim”) against it), or if a written notice or claim is made that threatens or is reasonably likely to lead to a Third-Party Claim, as a result of which an Indemnifying Party may become obligated to an Indemnified Party hereunder, such Indemnified Party shall give notice a Claim Notice to the Indemnifying Party. Such Claim Notice shall promptly be provided to the Indemnifying Party, and in any event, not more than fifteen (15) days after the Indemnified Party receives written notice of the assertion of such Third any threatened or actual Third-Party Claim; provided that the failure to notify the Indemnifying Party will not timely deliver such Claim Notice shall only relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except its obligations hereunder to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is actually prejudiced by the Indemnified Party’s failure to give such noticedelay. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the The Indemnifying Party shall be entitled to participate in the defense of defend and contest such Third Third-Party Claim and, at its sole cost and expense and with the Indemnifying Party’s own counsel by delivering written notice to the extent that it wishes, Indemnified Party of its intention to assume the defense of such Third Third-Party Claim, with counsel reasonably satisfactory to Claim within fifteen (15) days of the Indemnified Party’s receipt of the Claim Notice. After notice from Subject to the below, the Indemnified Party shall have the right, but not the obligation, to participate at its own expense (which expense shall not constitute an indemnifiable Loss hereunder) in the defense thereof by counsel of the Indemnified Party’s choice and shall in any event cooperate in good faith with and assist the Indemnifying Party to in the Indemnified conduct of such defense. If (i) the Indemnifying Party of its election elects not to assume the defense of such Third Third-Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable Claim or fails to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by promptly notify the Indemnified Party in connection writing of its election to defend as provided in this Agreement, (ii) the reasonably anticipated potential Losses are greater than the potential liability of the Indemnifying Party hereunder with respect to such matter, (iii) such Third-Party Claim involves any then current customer, vendor, employee or consultant of Purchaser or any of its Affiliates (including the defense of Group Companies) or (iv) the Third-Party Claim involves criminal liability for, or if material equitable relief is sought against, the Indemnified Party, then the Indemnified Party shall have the right to defend and contest such Third Third-Party Claim, other than reasonable costs of investigationincluding the right to make any compromise or settlement thereof (except as set forth below), and the Indemnified Party shall be entitled to seek indemnification for any and all Losses based upon or arising from such Third-Party Claim. If the Indemnifying Party assumes the defense of a Third any Third-Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims claims may be effected by the Indemnifying Party without the Indemnified Party’s consent (not to be unreasonably withheld, conditioned or delayed) unless (Ai) there is no such settlement does not involve a finding or admission of any violation of applicable Legal Requirements or any violation wrongdoing on the part of the rights of any Indemnified Party; Party and (Bii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) . If the Indemnified Party has no liability with respect assumed the defense pursuant to such compromise or settlement. If notice is given this Section 7.4(b), it shall not agree to an Indemnifying Party any settlement without the written consent of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will which consent shall not be entitled to assume (unreasonably withheld, conditioned or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliatesdelayed).
(c) With respect An Indemnifying Party shall have thirty (30) days after its receipt of a Claim Notice which does not relate to any Third a Third-Party Claim subject (such indemnification claim being hereinafter referred to indemnification under this Article VIII: (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related claims at all stages thereof where such Person is not represented by its own counsel, and (ii) the Parties agree (each at its own expensea “Direct Claim”) to render to each other such assistance as they may reasonably require of each other and to cooperate respond in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send notice with respect writing to such claim to the Indemnifying PartyDirect Claim. If the Indemnifying Party does not notify notifies the Indemnified Party within thirty (30) calendar days from that it does not dispute the date of receipt of Direct Claim described in such notice that the Indemnifying Party disputes such claimClaim Notice, the Loss in the amount of such claim shall specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party hereunderand the Indemnified Party shall be entitled to recover the amount of such Loss from the Indemnifying Party in accordance with the terms of this Article VII. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d)does not so respond within such thirty (30)-day period or responds that it disputes the Direct Claim, the Indemnifying Party and the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt proceed in good faith to negotiate a resolution of such dispute for a period of at least thirty (30) calendar days and if such dispute is not resolved through such negotiation prior to agree upon the rights of the respective Parties with respect to each expiration of such claims. If the Parties should so agreeperiod, a memorandum setting forth such agreement shall dispute may be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict resolved in accordance with Section 11.38.15.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (E2open Parent Holdings, Inc.)
Claim Procedures. (a) For purposes of this Section 8.5, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by a third party (a “Third Party Claim”) against it, such An Indemnified Party shall give Lionhart, LHI and GEP notice of any matter which an Indemnified Party has determined, in good faith, and based on actual disclosure to or actual knowledge by any such Indemnified Party, has given or could give rise to a right of indemnification under Section 16.02 of this Agreement, within ninety (90) days of such determination, stating the estimated amount of the Loss, if known, and the method of computation thereof, and containing a reference to the Indemnifying provisions of this Agreement and the applicable Credit Documents and Definitive Supplemental Documents in respect of which such right of indemnification is claimed or arises.
(b) The obligations and Liabilities of Lionhart, LHI and GEP, under Section 16.02 of this Agreement, with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Section 16.02 ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: (i) if an Indemnified Party shall receive notice of any Third Party Claim, the assertion Indemnified Party shall give Lionhart, LHI and GEP notice of such Third Party Claim; provided Claim within thirty (30) days of the receipt by the Indemnified Party of such notice, provided, however, that the failure to notify provide such notice shall not release Lionhart, LHI or GEP from any of its or their obligations under this Article XVI except to the Indemnifying Party will extent that Lionhart, LHI and/or GEP is or are materially prejudiced by such failure, and shall not relieve the Indemnifying Party of Lionhart, LHI or GEP from any liability other obligation or Liability that it or they may have to any Indemnified PartyParty otherwise than under this Article XVI; and, except (ii) if Lionhart, LHI or GEP acknowledges in writing its or their obligation to indemnify the extent Indemnified Party hereunder against any Losses that the Indemnifying may result from such Third Party demonstrates that Claim, then Lionhart, LHI and GEP shall be entitled to assume and control the defense of such Third Party Claim is prejudiced by at its and their expense and through counsel of its and their choice if Lionhart, LHI and/or GEP give notice of their intention to do so to the Indemnified Party within five (5) days of the receipt of such notice from the Indemnified Party’s failure , provided, however, that if there exists or is reasonably likely to give such notice. If an exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claimand Lionhart and/or LHI and/or GEP, then the Indemnifying Indemnified Party shall be entitled to participate retain its own counsel, in each jurisdiction for which the Indemnified Party determines counsel is required, at the expense of Lionhart, LHI and GEP. In the event that Lionhart, LHI and GEP exercise the right to undertake any such defense of against any such Third Party Claim andas provided above, the Indemnified Party shall cooperate with Lionhart, LHI and GEP in such defense and make available to Lionhart, LHI and GEP, at Lionhart's, LHI's and GEP's sole expense, all witnesses, pertinent records, materials and information in the extent that it wishesIndemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonable required by Lionhart, to assume LHI and/or GEP. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense of against any such Third Party Claim, Lionhart, LHI and GEP shall cooperate with counsel reasonably satisfactory the Indemnified Party in such defense and make available to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of , at Lionhart's, LHI's and GEP's expense, all such Third Party Claimwitnesses, the Indemnifying Party shall notrecords, so long materials and information in Lionhart's or LHI's or GEP's possession or under Lionhart's and/or LHI's and/or GEP's control relating thereto as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred is reasonably required by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigationParty. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in No such Third Party Claim may be settled by Lionhart, LHI or any compromise or settlement effected by GEP without the prior written consent of the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any criminal claim or action, indictment or allegation against the Indemnified Party, (ii) the Indemnifying Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, or (iii) the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect Each party shall within ninety (90) days of learning of any asserted liability or damage claimed to any Third Party Claim subject give rise to indemnification under this Article VIII: (i) both hereunder notify the party obligated to indemnify it hereof in writing provided, however, that the failure of the Indemnified Party to so notify the indemnifying party shall not relieve the indemnifying party of its obligations hereunder unless, and only to the Indemnifying Partyextent that, as such failure to notify prejudices the case may beindemnifying party. Thereafter, the indemnifying party shall keep have, at its election, the right to compromise or defend any such matter at its sole cost and expense through counsel chosen by it. If the indemnifying party so undertakes to compromise and defend, the indemnifying party shall notify the other Person fully informed party of its intention to do so. If the status of indemnifying party fails to defend such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third partymatter diligently, the Indemnified Party shall with reasonable promptness send notice with respect to such claim to may assume control of the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt defense of such notice that matter. Each party agrees in all cases to cooperate with the Indemnifying Party disputes defending party and its counsel in the compromise of or defending of any such claimliabilities or claims. The defending party and the nondefending party may be represented by the same counsel unless such representation would be inappropriate due to actual or potential differing interests between them. In addition, the amount nondefending party shall at all times be entitled to monitor such defense through the appointment of such claim shall be conclusively deemed a liability counsel of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d)its own choosing, the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared at its own cost and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3expense.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Samples: Credit, Capitalization and Financing Agreement (Compost America Holding Co Inc)
Claim Procedures. A Party that intends to claim indemnification under this Agreement (athe “lndemnitee”) For purposes for Claims shall promptly notify the other Party (the “lndemnitor”) in writing of this Section 8.5such Claim in respect of which the Indemnitee or its directors, a party making a officers, members, employees, counsel, agents or representatives intends to claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” such indemnification, and the party against whom such claim is asserted is hereinafter referred Indemnitor, at its cost and expense, shall have the right to as the “Indemnifying Party.” Promptly after receipt by an Indemnified Party of notice of the assertion of a claim by a third party (a “Third Party Claim”) against itparticipate in, such Indemnified Party shall give notice to the Indemnifying Party of the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except and to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) of the assertion of a Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wisheslndemnitor so desires, to assume the defense of such Third Party Claim, thereof with counsel reasonably mutually satisfactory to the Indemnified PartyParties; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the fees and expenses to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the lndemnitor would be inappropriate due to actual or potential differing interests between such lndemnitee and the other Party represented by such counsel in such proceeding. After notice from the Indemnifying Party to the Indemnified Party of its election to assume The Indemnitor shall control the defense and/or settlement of any such Third Party ClaimClaims, the Indemnifying Party and this indemnity agreement shall not, so long as it diligently conducts such defense, be liable not apply to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred amounts paid by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises lndemnitee in connection with any criminal claim or actionClaims if such payments are made without the consent of the Indemnitor. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such Claim, indictment or allegation against if and to the Indemnified Party, (ii) the Indemnifying Party fails extent prejudicial to vigorously and continuously prosecute or its ability to defend such claim in good faith or fails Claim, shall to begin such prosecution or defense in a timely manner, or (iii) extent relieve such Indemnitor of any liability to the claim for indemnification relates to or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(c) With respect to any Third Party Claim subject to indemnification Indemnitee under this Article VIII: (i) both 11. At the Indemnified Party Indemnitor’s request and expense, the Indemnifying Party, as Indemnitee and its employees and agents shall cooperate fully with the case may be, shall keep Indemnitor and its legal representatives in the other Person fully informed of the status of such Third Party Claim and any related claims 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 as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense investigation of any Third Party Claim.
(d) In the event an Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected Claims covered by a third party, the Indemnified Party shall with reasonable promptness send notice this indemnification and provide full information with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3thereto.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.
Appears in 1 contract
Samples: Processing and Supply Agreement (Capstone Dental Pubco, Inc.)
Claim Procedures. (a) For purposes In order for a Buyer Indemnified Party or a Seller Indemnified Party (any of this Section 8.5them, a party making a claim for indemnity under Section 8.1 is hereinafter referred to as an “Indemnified Party” and ”) to duly make a valid claim under Section 7.2 or Section 7.3, the party against whom Indemnified Party must promptly provide written notice to Seller (for claims made by Buyer Indemnified Parties) or to Buyer (for claims made by Seller Indemnified Parties) (the recipient of such claim is asserted is hereinafter referred to as notice, the “Indemnifying Party.” Promptly after receipt by an ”), which notice shall set forth a description in reasonable detail of the occurrence(s) specified in Section 7.2 or Section 7.3 which the Indemnified Party of notice alleges to have occurred, a reasonable description of the assertion facts and circumstances giving rise to such occurrences, the estimated amount of Losses actually incurred or suffered as the result thereof (to the extent then ascertainable), and a claim description of any other remedy sought in connection therewith, any relevant time constraints relating thereto known to the Indemnified Party and, to the extent practicable, copies of any material details or notices received or served pertaining thereto (a “Claim Notice”). The failure to notify the Indemnifying Party on a prompt basis shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have actually and materially prejudiced the Indemnifying Party. The Indemnified Party shall cooperate with and provide to the Indemnifying Party such information under the Indemnified Party’s control as the Indemnifying Party may reasonably request for the purposes of determining the validity of the allegations made in the Claim Notice and shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments (including additional information which may come under the Indemnified Party’s control) in connection therewith. The Indemnifying Party and the Indemnified Party shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law) to third parties and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work product privileges.
(b) In the event the Claim Notice results from any Action asserted or threatened against the Indemnified Party by a third party (a “Third Third-Party Claim”), except as set forth in Section 5.6 with respect to Tax Claims:
(i) against it, such The Indemnified Party shall give notice provide the Claim Notice to the Indemnifying Party of no later than the assertion of such Third Party Claim; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by 15th Business Day following the Indemnified Party’s failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 8.5(a) receipt of the assertion of a Third Third-Party Claim, then and in any event no later than the 10th Business Day preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding.
(ii) During the period ending on the earlier of the 30th day following the Indemnifying Party’s receipt of the Claim Notice and the fifth Business Day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, the Indemnifying Party shall be entitled to participate notify the Indemnified Party in writing of its election to assume and control the defense of such Third the Third-Party Claim andClaim; provided, to however, the extent that it wishes, Indemnifying Party shall not be entitled to assume the defense of such Third a Third-Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After notice from Claim if (A) the Indemnifying Party to does not so notify the Indemnified Party of its such election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VIII or Article VII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, then (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnificationtime period specified above, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of applicable Legal Requirements or any violation of the rights of any Indemnified Party; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party has no liability with respect to such compromise or settlement. If notice is given to an Indemnifying Party of the assertion of any Third Third-Party Claim and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim, then the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying Party will not be entitled to assume (or retain, as applicable) control of such defense if (i) the claim for indemnification relates to or arises in connection with any Action involving or relating to a criminal claim or actioncompliance with Laws matter, indictment or allegation (C) the Indemnifying Party has failed or is failing to diligently prosecute or defend the Third-Party Claim.
(A) In the event that the Indemnifying Party duly and timely makes such election, such election shall constitute the Indemnifying Party’s conclusive acknowledgment that the Indemnified Party is entitled to be indemnified, defended, held harmless and reimbursed pursuant to this Article VII for, from and against the Third-Party Claim, the Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy relating to the Third-Party Claim. The Indemnified Party shall be entitled but not obligated to participate in any such defense and to employ separate counsel of its choosing for such purpose; provided, that the fees and expenses shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this Section 7.4. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall be entitled to settle such claims; provided, that, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle, compromise or cease to defend such Third-Party Claim if such settlement, compromise or cessation would not expressly and unconditionally release the Indemnified Party and its Affiliates or result in (i) any monetary liability of the Indemnified Party that shall not be promptly paid or reimbursed by the Indemnifying Party, (ii) the Indemnifying imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party fails to vigorously and continuously prosecute or defend such claim in good faith or fails to begin such prosecution or defense in a timely manner, any of its Affiliates or (iii) any finding or admission of guilt or wrongdoing on the claim for indemnification relates to part of the Indemnified Party or arises in connection with a Tax which is assessed or proposed to be assessed against Buyer or any of its Affiliates.
(cB) With If the Indemnifying Party does not duly and timely make such election, the Indemnifying Party shall assume and control such defense, whereupon the Indemnified Party and not the Indemnifying Party shall have the powers described in the first sentence of Section 7.4(b)(ii)(A); provided, that the Indemnified Party’s right to be indemnified, defended, held harmless and reimbursed in respect of the Third-Party Claim shall not otherwise be affected by such election; provided, further, that the Indemnified Party may not settle any such matter without the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed) if the Indemnified Party is seeking or shall seek indemnification hereunder with respect to any Third such matter. Notwithstanding anything to the contrary set forth in the foregoing sentence, the Indemnifying Party shall have no liability with respect to a Third-Party Claim subject to indemnification under this Article VIII: settled without its prior written consent (iwhich shall not be unreasonably conditioned, withheld or delayed).
(iii) both the The Indemnified Party and the Indemnifying Party shall reasonably cooperate in order to ensure the proper and adequate investigation and defense of all Third-Party Claims, including by providing reasonable access to each other’s relevant business records, documents and employees for purposes of investigation, document production, testimony and otherwise. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third-Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third-Party Claims. The Person controlling the defense of a Third-Party Claim shall in good faith allow the Indemnifying Party or Indemnified Party, as the case may be, shall keep to make comments to the other Person fully informed of the status of materials filed or submitted in such Third Party Claim and any related claims at all stages thereof where such Person is not represented by its own counseldefense, and (ii) the Parties agree (each at its own expense) to render to each other shall consider such assistance as they may reasonably require of each other and to cooperate comments in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claimfaith.
(div) In All reasonable and documented out-of-pocket legal fees, costs and expenses actually incurred or suffered by the event an Indemnified Indemnifying Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, and the Indemnified Party shall in connection with reasonable promptness send notice with respect to such claim to investigating and defending, and cooperating in the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days from the date of receipt of such notice that the Indemnifying Party disputes such claiminvestigation and defense of, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Third-Party hereunder. If the Indemnifying Party shall object in writing to any claim made in accordance with this Section 8.5(d), the Indemnified Party shall have fifteen Claim (15) calendar days to respond in a written statement to the objection of the Indemnifying Party. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the Parties shall attempt in good faith for thirty (30) calendar days to agree upon the rights of the respective Parties with respect to each of such claims. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all Parties. If the Parties do not so agree, the Parties will resolve the conflict in accordance with Section 11.3.
(e) Notwithstanding the foregoing, to the extent the provisions of this Section 8.5 conflict with the provisions of Article VII with respect to the matters covered therein, the provisions of Article VII shall govern.“
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Samples: Share and Asset Purchase Agreement (Goodyear Tire & Rubber Co /Oh/)
