Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 (an “Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party.
Appears in 5 contracts
Samples: License and Commercialization Agreement (Bellerophon Therapeutics, Inc.), License and Commercialization Agreement (Bellerophon Therapeutics LLC), License and Commercialization Agreement (Bellerophon Therapeutics LLC)
Claims for Indemnification. A Person entitled In connection with any indemnification provided pursuant to indemnification under this Section 10.1 (an “Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notificationAgreement, the Indemnifying Party may, upon indemnified party may make claims for indemnification by giving written notice thereof to the Indemnified Partyindemnifying party after it receives notice of a third-party claim or liability being asserted, assume control but the failure to do so shall not relieve the indemnifying party from any liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall summarize the bases for the claim for indemnification and any claim or liability being asserted by the third party. Within fifteen (15) days after receiving any such notice, the indemnifying party shall give written notice to the indemnified party stating whether it disputes the claim for indemnification and whether it will defend against any third-party claim or liability at its own cost and expense. If the indemnifying party fails to give notice that it disputes an indemnification claim within fifteen (15) days after the receipt of notice thereof, it shall be deemed to have accepted and agreed to indemnify the claim. The indemnifying party shall be entitled to direct the defense against a third-party claim or liability with counsel selected by it (subject to the consent of the indemnified party, which consent shall not be unreasonably withheld) as long as the indemnifying party is conducting a good faith and diligent defense. The indemnified party shall at all times have the right to fully participate in the defense of a third-party claim or liability at its own expense directly or through counsel; provided, however, that if the named parties to the action or proceeding include both the indemnifying party and the indemnified party, and the indemnified party is advised that representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the indemnified party may engage separate counsel at the expense of the indemnifying party. If no such notice of intent to dispute and defend a third-party claim or liability is given by the indemnifying party, or if such good faith and diligent defense is not being or ceases to be conducted by the indemnifying party, the indemnified party shall have the right, at the expense of the indemnifying party, to undertake the defense of such action, suit, proceeding claim or claim liability (with counsel reasonably satisfactory selected by the indemnified party), and to the Indemnified Partycompromise or settle it, exercising reasonable business judgment. If the Indemnifying Party does third-party claim or liability is one that by its nature cannot assume control of be defended solely by the indemnifying party, then the indemnified party shall make available such information and assistance as the indemnifying party may reasonably request and shall cooperate with the indemnifying party in such defense, at the Indemnified Party shall control such defenseexpense of the indemnifying party. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense indemnifying party shall keep have the other Party advised of the status of such action, suit, proceeding right to settle any third-party claim or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim liability without the prior written consent of the Indemnifying Partyindemnified party provided that such settlement (i) fully releases the indemnified party from any liability and provides no admission of wrongdoing, and (ii) does not subject the indemnified party to any additional obligation, whether financial or otherwise. In the event that any such settlement does not meet the requirements of (i) and (ii) above, then the indemnified party must consent to such settlement in writing, which consent the Indemnifying Party shall not be unreasonably withholdwithheld, condition conditioned or delaydelayed. The Indemnifying Party indemnified party shall not agree, without use reasonable efforts to mitigate any loss for which the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partyindemnifying party may be liable under its indemnification.
Appears in 4 contracts
Samples: Administration Agreement (Dfa Investment Dimensions Group Inc), Administration Agreement (Dimensional Investment Group Inc), Administration Agreement (Dimensional Emerging Markets Value Fund)
Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 (i) Promptly upon an “Indemnified Party”) 's obtaining knowledge of any facts causing it to believe that it has or will have a claim for indemnification against any Indemnifying Party or Parties hereunder, the Indemnified Party shall give prompt written notification notice of such claim to the Indemnifying Party from whom or Parties. Such written notice shall set forth the nature and (to the extent then known) the amount of Damages incurred by or threatened against the Indemnified Party. Notwithstanding the foregoing, the right of indemnification is sought (the “Indemnifying Party”) hereunder shall not be affected by any failure 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give or by its delay in giving such notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except unless, and then only to the extent that such that, the rights of the Indemnifying Party is actually damaged are prejudiced as a result of such failure or delay.
(ii) The Indemnified Party shall tender to give notice). Within [**] days after delivery of such notification, the Indemnifying Party maythe defense of any claim, upon written notice thereof suit, proceeding, action or assessment brought by any third party (hereinafter "Third Party Claim"). Failure by the Indemnifying Party to notify the Indemnified Party of its election to defend any such Third Party Claim within ten (10) days after the Indemnified Party, assume control 's notice to the Indemnifying Party of the same shall be deemed a waiver by the Indemnifying Party of its right so to defend. If the Indemnifying Party assumes such defense, the obligations of the Indemnifying Party hereunder as to such Third Party Claim shall include taking all steps reasonably necessary in the defense or settlement thereof and holding the Indemnified Party harmless from and against any and all Damages sustained or incurred by the Indemnified Party which result from, arise out of or are incidental to any settlement approved by the Indemnifying Party or any judgment in connection therewith. Legal counsel engaged by the Indemnifying Party to defend such action, suit, proceeding or claim with counsel shall be reasonably satisfactory acceptable to the Indemnified Party. Except with the written consent of the Indemnified Party, the Indemnifying Party, in the defense of any such Third Party Claim, shall not consent to the entry of any judgment against or adversely affecting the Indemnified Party (other than a judgment of dismissal on the merits and without costs) or enter into any settlement unless such settlement provides that the Indemnified Party is fully released by the third party as to such Third Party Claim.
(iii) If the Indemnifying Party does not assume control the defense of any such defenseThird Party Claim as provided herein, the Indemnified Party shall control may defend against such defense. The Third Party not controlling Claim in such defense manner as the Indemnified Party deems advisable or appropriate and may participate therein at its own expense. The settle such Third Party controlling such defense shall keep Claim or consent to the other Party advised entry of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party judgment with respect thereto. The Indemnified Party shall not agree to any settlement of thereto upon such actionterms as it deems advisable or appropriate, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent and in such event the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent promptly reimburse the Indemnified Party shall not unreasonably withholdfor the amount of such settlement or judgment and for any and all Damages sustained or incurred by the Indemnified Party which result from, condition arise out of or delay, are incidental to any the defense or settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Third Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClaim.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Roundys Inc), Asset Purchase Agreement (Roundys Inc), Asset Purchase Agreement (Roundys Inc)
Claims for Indemnification. A Person entitled (a) Whenever any party hereunder believes it has suffered or incurred or is likely to suffer or incur any Damages, or any action or proceeding is commenced or threatened or claim is made that could result in Damages, which is reasonably likely to give rise to a claim ("Claim") for indemnification under this Section 10.1 Agreement, the party seeking indemnification (an “"Indemnified Party”") shall give prompt written notification to shall, upon obtaining knowledge thereof, promptly notify in writing the Party from party against whom indemnification is sought (the “"Indemnifying Party”") of the commencement Claim and, when known, the facts constituting the basis for such Claim and the amount and nature of the Damages or an estimate thereof. The Indemnified Party's failure to timely notify Indemnifying Party of any action, suit Claim or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) potential Claim shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except any liability hereunder unless and only to the extent that such failure causes Indemnifying Party to lose the right to assert any substantive rights or defenses or to the extent that the Indemnifying Party is actually damaged as a result of such failure to prejudiced in its rights or obligations.
(b) The Indemnified Party shall give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof a reasonable opportunity to the Indemnified Party, participate in and to assume control of the defense of any such action, suit, proceeding or claim Claim at the Indemnifying Party's own expense and with counsel of the Indemnifying Party's own selection reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defenseprovided, the however, that Indemnified Party shall control such defense. The Party at all times also have the right but not controlling such the obligation, to fully participate in the defense may participate therein of the Claim and to employ its own counsel at its own expense. The Notwithstanding the foregoing, if the Indemnified Party controlling such defense shall keep reasonably determines that: (i) legal defenses may be available to the other Indemnified Party advised that are different from or in addition to those available to the Indemnifying Party, (ii) a conflict or potential conflict of interest exists between the status of such action, suit, proceeding or claim Indemnified Party and the defense thereof and shall consider recommendations made by Indemnifying Party (in which case the other Party with respect thereto. The Indemnified Indemnifying Party shall not agree have the right to direct the defense of such Claim on behalf of the Indemnified Party), or (iii) the Indemnifying Party has not in fact employed legal counsel to assume the defense of such Claim within a reasonable time after receiving notice of the Claim, then the reasonable fees, disbursements and other charges of counsel from one separate firm selected by the Indemnified Party (and reasonably acceptable to the Indemnified Party) shall be reimbursed by the Indemnified Party promptly as they are incurred.
(c) No party hereto shall compromise, settle or consent to the entry of any judgment with respect to any settlement of such action, suit, proceeding or claim Claim without the prior written consent of the Indemnifying Party, other interested party or parties (which consent the Indemnifying Party shall not be unreasonably withholdwithheld or delayed) unless such compromise, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and includes an unconditional release of all other interested parties hereto from any and all liabilities on any Claims that are the Indemnified Party from subject matter thereof.
(d) Each party hereto shall cooperate in every reasonable way with the party assuming responsibility for the defense and disposition of any such Claim, including making available to the defending party all liability with respect thereto or that imposes any liability or obligation on books, records, and other material reasonably required by the Indemnified Partydefending party for its use in defending the Claim.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Metretek Technologies Inc), Stock Purchase Agreement (Metretek Technologies Inc), Asset Purchase Agreement (Eagle Research Corp)
Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 (an “Indemnified Party”a) shall give prompt written notification to Promptly after the Party from whom indemnification is sought receipt by Buyer or SFX of notice of (the “Indemnifying Party”i) of any claim or (ii) the commencement of any action, suit proceeding or proceeding relating litigation (collectively, "Litigation") which may entitle Buyer or SFX to a Third indemnification, such party shall give the Representative written notice of such claim or the commencement of such Litigation. Promptly after the receipt by the Representative of notice of (i) any claim or (ii) the commencement of any Litigation which may entitle the Signing Partners to indemnification, the Representative shall give Buyer and SFX written notice of such claim or the commencement of such Litigation. The Indemnified Party claim for which indemnification may be sought or, if earlier, upon shall permit the assertion Indemnifying Party to assume the defense of any such claim by a Third Party or Litigation if (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(ci) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only gives written notice to the extent that Indemnified Party acknowledging the Indemnified Party's right to indemnification for such claim or Litigation pursuant to this Section 12, (ii) counsel to the Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party and (iii) the claim or Litigation seeks only money damages and does not seek injunctive or other equitable relief. The failure to give the Indemnifying Party timely notice under this clause shall not preclude the Indemnified Party from seeking indemnification from the Indemnifying Party unless such failure has materially prejudiced the Indemnifying Party's ability to defend such claim or Litigation.
(b) If the Indemnifying Party assumes the defense of any such claim or Litigation as set forth in subsection (a), the obligations of the Indemnifying Party as to such claim or Litigation shall be limited to taking all steps necessary in the defense or settlement of such claim or Litigation and to holding the Indemnified Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or Litigation; however, the Indemnified Party may participate, at its or his expense, in the defense of such claim or Litigation provided that the Indemnifying Party shall direct and control the defense of such claim or Litigation. The Indemnified Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or Litigation, consent to entry of any judgment, or enter into any settlement, except, in each case, with the written consent of the Indemnified Party, that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or Litigation.
(c) If the Indemnifying Party does not assume control the defense of any such defenseclaim or Litigation, the Indemnified Party may, but shall control have no obligation to, defend against such defense. The Party not controlling claim or Litigation in such defense manner as it may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delaydeem appropriate. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent promptly reimburse the Indemnified Party shall not unreasonably withholdfor the amount of all reasonable expenses, condition legal or delayotherwise, to any incurred by the Indemnified Party in connection with the defense against or settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release Litigation. If no settlement of the claim or Litigation is made, the Indemnifying Party shall promptly reimburse the Indemnified Party from all liability for the amount of any judgment rendered with respect thereto to such claim or that imposes any liability in such Litigation and of all reasonable expenses, legal or obligation on otherwise, incurred by the Indemnified PartyParty in the defense against such claim or Litigation.
Appears in 3 contracts
Samples: Asset Purchase Agreement (SFX Entertainment Inc), Asset Purchase and Sale Agreement (SFX Entertainment Inc), Asset Purchase and Sale Agreement (SFX Entertainment Inc)
Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 (an “Indemnified Party”a) shall give prompt written notification to Promptly after the Party from whom indemnification is sought receipt by Buyer or SFX of notice of (the “Indemnifying Party”i) of any claim or (ii) the commencement of any action, suit proceeding or proceeding relating litigation (collectively, "Litigation") which may entitle Buyer or SFX to a Third indemnification, such party shall give the Representative written notice of such claim or the commencement of such Litigation. Promptly after the receipt by the Representative of notice of (i) any claim or (ii) the commencement of any Litigation which may entitle the Signing Stockholders to indemnification, the Representative shall give Buyer and SFX written notice of such claim or the commencement of such Litigation. The Indemnified Party claim for which indemnification may be sought or, if earlier, upon shall permit the assertion Indemnifying Party to assume the defense of any such claim by a Third Party or Litigation if (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(ci) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only gives written notice to the extent that Indemnified Party acknowledging the Indemnified Party's right to indemnification for such claim or Litigation pursuant to this Section 12, (ii) counsel to the Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party and (iii) the claim or Litigation seeks only money damages and does not seek injunctive or other equitable relief. The failure to give the Indemnifying Party timely notice under this clause shall not preclude the Indemnified Party from seeking indemnification from the Indemnifying Party unless such failure has materially prejudiced the Indemnifying Party's ability to defend such claim or Litigation.
(b) If the Indemnifying Party assumes the defense of any such claim or Litigation as set forth in subsection (a), the obligations of the Indemnifying Party as to such claim or Litigation shall be limited to taking all steps necessary in the defense or settlement of such claim or Litigation and to holding the Indemnified Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claim or Litigation; however, the Indemnified Party may participate, at its or his expense, in the defense of such claim or Litigation provided that the Indemnifying Party shall direct and control the defense of such claim or Litigation. The Indemnified Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or Litigation, consent to entry of any judgment, or enter into any settlement, except, in each case, with the written consent of the Indemnified Party, that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or Litigation.
(c) If the Indemnifying Party does not assume control the defense of any such defenseclaim or Litigation, the Indemnified Party may, but shall control have no obligation to, defend against such defense. The Party not controlling claim or Litigation in such defense manner as it may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delaydeem appropriate. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent promptly reimburse the Indemnified Party shall not unreasonably withholdfor the amount of all reasonable expenses, condition legal or delayotherwise, to any incurred by the Indemnified Party in connection with the defense against or settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release Litigation. If no settlement of the claim or Litigation is made, the Indemnifying Party shall promptly reimburse the Indemnified Party from all liability for the amount of any judgment rendered with respect thereto to such claim or that imposes any liability in such Litigation and of all reasonable expenses, legal or obligation on otherwise, incurred by the Indemnified PartyParty in the defense against such claim or Litigation.
Appears in 3 contracts
Samples: Asset Purchase Agreement (SFX Entertainment Inc), Asset Purchase Agreement (SFX Entertainment Inc), Asset Purchase Agreement (SFX Entertainment Inc)
Claims for Indemnification. (a) A Person entitled to indemnification under this Section 10.1 Article VI (an “Indemnified Party”) shall give prompt written notification to the Party person from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) Article VI shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged prejudiced as a result of such failure to give notice). .
(b) Within [***] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. .
(c) The Party not controlling such defense may participate therein at its own expense. ; provided, however, that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided further, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel in any one jurisdiction for all Indemnified Parties.
(d) 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 in good faith recommendations made by the other Party with respect thereto. PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***] DENOTES OMISSIONS.
(e) The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party, without the prior written consent of the Indemnified Party.
Appears in 3 contracts
Samples: Api Supply Agreement, Api Supply Agreement (Clarus Therapeutics Inc), Api Supply Agreement (Clarus Therapeutics Inc)
Claims for Indemnification. A Person Party entitled to indemnification under this Section 10.1 Article 7 (an “Indemnified Party”) shall give prompt written notification notification, with sufficient detail to allow the receiving Party to make an assessment thereof, to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) 7.3 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] * days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defensedefense and, without limiting the Indemnifying Party’s indemnification obligations, the Indemnifying Party shall reimburse the Indemnified Party for all reasonable and documented costs, including attorney fees, incurred by the Indemnified Party in defending itself within *** days after receipt of any invoice therefore from the Indemnified Party. The Party not controlling such defense may monitor and participate therein in the controlling Party’s defense at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of separate counsel to the Indemnified Party in connection therewith. 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 Party not controlling such defense shall cooperate with the controlling Party and shall make available to the controlling Party all witnesses, information and materials in such Party’s possession or under such Party’s control relating thereto as are reasonably required by the controlling Party, subject to appropriate provisions for the protection of confidentiality. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withholdwithheld, condition delayed or delayconditioned. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK ***, HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION consent to any judgment in respect thereof that is not solely for monetary damages, that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or thereto, that imposes any liability or obligation on the Indemnified Party, or that acknowledges fault by the Indemnified Party without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld.
Appears in 3 contracts
Samples: License Agreement (Kadmon Holdings, LLC), Supply Agreement (Kadmon Holdings, LLC), Supply Agreement (Kadmon Holdings, LLC)
Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 (an “Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [***] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party.
Appears in 3 contracts
Samples: License and Commercialization Agreement (BioLineRx Ltd.), License and Commercialization Agreement (BioLineRx Ltd.), License and Commercialization Agreement (BioLineRx Ltd.)
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under this Section 10.1 Article V, Seller or Buyer, as the case may be, seeking indemnification (an the “Indemnified Party”) ), shall give prompt written notification to notify the Party party from whom indemnification is sought in writing (the “Indemnifying Party”) of the commencement claim within fourteen (14) days of any action, suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion receipt of written notice of any such claim and, when known, the facts constituting the basis for such claim (an “Indemnification Claim Notice”). In the event of any such claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a Third Party (it being understood third party, the Indemnification Claim Notice shall specify, if known, the amount or an estimate of the amount of the liability arising therefrom and agreedshall append all legal papers, however, that notices and other documents received in connection therewith. The delivery of the failure Indemnification Claim Notice by an the Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party within such fourteen (14) day period shall not be a condition precedent to any liability of its indemnification obligation the Indemnifying Party under this Agreement except and only to the extent that Agreement, unless such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 has otherwise been prejudiced by the other Party with respect theretolack of or delay in delivering such Indemnification Claim Notice. The Indemnified Party shall not agree settle or compromise any claim by a third party for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition withheld or delay. The Indemnifying Party shall not agree, without delayed if the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition settlement or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and includes an unconditional release of to the Indemnified Party from all liability with respect thereto or to such claim, provided, however, that imposes any liability or obligation on if suit shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit after notification thereof as provided in Section 5.6 hereof, the Indemnified Party shall have the right to settle or compromise such claim upon giving reasonable and timely notice to the Indemnifying Party, as provided in Section 5.6.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Checkpoint Systems Inc), Asset Purchase Agreement (Checkpoint Systems Inc)
Claims for Indemnification. 10.2.1 A Person person entitled to indemnification under this Section 10.1 (an “Indemnified Party”) shall give prompt written notification to the Party person from whom indemnification is sought (the “Indemnifying Party”) of the commencement of any action, suit or proceeding relating to a Third Party third party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party third party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party third party claim as provided in this Section 10.1(c) 10.2.1 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to unless the extent Indemnified Party can demonstrate that such Indemnifying Party is actually damaged as a result of such failure to give noticenotice has not resulted in any prejudice to the Indemnifying Party). .
10.2.2 Within [***] days after delivery receipt of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Partyof its choice. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. .
10.2.3 The Party not controlling such defense may participate therein at its own expense. ; provided, that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be [***].
10.2.4 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 reasonable recommendations made by the other Party with respect thereto. .
10.2.5 The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party.
Appears in 2 contracts
Samples: Collaboration Research and Technology Licensing Agreement (Pieris Pharmaceuticals, Inc.), Collaboration Research and Technology Licensing Agreement (Marika Inc.)
Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 (an “a) Promptly upon the Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) of the commencement obtaining knowledge of any action, suit or proceeding relating facts causing it to believe that it has a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve against the Indemnifying Party hereunder, the Indemnified Party shall give written notice of such claim to the Indemnifying Party. Such written notice shall set forth in reasonable detail the nature and (to the extent then known) the amount of the claim. Notwithstanding the foregoing, the Indemnified Party’s right of indemnification hereunder shall not be affected by its indemnification obligation under this Agreement except failure to give or by its delay in giving such notice unless, and then only to the extent that such that, the rights of the Indemnifying Party is actually damaged are materially prejudiced as a result of such failure to give notice). Within [**] days after delivery of such notification, the or delay.
(b) Any Indemnifying Party may, upon written notice thereof will have the right to the Indemnified Party, assume control of the defense of such actionany claim, suit, proceeding proceeding, action or claim assessment brought by any third party (hereinafter “Third Party Claim”) with counsel of his or its choice reasonably satisfactory to the Indemnified Party. If Party at any time within 15 days after the Indemnified Party has given notice of the Third Party Claim; provided, however, that the Indemnifying Party does not assume control must conduct the defense of such defense, the Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein retain separate co-counsel at its own expense. The Party controlling such sole cost and expense and participate in the defense shall keep the other Party advised of the status of such action, suit, proceeding or claim Third Party Claim.
(c) So long as the Indemnifying Party has assumed and is conducting the defense thereof and shall consider recommendations made by of the other Third Party Claim in accordance with Section 6.5(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect thereto. The to the Third Party Claim without the prior written consent of the Indemnified Party shall (not agree to be withheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement of such action, suit, proceeding or claim with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, which consent Party (not to be withheld unreasonably).
(d) In the event none of the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without Parties assumes and conducts the prior written consent defense of the Indemnified PartyThird Party Claim in accordance with Section 6.5(b)above, which consent however, (i) the Indemnified Party shall not unreasonably withholdmay defend against, condition and consent to the entry of any judgment or delay, to enter into any settlement of such actionwith respect to, suit, proceeding the Third Party Claim in any manner he or claim or consent to any judgment in respect thereof that does not include a complete it reasonably may deem appropriate (and unconditional release of the Indemnified Party from all liability with respect thereto need not consult with, or that imposes obtain any liability or obligation on consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified PartyParty may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Article VI.
(e) The parties shall cooperate with each other in connection with any Third Party Claim and provide each other with access to relevant personnel, books, records and other information in its possession.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Actuant Corp), Stock Purchase Agreement (Actuant Corp)
Claims for Indemnification. 6.6.1 A Person entitled to indemnification under this Section 10.1 thus Agreement (an “"Indemnified Party”") shall give prompt written notification to the Party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any action, suit or proceeding relating to a Third Party third party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party third party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party third party claim as provided in this Section 10.1(c) 6.6 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged prejudiced as a result of such failure to give notice). .
6.6.2 Within [*****] calendar days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. .
6.6.3 The Party not controlling such defense may participate therein at its own expense. ; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided further that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel in any one jurisdiction for all Indemnified Parties.
6.6.4 The Party party controlling such defense shall keep the other Party 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. .
6.6.5 The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition withheld or delaydelayed. The Indemnifying Party shall not agreenot, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party. For the avoidance of doubt, the Indemnifying Party is not obliged to act contrary to a judgment or to an official directive, even if not final and conclusive.
Appears in 2 contracts
Samples: Manufacturing Services Agreement (Dyax Corp), Manufacturing Services Agreement (Dyax Corp)
Claims for Indemnification. A Person entitled (a) Whenever any party hereunder believes it has suffered or incurred or is likely to suffer or incur any Damages, or any action or proceeding is commenced or threatened or claim is made that could result in Damages, which is reasonably likely to give rise to a claim ("Claim") for indemnification under this Section 10.1 Agreement, the party seeking indemnification (an “"Indemnified Party”") shall give prompt written notification to shall, upon obtaining knowledge thereof, promptly notify in writing the Party from party against whom indemnification is sought (the “"Indemnifying Party”") of the commencement Claim and, when known, the facts constituting the basis for such Claim and the amount and nature of the Damages or an estimate thereof. The Indemnified Party's failure to timely notify Indemnifying Party of any action, suit Claim or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) potential Claim shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except any liability hereunder unless and only to the extent that such failure causes Indemnifying Party to lose the right to assert any substantive rights or defenses or to the extent that the Indemnifying Party is actually damaged as a result of such failure to prejudiced in its rights or obligations.
(b) The Indemnified Party shall give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof a reasonable opportunity to the Indemnified Party, participate in and to assume control of the defense of any such action, suit, proceeding or claim Claim at the Indemnifying Party's own expense and with counsel of the Indemnifying Party's own selection reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defenseprovided, the however, that Indemnified Party shall control such defense. The Party at all times also have the right but not controlling such the obligation, to fully participate in the defense may participate therein of the Claim and to employ its own counsel at its own expense. The Notwithstanding the foregoing, if the Indemnified Party controlling such defense shall keep reasonably determines that: (i) legal defenses may be available to the other Indemnified Party advised that are different from or in addition to those available to the Indemnifying Party, (ii) a conflict or potential conflict of interest exists between the status of such action, suit, proceeding or claim Indemnified Party and the defense thereof and shall consider recommendations made by Indemnifying Party (in which case the other Party with respect thereto. The Indemnified Indemnifying Party shall not agree have the right to direct the defense of such Claim on behalf of the Indemnified Party), or (iii) the Indemnifying Party has not in fact employed legal counsel to assume the defense of such Claim within a reasonable time after receiving notice of the Claim, then the reasonable fees, disbursements and other charges of counsel from one separate firm selected by the Indemnified Party (and reasonably acceptable to the Indemnifying Party) shall be reimbursed by the Indemnifying Party promptly as they are incurred.
(c) No party hereto shall compromise, settle or consent to the entry of any judgment with respect to any settlement of such action, suit, proceeding or claim Claim without the prior written consent of the Indemnifying Party, other interested party or parties (which consent the Indemnifying Party shall not be unreasonably withholdwithheld or delayed) unless such compromise, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and includes an unconditional release of all other interested parties hereto from any and all liabilities on any Claims that are the Indemnified Party from subject matter thereof.
(d) Each party hereto shall cooperate in every reasonable way with the party assuming responsibility for the defense and disposition of any such Claim, including making available to the defending party all liability with respect thereto or that imposes any liability or obligation on books, records, and other material reasonably required by the Indemnified Partydefending party for its use in defending the Claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (It Partners Inc), Asset Purchase Agreement (It Partners Inc)
Claims for Indemnification. A Person entitled In the event of the occurrence of any event which any Party asserts is an indemnifiable event pursuant to this Article 8, the Party claiming indemnification under this Section 10.1 (an “the "Indemnified Party”") shall give provide prompt written notification notice to the Party from whom required to provide indemnification is sought (the “"Indemnifying Party”) of "), specifying in detail the commencement of any action, suit or proceeding relating facts and circumstances with respect to a Third Party such claim and the basis for which indemnification may be sought or, if earlier, upon is available hereunder. If such event involves the assertion claim of any third party, the Indemnifying Party shall have the right to control the defense of settlement of such claim by a Third Party (it being understood and agreedclaim; provided, however, that (a) the failure by an Indemnified Party shall be entitled to give participate in the defense of such claim at its own expense, (b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party (which approval shall not be unreasonably withheld or delayed) before entering into any settlement of such claim if, pursuant to or as a result of such settlement, injunctive or other non-monetary relief would be imposed against the Indemnified Party, (c) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, and shall assume all expense with respect to the defense or settlement of any claim to the extent such claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party; provided that the Indemnified Party shall provide written notice to the Indemnifying Party of its election to assume control over the defense of such claim pursuant to this Section 8.4 if the Indemnifying Party is entitled but fails to assume control over the defense of a Third Party claim as provided in this Section 10.1(c) 8.4. If the Indemnified Party assumes control of the defense of a claim as permitted hereunder, the Indemnified Party shall not relieve obtain the prior written approval of the Indemnifying Party (which approval shall not be unreasonably withheld or delayed) before entering into any settlement of its indemnification obligation under this Agreement except and only such claim if, pursuant to the extent that such Indemnifying Party is actually damaged or as a result of such failure settlement, injunctive or other non-monetary relief would be imposed against the Indemnifying Party. In the event that the Indemnifying Party shall be obligated to give notice). Within [**] days after delivery of such notificationindemnify the Indemnified Party pursuant to this Article 8, the Indemnifying Party mayshall, upon written notice thereof to the Indemnified Party, assume control of the defense payment of such actionindemnity in full, suit, proceeding or claim with counsel reasonably satisfactory be subrogated to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release all rights of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on to the Indemnified Partyclaim to which such indemnification relates.
Appears in 2 contracts
Samples: Stock for Stock Exchange Agreement (Cognigen Networks Inc), Stock for Stock Exchange Agreement (Cognigen Networks Inc)
Claims for Indemnification. A Person If any Indemnitee shall believe that such Indemnitee is entitled to indemnification under pursuant to this Section 10.1 (an “Indemnified Party”) Article IX in respect of any Damages, such Indemnitee shall give the appropriate Indemnifying Party prompt written notification notice thereof. Any such notice shall set forth in reasonable detail and to the Party from whom indemnification is sought (extent then known the “Indemnifying Party”) of the commencement of any action, suit or proceeding relating to a Third Party basis for such claim for which indemnification may be sought or, if earlier, upon the assertion indemnification. The failure of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party Indemnitee to give notice of a Third Party any claim as provided in this for indemnification promptly, but within the periods specified by Section 10.1(c) 9.02, shall not relieve the Indemnifying Party of its adversely affect such Indemnitee's right to indemnification obligation under this Agreement except hereunder unless and only to the extent that such failure adversely affects the Indemnifying Party is actually damaged as a result of Party's ability to reasonably defend such failure to give notice)claim. Within [**] days after delivery of Each such notification, claim for indemnity shall expressly state that the Indemnifying Party may, upon shall have only the thirty (30) Business Day period referred to in the next sentence to dispute or deny such claim. The Indemnifying Party shall have thirty (30) Business Days following its receipt of such notice either to (a) acquiesce in such claim by giving such Indemnitee written notice thereof of such acquiescence or (b) object to the Indemnified Party, assume control claim by giving such Indemnitee written notice of the defense objection. If (i) Indemnitee's notice clearly states that a failure by the Indemnifying Party to object to the claim within thirty (30) Business Days following its receipt shall entitle the Indemnitee to be indemnified, and (ii) the Indemnifying Party does not respond within such thirty (30) Business Day period, such Indemnitee shall be entitled to be indemnified for all Damages reasonably and proximately incurred by such Indemnitee in respect of such action, suit, proceeding or claim with counsel reasonably satisfactory subject to the Indemnified Partylimitations set forth in Section 9.02. If (i) the Indemnitee's notice does not clearly state that a failure by the Indemnifying Party to object to the claim within thirty (30) Business Days following its receipt shall entitle the Indemnitee to be indemnified, and (ii) the Indemnifying Party does not respond within such thirty (30) Business Day period, Indemnitee claim shall be deemed rejected. If the Indemnifying Party does not assume control of objects to such defenseclaim in a timely manner, the Indemnified Party shall control and such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim Indemnitee and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, are unable to any settlement resolve their dispute within ten (10) Business Days following delivery of such actionobjection (or such additional period of time as may be mutually agreed to by such Persons), suit, proceeding or the claim or consent shall be submitted immediately to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partydispute resolution pursuant to Section 11.11.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Digital Equipment Corp), Asset Purchase Agreement (Digital Equipment Corp)
Claims for Indemnification. A (a) In the event that any Indemnified Party has a claim against any Person entitled to indemnification under this Section 10.1 (an “Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is sought (the an “Indemnifying Party”) of the commencement of any actionpursuant to Section 9.1 hereof, suit or proceeding relating which does not involve a claim being sought to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim collected by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defensethird party, the Indemnified Party shall control provide written notice of such defenseclaim (a “Claim Notice”) to the Stockholders’ Representative (or the particular Indemnifying Party in the event that recovery is being sought directly from such Indemnifying Party). The Party Claim Notice shall set forth the amount, if known, or, if not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised known, an estimate of the status maximum amount of claimed Damages (which estimate shall not be conclusive of the final amount of such action, suit, proceeding Damages) and a reasonable description of the basis for such claim. If the Stockholders’ Representative (or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent if applicable) does not notify the Indemnified Party within thirty (30) days from receipt of the Claim Notice that Stockholders’ Representative (or the Indemnifying Party, if applicable) disputes such claim, or its (or the Indemnifying Parties’) liability to the Indemnified Party for such claim, the amount of such claim as set forth in the Claim Notice shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent be conclusively deemed a liability of the Indemnified Indemnifying Parties hereunder. In case an objection is made in writing by the Stockholders’ Representative (or the Indemnifying Party, which consent if applicable) in accordance with this Section 9.2(a) (an “Objection Notice”), the Indemnified Party shall not unreasonably withholdhave thirty (30) days to respond in a written statement to such Objection Notice.
(b) In case the Stockholders’ Representative (or the Indemnifying Party, condition if applicable) delivers an Objection Notice in accordance with Section 9.2(a) hereof, the Stockholders’ Representative (or delaythe Indemnifying Party, if applicable) and Parent shall attempt in good faith to any settlement agree upon the rights of the respective Parties with respect to each of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does claims. If the dispute has not include a complete and unconditional release of been resolved within thirty (30) days after the Indemnified Party from all liability is given an Objection Notice, either the Stockholders’ Representative (or the Indemnifying Party, if applicable) or the Parent may initiate litigation in accordance with respect thereto this Agreement. In the event the Parent does not receive a timely Objection Notice, the claim(s) set forth in the Claim Notice shall be conclusively deemed to be approved by the Stockholders’ Representative (or that imposes the Indemnifying Party, if applicable) and the Indemnifying Party.
(c) Until the final resolution of any liability or obligation on Claim Notice in accordance with this Agreement and the Escrow Agreement, an Indemnified Party, may from time to time, amend such Claim Notice to reflect additional Damages thereunder.
Appears in 2 contracts
Samples: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Claims for Indemnification. 14.4.1 A Person entitled to indemnification under this Section 10.1 Article 14 (an “Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) of the commencement of any action, suit or proceeding relating to a Third Party claim Action for which indemnification may be sought or, if earlier, upon the assertion of any such claim Action by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim Action as provided in this Section 10.1(c) 14.4.1 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged prejudiced as a result of such failure to give notice). .
14.4.2 Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with Action using counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. .
14.4.3 The Party not controlling such defense may participate therein at its own expense. ; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided further, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel in any one jurisdiction for all Indemnified Parties.
14.4.4 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. .
14.4.5 The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party.
Appears in 2 contracts
Samples: Collaboration and License Agreement (Verve Therapeutics, Inc.), Collaboration and License Agreement (Verve Therapeutics, Inc.)
Claims for Indemnification. A Person (a) If any Indemnified Party becomes aware of any Losses for which such Indemnified Party will seek indemnification, such Indemnified Party shall deliver to the Shareholders’ Agent, on or before the Termination Date, a certificate signed by any authorized signatory of the Indemnified Party (a “Claim Certificate”) stating that with respect to the indemnification obligations set forth in Section 7.2, Losses exist and specifying in reasonable detail the individual items of such Losses included in the amount so stated, the date each such item was paid, properly accrued or arose, the nature of the inaccuracy in, or breach of warranty, representation or covenant to which such item is related and an estimate of attorney’s fees and expenses necessary to conclude the matter. If the Shareholders’ Agent does not object to such claims within thirty (30) calendar days after the delivery of the Claim Certificate to the Shareholders’ Agent, then Parent shall be entitled to indemnification under this Section 10.1 be reimbursed for such Losses as set forth herein.
(an “Indemnified Party”b) shall give prompt written notification The Shareholders’ Agent may object to the claim on the Claim Certificate by delivery to the Indemnified Party from whom indemnification is sought of such objection in writing within thirty (30) calendar days after the “Indemnifying Party”) delivery of the commencement of Claim Certificate to the Shareholders’ Agent. In case the Shareholders’ Agent shall so object in writing to any action, suit claim or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure claims by an Indemnified Party to give notice of a Third Party claim as provided made in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defenseany Claim Certificate, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep have thirty (30) days to respond in a written statement to the other Party advised objection of the status of Shareholders’ Agent. If after such actionsecond thirty (30) day period there remains a dispute as to any claims set forth in a Claim Certificate, suit, proceeding or claim the Shareholders’ Agent and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The relevant Indemnified Party shall not attempt in good faith for sixty (60) days to agree upon the rights of the respective parties with respect to any settlement each of such action, suit, proceeding or claim without claims. If the prior written consent of the Indemnifying Party, which consent the Indemnifying Shareholders’ Agent and Indemnified Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not should so agree, without the prior written consent of the Indemnified Party, which consent a memorandum setting forth such agreement shall be prepared and signed by both and the Indemnified Party shall not unreasonably withholdbe entitled to reimbursement for such Losses as set forth herein.
(c) If no agreement can be reached after good faith negotiation between the parties pursuant to (b) above, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability or the Shareholders’ Agent may, by written notice to the other, demand binding arbitration of the matter. Any conflicts arbitrated pursuant to this Section 7.3 shall be arbitrated in accordance with respect thereto or that imposes any liability or obligation on the Indemnified Partyprovisions of Section 9.2 of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Lavin Philip T), Merger Agreement (It&e International Group)
Claims for Indemnification. A Person entitled (a) Any claim for indemnification pursuant to indemnification under this Section 10.1 (an “Indemnified Party”) Indemnity Agreement which is based upon a final judgment, decree or award of a court of competent jurisdiction or upon the order of any governmental body, administrative agency or regulatory authority and such claim requires the payment of money by any Indemnitee, such judgment, decree, award or order shall give prompt written notification be conclusive as to the Party from whom amount of such claim, provided a certified copy of such judgment, decree, award or order accompanies the notice relating to such claim and provided further that such Indemnitee shall have complied with the requirements of SECTION 9(b) below. Any claim for indemnification is sought shall be conclusive in all respects thirty (30) days after receipt by Indemnitor of notice thereof, unless within such period Indemnitor shall have sent to such Indemnitee, and such Indemnitee shall have received, notice questioning the “Indemnifying Party”) propriety of the commencement claim, in which case such claim, unless settled by agreement of any actionthe parties, suit or proceeding relating shall be promptly referred to arbitration as provided in SECTION 10(a) below. In the event that an Indemnitee makes a Third Party claim for indemnification, and Indemnitor contests such claim but the claim is not settled or referred to arbitration within sixty (60) days after receipt by Indemnitor of notice of the claim from such Indemnitee, such claim shall be regarded as conclusive in all respects.
(b) In the event that any legal proceeding shall be instituted, or any claim or demand shall be asserted against any Indemnitee by any third party in respect of which indemnification indemnity may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only pursuant to the extent that provisions of this Indemnity Agreement, such Indemnifying Party is actually damaged as a result Indemnitee, with reasonable promptness after obtaining knowledge of such failure to proceeding, claim, or demand shall give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified PartyIndemnitor, assume control who shall then have the right, at its option and expense, to be represented by counsel of the defense of its choice in connection with such actionmatter, suit, proceeding or claim with which counsel shall be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of Indemnitee, and to defend against, negotiate, settle or otherwise deal with any such defenseproceeding, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such actionclaim or demand; PROVIDED, suitHOWEVER, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim that without the prior written consent of the Indemnifying PartyIndemnitee, which consent the Indemnifying Party shall not be unreasonably withholdwithheld, condition or delay. The Indemnifying Party the Indemnitor shall not agree, without consent to the prior written consent entry of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition any judgment in or delay, agree to any settlement of any such actionmatters; FURTHER PROVIDED, suitthat the Indemnitee may retain counsel, at its own expense, to represent it and participate in connection with any such proceeding or claim or consent demand. Failure by the Indemnitor to notify the Indemnitee of the Indemnitor's election to defend any judgment proceeding, claim or demand with respect to which indemnity is sought, within thirty (30) days after notice thereof shall have been given by the Indemnitee, shall be deemed a waiver by the Indemnitor of its right to defend against such matter. If the Indemnitor assumes defense of any such proceeding, claim or demand, it shall take or cause to be taken all steps necessary in connection with such defense, and the Indemnitee shall in all events be entitled to indemnity with respect thereof to such matter, as provided in this Indemnity Agreement. In the event that the Indemnitor does not include a complete and unconditional release of the Indemnified Party from all liability elect to defend any proceeding, claim or demand with respect thereto to which indemnity is sought, the Indemnitee may defend against, settle or otherwise deal with any such proceeding, claim or demand in such matter as it may in its good faith discretion deem appropriate and the Indemnitor shall be liable for indemnification with respect to such matter, including without limitation the reasonable costs of such defense, as provided in this Indemnity Agreement. In the event of any proceeding, claim or demand by a third party with respect to which a claim for indemnification is made hereunder, the parties hereto agree that imposes any liability they will cooperate fully with each other in connection with the defense or obligation on the Indemnified Partysettlement of such matter.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Limco-Piedmont Inc), Membership Interest Purchase Agreement (Tat Technologies LTD)
Claims for Indemnification. A Person entitled Promptly after receipt by any indemnified person of a notice of a claim or the beginning of any action in respect of which indemnity is to indemnification under be sought against an indemnifying person pursuant to this Section 10.1 (an “Indemnified Party”) 8, such indemnified person shall give prompt written notification to notify the Party from whom indemnification is sought (the “Indemnifying Party”) indemnifying person in writing of such claim or of the commencement of any such action, suit or proceeding relating but the omission to a Third Party claim for so notify the indemnifying person will not relieve it from any liability which indemnification it may be sought or, if earlier, upon the assertion of have to any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in indemnified person under this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement 8 (except and only to the extent that such Indemnifying Party is actually damaged as a result of omission materially and adversely affects the indemnifying person’s ability to defend such failure action) or from any liability otherwise than under this Section 8. Subject to give notice). Within [**] days after delivery of the provisions hereinafter stated, in case any such notificationaction shall be brought against an indemnified person, the Indemnifying Party mayindemnifying person shall be entitled to participate therein, upon and, to the extent that it shall elect by written notice thereof delivered to the Indemnified Partyindemnified person promptly after receiving the aforesaid notice from such indemnified person, shall be entitled to assume control of the defense of such actionthereof, suit, proceeding or claim with counsel reasonably satisfactory to such indemnified person. After notice from the Indemnified Party. If indemnifying person to such indemnified person of its election to assume the Indemnifying Party does defense thereof, such indemnifying person shall not assume control be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such defenseindemnifying person; provided, however, that no indemnifying person shall be responsible for the Indemnified Party fees and expenses of more than one separate counsel (together with appropriate local counsel) for all indemnified parties. In no event shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense any indemnifying person be liable in respect of any amounts paid in settlement of any action unless the indemnifying person shall keep have approved the other Party advised of the status terms of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party settlement; provided that such consent shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agreeNo indemnifying person shall, without the prior written consent of the Indemnified Partyindemnified person, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to effect any settlement of such action, suit, any pending or threatened proceeding or claim or consent to any judgment in respect thereof that does not include of which any indemnified person is or could have been a complete party and indemnification could have been sought hereunder by such indemnified person, unless such settlement includes an unconditional release of the Indemnified Party such indemnified person from all liability with on claims that are the subject matter of such proceeding.
(a) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified person under Section 8.1 or 8.2 above in respect thereto of any losses, claims, damages or that imposes any liability liabilities (or obligation actions or proceedings in respect thereof) referred to therein, then each indemnifying person shall contribute to the amount paid or payable by such indemnified person as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Issuer on the Indemnified Partyone hand and the Purchaser(s) on the other in connection with the statements or omissions or other matters which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, in the case of an untrue statement, whether the untrue statement relates to information supplied by the Issuer on the one hand or the Purchaser(s) on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement. The Issuer and the Purchasers agree that it would not be just and equitable if contribution pursuant to this subsection 8.3(a) were determined by pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to above in this subsection 8.3(a). The amount paid or payable by an indemnified person as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection 8.3(a) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection 8.3(a), a Purchaser shall not be required to contribute any amount in excess of the amount by which the net amount received by such Purchaser from the sale of the Purchased Shares to which such loss relates exceeds the amount of any damages which such Purchaser has otherwise been required to pay by reason of such untrue statement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Each Purchaser’s obligations in this subsection to contribute shall be in proportion to its sale of Purchased Shares to which such loss relates and shall not be joint with any other Purchaser.
(b) The parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the negotiations regarding the provisions hereof including, without limitation, the provisions of this Section 8, and are fully informed regarding said provisions. The parties are advised that federal or state public policy as interpreted by the courts in certain jurisdictions may be contrary to certain of the provisions of this Section 8, and the parties hereto hereby expressly waive and relinquish any right or ability to assert such public policy as a defense to a claim under this Section 8 and further agree not to attempt to assert any such defense.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Contango ORE, Inc.), Stock Purchase Agreement (Contango ORE, Inc.)
Claims for Indemnification. A Person It is the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as favorable as may be permitted under applicable law, including without limitation the Florida Statues and public policy of the State of Florida. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any Proceeding or any claim, issue or matter therein with regard to which Indemnity will or could be sought under this under this Agreement, the Company's Charter or any other obligation whatsoever of the Company to indemnify the Indemnittee or for which insurance coverage could be available:
(a) Whenever any Proceedings shall arise, to obtain indemnification under this Agreement, the Indemnitee shall notify the Company promptly in writing and in any event within thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding or any claim, issue or matter therein; provided, however, that with respect to any Proceeding (or any claim, issue or matter therein), that was initiated prior to the Effective Date, the Indemnitee shall notify the Company promptly in writing within the later of (X) ten (10) days after the effectiveness of this Agreement, and (Y) thirty (30) days after the Indemnitee has actual knowledge of the facts constituting the basis for such Proceeding (or any claim, issue or matter therein) (such notice, the "Indemnification Notice"). The Indemnification Notice shall specify all facts known to the Indemnitee giving rise to such indemnification right and the amount or an estimate of the amount of liability (including estimated expenses) arising therefrom.
(b) Any indemnification under this Agreement shall bemadenolater than thirty (30) days after receipt by the Company of the Indemnification Notice, unless a determination is made within such thirty (30) day period by (X) the Board by a majority vote of a quorum consisting of directors who were not parties to the Proceeding described in the Indemnification Notice, or (Y) Independent Counsel (as hereinafter defined), agreed to by the Company, in a written opinion (which counsel shall be appointed if such a quorum is not obtainable), that the Indemnitee has not met the relevant standards for indemnification under this Agreement. Independent Counsel may be appointed by a majority vote of a quorum consisting of directors, notwithstanding that any such directors are parties to the Proceeding described in the Indemnification Notice.
(c) If and when a determination with respect to the Indemnitee's lack of entitlement to indemnification hereunder is made pursuant to Section 5(b), the person or persons or entity making such determination shall first presume that the Indemnitee is entitled to indemnification under this Section 10.1 Agreement and shall thereafter have the burden of persuasion by clear and convincing evidence that the Indemnitee has not met the applicable standard of conduct to be entitled to indemnification under this Agreement, the Company's articles of incorporation, the bylaws and other obligations of the Company to indemnify the Indmnitee pursuant to which the Indemnitee is claiming the right to indemnification. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (an “Indemnified Party”including by its directors or Independent Counsel) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) of have made a determination prior to the commencement of any actionaction pursuant to this Agreement that indemnification is proper under the circumstances because the Indemnitee has met the applicable standard of conduct, suit nor an actual determination by the Company (including by its directors or proceeding relating Independent Counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a Third Party claim presumption that the Indemnitee has not met the applicable standard of conduct.
(d) To the maximum extent permitted by applicable law, the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's action was based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to the Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(d) are satisfied, it shall in any event be presumed that the Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) The Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to the Indemnitee's lack of entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee's lack of entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by the Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to the Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless therefrom.
(f) The Company acknowledges that a settlement or other disposition short of final judgment may be sought orsuccessful if it permits a party to avoid expense, if earlierdelay, upon distraction, disruption and uncertainty. In the assertion event that any Proceeding or any claim, issue or matter therein to which the Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including, without limitation, settlement of any such claim by a Third Party (Proceeding or claim, issue or matter therein with or without payment of money or other consideration) it being understood and agreedshall be presumed that the Indemnitee has been successful on the merits or otherwise in such Proceeding or claim, issue or matter therein; provided, however, that the failure Indemnitee shall not be entitled to indemnification under this Agreement with respect to any settlement unless the Company shall have consented to such settlement, which consent shall not be unreasonably withheld. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by an Indemnified Party to give notice clear and convincing evidence.
(g) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a Third Party claim plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Section 10.1(cAgreement) shall of itself adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not relieve the Indemnifying Party of its indemnification obligation under this Agreement except act in good faith and only in a manner which he reasonably believed to be in or not opposed to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control best interests of the defense of such actionCompany or, suitwith respect to any criminal Proceeding, proceeding or claim with counsel reasonably satisfactory that the Indemnitee had reasonable cause to believe that his conduct was unlawful.
(h) The Company will be entitled to participate in the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein Proceeding at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party.
Appears in 2 contracts
Samples: Indemnification Agreement (SkyPeople Fruit Juice, Inc), Indemnification Agreement (SkyPeople Fruit Juice, Inc)
Claims for Indemnification. A Person entitled In the event of the occurrence of any event which any party asserts is an indemnifiable event pursuant to this Article 7, the party claiming indemnification under this Section 10.1 (an “the "Indemnified Party”") shall give provide prompt written notification notice to the Party from whom party required to provide indemnification is sought (the “"Indemnifying Party”) of "), specifying in detail the commencement of any action, suit or proceeding relating facts and circumstances with respect to a Third Party such claim and the basis for which indemnification may be sought or, if earlier, upon is available hereunder. If such event involves the assertion claim of any third party, the Indemnifying Party shall have the right to control the defense or settlement of such claim by a Third Party (it being understood and agreedclaim; provided, however, that (i) the failure by an Indemnified Party shall be entitled to give notice participate in the defense of such claim at its own expense, (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party (which approval shall not be unreasonably withheld or delayed) before entering into any settlement of such claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party of a Third complete release from all liability in respect to such claim or litigation, (iii) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, and shall assume all expense with respect to, the defense or settlement of any claim to the extent such claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party; provided, that, the Indemnified Party shall provide written notice to the Indemnifying Party of its election to assume control over the defense of such claim pursuant to this clause (iii), and (iv) if the Indemnifying Party is entitled to but fails to assume control over the defense of a claim as provided in this Section 10.1(c) 8.3, providing that Damages associated with such claim are covered by the indemnity provisions of Section 8.2, the Indemnified Party shall not relieve have the right to defend such claim, provided further that the Indemnified Party shall obtain the prior written approval of the Indemnifying Party (which approval shall not be unreasonably withheld or delayed) before entering into any settlement of its indemnification obligation under this Agreement except and only such claim if, pursuant to the extent that such Indemnifying Party is actually damaged or as a result of such failure settlement, injunctive or other non-monetary relief would imposed against the Indemnifying Party. In the event that the Indemnifying Party shall be obligated to give notice). Within [**] days after delivery of such notificationindemnify the Indemnified Party pursuant to this Article 7, the Indemnifying Party mayshall, upon written notice thereof to the Indemnified Party, assume control of the defense payment of such actionindemnity in full, suit, proceeding or claim with counsel reasonably satisfactory be subrogated to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release all rights of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on to the Indemnified Partyclaim to which such indemnification relates.
Appears in 2 contracts
Samples: Merger Agreement (Qiagen Nv), Merger Agreement (Qiagen Nv)
Claims for Indemnification. A Person Party entitled to indemnification under this Section 10.1 Article 11 (an “Indemnified Party”) shall give prompt written notification notification, with sufficient detail to allow the receiving Party to make an assessment thereof, to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) 10.3 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] Except with respect to indemnification claims pursuant to Section 11.2(d), in which case AbbVie shall have the first right to assume the defense of such claim in accordance with Section 8.3.2, within fourteen (14) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defensedefense and, without limiting the Indemnifying Party’s indemnification obligations, the Indemnifying Party shall reimburse the Indemnified Party for all reasonable and documented costs, including attorney fees, incurred by the Indemnified Party in defending itself within thirty (30) days after receipt of any invoice therefore from the Indemnified Party. The Party not controlling such defense may monitor and participate therein in the controlling Party’s defense at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of separate counsel to the Indemnified Party in connection therewith. 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 Party not controlling such defense shall cooperate with the controlling Party and shall make available to the controlling Party all witnesses, information and materials in such Party’s possession or under such Party’s control relating thereto as are reasonably required by the controlling Party, subject to appropriate provisions for the protection of confidentiality. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withholdwithheld, condition delayed or delayconditioned. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that is not solely for monetary damages, that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or thereto, that imposes any liability or obligation on the Indemnified Party, or that acknowledges fault by the Indemnified Party without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld.
Appears in 2 contracts
Samples: License Agreement (Kadmon Holdings, LLC), License Agreement (Kadmon Holdings, LLC)
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under this Section 10.1 Agreement, even if no payment is then due on account thereof, the person or entity seeking indemnification (an the “Indemnified Party”) shall give prompt written notification to notify (the “Notice”) the Party from against whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] within thirty days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party has actual knowledge of its existence and, when known, the facts constituting the basis for such claim. In the event of any Third Party Claim, the Notice shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep specify, if known, the other Party advised amount or an estimate of the status amount of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect theretoliability arising therefrom. The Indemnified Party shall not agree to settle or compromise any settlement of such action, suit, proceeding or claim Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed, unless suit shall have been instituted against the Indemnified Party and the Indemnifying Party shall not unreasonably withholdhave taken control of such suit in accordance with Section 11.4 below. With respect to a claim for indemnification arising solely as a result of a breach of a representation or warranty under this Agreement, condition or delay. The the Indemnifying Party shall not agree, without the prior written consent have a period of thirty days after receipt of the Indemnified PartyNotice (the “Cure Period”) to remedy such breach of representation or warranty giving rise to such claim; provided, which consent however, that if the Indemnifying Party is proceeding diligently and in good faith to cure such breach of representation or warranty, the Indemnifying Party shall have the right to extend the Cure Period on notice to the Indemnified Party for a period of ninety days following receipt of the Notice. Any breach of representation or warranty remedied within the Cure Period shall not unreasonably withhold, condition or delay, to any settlement thereafter constitute a basis for a claim of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partyindemnification.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tandem Health Care, Inc.), Asset Purchase Agreement (Tandem Health Care, Inc.)
Claims for Indemnification. A Person entitled to (a) The parties intend that all indemnification under this Section 10.1 claims be made as promptly as practicable by the party seeking indemnification (an the “Indemnified Party”) ). Whenever any claim shall give prompt written notification to arise for indemnification, the Indemnified Party shall promptly notify the party from whom indemnification is sought (the “Indemnifying Party”) of the commencement of any actionclaim, suit or proceeding relating and the facts constituting the basis for such claim. The failure to a Third so notify the Indemnifying Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent any liability that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof it may have to the Indemnified Party, assume control of except to the extent the Indemnifying Party demonstrates that the defense of such actionaction is materially prejudiced thereby.
(b) With respect to claims made by third parties, suitthe Indemnifying Party, proceeding upon acknowledgement of its obligations under the terms of the indemnity hereunder in connection with such third party claim, shall be entitled to assume the defense of such action or claim with counsel reasonably satisfactory to the Indemnified Party. If No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement without the consent of the Indemnified Party (A) if such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect to such claim, (B) if such judgment or settlement would result in the finding or admission of any violation of Law, or (C) if as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or such judgment or settlement would interfere with or adversely affect the business, operations or assets of the Indemnified Party. The Indemnified Party agrees to cooperate with the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at and its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and counsel in the defense thereof and shall consider recommendations made by the other Party with respect theretoagainst any such asserted claim. The Indemnified Party shall not agree have the right to any settlement participate at its own expense in the defense of such actionasserted claim, suit, proceeding but shall not be entitled to settle or compromise such asserted claim without the prior written consent of the Indemnifying Party, which such consent not to be unreasonably withheld. Notwithstanding the foregoing, if (i) the claim for indemnification is with respect to a criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party, (ii) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party, (iii) the Indemnifying Party has failed or is failing to vigorously prosecute or defend such claim or shall have failed to have engaged counsel reasonably satisfactory to the Indemnified Party within a reasonable period of time or (iv) the claim seeks an injunction or other equitable relief against the Indemnified Party, then (A) the Indemnifying Party shall not unreasonably withholdbe entitled to assume the defense of any such claim or action, condition (B) the Indemnified Party shall have the right to conduct and control the defense of such action or delay. The claim with counsel of its choosing and the reasonable legal and other expenses incurred by the Indemnified Party shall be borne by the Indemnifying Party and (C) the Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent be bound by any defense or settlement that the Indemnified Party shall not unreasonably withhold, condition or delay, make in respect to any settlement of such action, suit, proceeding action or claim or without the consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Indemnifying Party.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hampshire Group LTD), Asset Purchase Agreement (Lapolla Industries Inc)
Claims for Indemnification. A Person entitled In the event of the occurrence of -------------------------- any event which any party asserts is an indemnifiable event pursuant to this Article VIII, the party claiming indemnification under this Section 10.1 (an “the "Indemnified Party”") shall give provide prompt written notification notice to the Party from whom party required to provide indemnification is sought (the “"Indemnifying Party”) of "), specifying in detail the commencement of any action, suit or proceeding relating facts and circumstances with respect to a Third Party such claim and the basis for which indemnification may be sought or, if earlier, upon is available hereunder. If such event involves the assertion claim of any third party the Indemnifying Party shall have the right to control the defense or settlement of such claim by a Third Party (it being understood and agreedclaim; provided, however, that (a) the failure by an Indemnified Party shall be entitled to give participate in the defense of such claim at its own expense, (b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party (which approval shall not be unreasonably withheld or delayed) before entering into any settlement of such claim if, pursuant to or as a result of such settlement, injunctive or other non-monetary relief would be imposed against the Indemnified Party, (c) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, and shall assume all expense with respect to the defense or settlement of any claim to the extent such claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party, provided that the Indemnified Party shall provide written notice to the Indemnifying Party of its election to assume control over the defense of such claim pursuant to this Section 8.04(c), and (d) if the Indemnifying Party is entitled but fails to assume control over the defense of a Third Party claim as provided in this Section 10.1(c) 8.04, provided that the Damages associated with such claim are covered by the indemnity provisions of this Article VIII, the Indemnified Party shall not relieve have the right to defend such claim, provided further that the Indemnified Party shall obtain the prior written approval of the Indemnifying Party (which approval shall not be unreasonably withheld or delayed) before entering into any settlement of its indemnification obligation under this Agreement except and only such claim if, pursuant to the extent that such Indemnifying Party is actually damaged or as a result of such failure settlement, injunctive or other non-monetary relief would be imposed against the Indemnifying Party. In the event that the Indemnifying Party shall be obligated to give notice). Within [**] days after delivery of such notificationindemnify the Indemnified Party pursuant to this Article VIII, the Indemnifying Party mayshall, upon written notice thereof to the Indemnified Party, assume control of the defense payment of such actionindemnity in full, suit, proceeding or claim with counsel reasonably satisfactory be subrogated to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release all rights of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on to the Indemnified Partyclaim to which such indemnification relates.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Lewis Bret A), Asset Purchase Agreement (Jennings J B)
Claims for Indemnification. A Person entitled to (a) The party seeking indemnification under Sections 13.01 or 13.02 of this Section 10.1 Agreement (an “Indemnified Party”"Indemnitee") shall give prompt written notification notice to the Party from whom indemnification is sought other party or parties (the “"Indemnifying Party”") of the commencement of any actionclaim, suit liability or proceeding relating other circumstance as to a Third Party claim for which indemnification recovery may be sought orbecause of the indemnity set forth in Sections 13.01 or 13.02 and, if earlierin the case of a claim for indemnification by Buyer, upon in addition to all other rights to indemnification, Buyer shall have a right to setoff the assertion amount of said claim against the Holdback Amount, or any portion thereof, otherwise payable by Buyer. To the extent possible, the notice shall describe in reasonable detail the basis for the claim, include an itemized accounting of the claim, and provide a good faith estimate of the amount of the indemnified loss. Within fifteen (15) days after receipt of the notice, the Indemnifying Party shall either disburse funds to the Indemnitee as reimbursement for the amount of the claims or notify the Indemnitee of the Indemnifying Party's intent to dispute the claim. Failure by Indemnifying Party to notify Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by Indemnifying Party of its right to defend such action. If Indemnifying Party assumes the defense of any such claim by a Third Party (it being understood and agreedor litigation resulting therefrom, however, that the failure by an Indemnified Party to give notice obligations of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party hereunder as to such claim shall be limited to taking all steps necessary in the defense or settlement of its indemnification obligation under this Agreement except such claim or litigation resulting therefrom and only to hold the extent that Indemnitee harmless from and against any and all costs, losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notificationshall not, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of in the defense of such actionclaim or any litigation resulting therefrom, suit, proceeding or claim with counsel reasonably satisfactory consent to the Indemnified Party. If entry of any judgment (except with the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of Indemnitee, which consent shall not be unreasonably withheld) or enter into any settlement (except with the written consent of Indemnitee, which consent shall not be unreasonably withheld), which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by Indemnifying Party, which consent then, upon Indemnifying Party's failure to pay an amount sufficient to discharge any such claim or judgment, Indemnitee may pay and settle the same in good faith and Indemnifying Party's liability shall be conclusively established by any such payment.
(b) If Indemnifying Party shall not unreasonably withholdassume the defense of any such claim or litigation resulting therefrom, condition Indemnitee may defend against and settle such claim or delay. The litigation in such manner as it may deem appropriate and reasonable, and Indemnifying Party shall not agreepromptly reimburse Indemnitee for the amount of all expenses, without legal or otherwise, incurred by Indemnitee in connection with the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition defense against or delay, to any settlement of such action, suit, proceeding or claim or consent litigation to which the Indemnitee is entitled hereunder. If no settlement is made, Indemnifying Party shall promptly reimburse Indemnitee for the amount of any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability rendered with respect thereto to such claim or that imposes any liability such litigation and of all expenses, legal or obligation on otherwise, incurred by the Indemnified PartyIndemnitee in the defense thereof to which the Indemnitee is entitled hereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Newcor Inc), Asset Purchase Agreement (Newcor Inc)
Claims for Indemnification. 6.6.1 A Person entitled to indemnification under this Section 10.1 Sections 6.4 or 6.5 (an “"Indemnified Party”") shall give prompt written notification to the Party party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any action, suit or proceeding relating to a Third Party third party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party third party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party third party claim as provided in this Section 10.1(c) 6.6 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged prejudiced as a result of such failure to give notice). .
6.6.2 Within [*****] calendar days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. .
6.6.3 The Party party not controlling such defense may participate therein at its own expense. ; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided further that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel in any one jurisdiction for all Indemnified parties.
6.6.4 The Party party controlling such defense shall keep the other Party 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 party with respect thereto. .
6.6.5 The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition withheld or delaydelayed. The Indemnifying Party shall not agreenot, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party. For the avoidance of doubt, the Indemnifying Party is not obliged to act contrary to a judgment or to an official directive, even if not final and conclusive.
Appears in 2 contracts
Samples: Master Development & Manufacturing Services Agreement (Dyax Corp), Master Development & Manufacturing Services Agreement (Dyax Corp)
Claims for Indemnification. (i) A Person person entitled to indemnification under this Section 10.1 (an “Indemnified Party”) shall give prompt written notification to the Party person from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) 10.1 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to unless the extent Indemnified Party can demonstrate that such Indemnifying Party is actually damaged as a result of such failure to give noticenotice has not resulted in any prejudice to the Indemnifying Party). .
(ii) Within [**] thirty (30) days after delivery receipt of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Partyof its choice. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. .
(iii) The Party not controlling such defense may participate therein at its own expense. ; provided, that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection with the matter raising a conflict of interest between the Indemnifying Party and the Indemnified Party; provided further, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one (1) counsel in any one (1) jurisdiction for all Indemnified Parties.
(iv) 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 reasonable recommendations made by the other Party with respect thereto. .
(v) The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party.
Appears in 2 contracts
Samples: Collaboration and License Agreement (Pieris Pharmaceuticals, Inc.), Collaboration and License Agreement (Marika Inc.)
Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 Article VI (an “Indemnified Party”) shall give prompt written notification to the Party Person from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Third-Party claim as provided in this Section 10.1(c) 6.3 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] thirty (30) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defensedefense and, without limiting the Indemnifying Party’s indemnification obligations, the Indemnifying Party shall reimburse the Indemnified Party for all reasonable and verifiable out-of-pocket costs, including attorney fees, incurred by the Indemnified Party in defending itself within sixty (60) days after receipt of any invoice therefor from the Indemnified Party. The Party not controlling such defense may participate therein at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable and verifiable fees and expenses of counsel to the Indemnified Party in connection therewith. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withholdwithheld, condition delayed or delayconditioned. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release without the prior written consent of the Indemnified Party from all liability with respect thereto Party, which shall not be unreasonably withheld, delayed or that imposes any liability or obligation on the Indemnified Partyconditioned.
Appears in 2 contracts
Samples: Non Exclusive License and Material Transfer Agreement, Non Exclusive License and Material Transfer Agreement (Regeneron Pharmaceuticals Inc)
Claims for Indemnification. A Person entitled to The parties intend that all indemnification under this Section 10.1 claims hereunder be made as promptly as practicable by the party seeking indemnification (an “the "Indemnified Party”") shall give prompt written notification and that in the case of Purchaser all such claims be made pursuant to the terms and provisions of the Escrow Agreement until and including the Termination Date, as defined in the Escrow Agreement. After the Termination Date all such claims of Purchaser, including without limitation pre-Termination Date claims which, on or prior to the Termination Date, were admitted as valid pursuant to Escrow Agreement procedures or are or become the subject of an arbitration award in favor of the Indemnified Party but which are not satisfied pursuant to the Escrow Agreement, shall be presented to the Shareholders, and, in the case of all other claims, shall proceed according to the remaining terms and provisions of this subsection. Whenever any claim shall arise for indemnification hereunder (other than a claim to be submitted pursuant to aforesaid terms and provisions), the Indemnified Party shall promptly notify the party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon such claim. In the assertion case of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a Third Party claim as provided in this Section 10.1(c) shall not relieve third party, the notice to the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notificationshall specify, if known, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control amount or an estimate of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised amount 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 theretoliability arising therefrom. The Indemnified Party shall not agree settle or compromise any claim by a third party for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnifying Party is of the opinion that the Indemnified Party is not entitled to indemnification, or is not entitled to indemnification in the amount claimed in such notice, it shall deliver, within ten (10) business days after the receipt of such notice, a written objection to such claim and written specifications in reasonable detail of the aspects or details objected to, and the grounds for such objection. If the Indemnifying Party shall file timely written notice of objection to any claim for indemnification, the validity and amount of such claim shall be determined by arbitration pursuant to subsection 6.12 hereof. If timely notice of objection is not unreasonably withhold, condition delivered or delay. The if a claim by an Indemnified Party is admitted in writing by an Indemnifying Party shall not agreeor if an arbitration award is made in favor of an Indemnified Party, without the prior written consent of the Indemnified Party, which consent as a non-exclusive remedy, shall have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Indemnified Party shall not unreasonably withhold, condition or delay, any subsidiary thereof to any settlement Indemnifying Party by reason of such action, suit, proceeding this Agreement or claim any agreement or consent arrangement or contract to any judgment in respect thereof that does not include a complete and unconditional release of be entered into at the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClosing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Trans World Gaming Corp), Stock Purchase Agreement (Tottenham Andrew)
Claims for Indemnification. A Person entitled (i) If at any time prior to the Survival Date or Fundamental Rep Survival Date, as applicable, Parent determines in good faith that any Indemnified Party has a bona fide claim for indemnification under pursuant to this Article VIII, Parent may deliver to the Stockholder Representative a certificate signed by an officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.1 (8.3(d)(i), an “Indemnified PartyOfficer’s Claim Certificate”):
(A) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, stating that the failure by an Indemnified Party has a claim for indemnification pursuant to this Article VIII (or, in addition to and not limitation of any indemnification an Indemnified Party has available pursuant to Article VIII, with respect to any Tax matters, a Tax Authority has raised such Tax matter in audit of Parent or its subsidiaries (including the Surviving Corporation and its Subsidiaries), which could give notice of a Third Party claim as provided in this Section 10.1(crise to indemnifiable Losses);
(B) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that possible, contain a good faith non-binding, preliminary estimate of the amount of all indemnifiable Losses to which such Indemnifying Indemnified Party is actually damaged as a result claims to be entitled to receive under this Article VIII, which shall be the amount of Losses such failure Indemnified Party has so incurred or suffered or would reasonably be expected to give notice). Within [**] days after delivery of such notification, incur or suffer in the Indemnifying Party may, future; and
(C) specifying in reasonable detail (based upon written notice thereof the information then possessed by Parent) the material facts known to the Indemnified PartyParty giving rise to such claim and setting forth the specific representation and warranty or covenant alleged to have been breached by Company or other item of indemnification alleged to be at issue.
(ii) If the Stockholder Representative in good faith objects to any Claim made by Parent in any Officer’s Claim Certificate, assume control then the Stockholder Representative shall deliver a Written notice (a “Claim Dispute Notice”) to Parent during the 30-day period commencing upon receipt by the Stockholder Representative of the defense Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of such action, suit, proceeding or claim with counsel reasonably satisfactory to any Claim made by Parent in the Indemnified PartyOfficer’s Claim Certificate. If the Indemnifying Party Stockholder Representative does not assume control deliver a Claim Dispute Notice to Parent prior to the expiration of such defense30-day period, then (A) each Claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article VIII on the Indemnified Party shall control terms set forth in the Officer’s Claim Certificate and (B) if cash remains in the Escrow Account, then Parent may direct the Escrow Agent to deliver cash from the Escrow Account to Parent the amount of Losses specified in such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep Officer’s Claim Certificate that have been incurred or suffered to the other Party advised of the status date of such actioncertificate.
(iii) If the Stockholder Representative delivers a Claim Dispute Notice, suit, proceeding or claim then Parent and the defense thereof and Stockholder Representative shall consider recommendations made attempt in good faith to resolve any such objections raised by the other Party with respect theretoStockholder Representative in such Claim Dispute Notice. The Indemnified Party shall not If Parent and the Stockholder Representative agree to any settlement a resolution of such actionobjection, suitthen a memorandum setting forth the matters conclusively determined by Parent and the Stockholder Representative shall be prepared and signed by both parties and, proceeding or claim without if cash remains in the prior written consent of Escrow Account and if applicable, promptly delivered to the Indemnifying Party, which consent Escrow Agent directing the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without Escrow Agent to distribute cash from the prior written consent of Escrow Account in accordance with the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement terms of such actionmemorandum.
(iv) If no such resolution can be reached during the forty-five (45)-day period following Parent’s receipt of a given Claim Dispute Notice, suitthen upon the expiration of such forty-five (45)-day period, proceeding either Parent or claim or consent the Stockholder Representative may bring suit to resolve the objection in accordance with Sections 10.10 and 10.12. Parent and the Stockholder Representative shall promptly direct the Escrow Agent to act in accordance with the final, non-appealable decision reached pursuant to Sections 10.10 and 10.12 and distribute cash from the Escrow Account in accordance therewith, if applicable. Judgment upon any judgment final, non-appealable award rendered pursuant to Sections 10.10 and 10.12 may be entered in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partycourt having jurisdiction.
Appears in 2 contracts
Claims for Indemnification. A Person person entitled to indemnification under this Section 10.1 7.1 (an “Indemnified Party”) shall give prompt written notification to the Party person from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party third-party claim as provided in this Section 10.1(c7.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] thirty (30) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel for all Indemnified Parties. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withholdwithheld, condition delayed or delayconditioned. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party.
Appears in 2 contracts
Samples: Note Purchase Agreement (Acusphere Inc), License Agreement (Acusphere Inc)
Claims for Indemnification. A Person entitled to (a) Whenever any claim arises for indemnification under this Section 10.1 hereunder or an event which may result in a claim for such indemnification has occurred, the party seeking indemnification (an the “Indemnified Party”) ), shall give prompt written notification to promptly notify the Party party from whom indemnification is sought (the “Indemnifying Party”) of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim the extent known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreedclaim; provided, however, that the any failure by an Indemnified Party to give such notice will not waive any rights of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement Indemnified Party, except and only to the extent that such the Indemnifying Party is actually damaged as a result of such failure prejudiced thereby. The notice to give notice). Within [**] days after delivery of such notification, the Indemnifying Party maywill specify with reasonable specificity, upon written notice thereof to the Indemnified extent known, the basis under which the right to indemnification is being asserted and the amount or an estimate of the amount of the liability arising therefrom. The Indemnifying Party shall have the exclusive right to dispute, settle and defend all claims and Damages for which it is responsible under this Section 6 and thereafter shall so defend and pay any adverse final judgment or award or settlement amount for which it is responsible under this Section 6. Such defense and settlement shall be controlled exclusively by the Indemnifying Party, assume and the cost of such defense shall be borne by the Indemnifying Party, provided that the Indemnified Party shall have the right to participate in such defense at its own expense, subject to the exclusive control of the Indemnifying Party. The Indemnified Party shall cooperate in all reasonable respects in the investigation, trial, settlement and defense of each such actionclaim, suitincluding making personnel, proceeding or claim with counsel reasonably satisfactory books, and records relevant to the Indemnified claim available to the Indemnifying Party, without charge, except for reasonable out-of-pocket expenses. If the Indemnifying Party does not assume control fails to reasonably defend or settle a lawsuit for which it is responsible under this Section 6 as set forth above in breach of its obligations under this Section 6, then the Indemnified Party shall have the right to pay, compromise or defend any such defenselawsuit and to assert the amount of any judgment or settlement, plus the reasonable expenses of defense or settlement, as the claim for which the Indemnifying Party is responsible under this Section 6. The Indemnified Party shall also have the right, upon delivery of ten (10) days advance written notice to such effect to the Indemnifying Party, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default judgment in such a lawsuit prior to the assumption of the defense of the claim by the Indemnifying Party, and any reasonable expenses incurred by Indemnified Party so acting prior to the Indemnifying Party taking appropriate action shall be paid by the Indemnifying Party. Except as otherwise provided in this Section 6 above, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding settle or compromise any claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. The parties intend that all indemnification claims be made as promptly as practicable. Except as otherwise expressly set forth in this Section 6.3(a) above, the Indemnifying Party shall have no liability or responsibility for any cost, expenses, or settlements incurred without its prior written consent, not to be unreasonably withhold, condition or delay. The withheld.
(b) If the Indemnifying Party shall not agree, without the prior written consent is of the Indemnified Party, which consent opinion that the Indemnified Party shall is not unreasonably withholdentitled to indemnification, condition or delay, the Indemnifying Party will deliver a written objection to any settlement of such action, suit, proceeding or claim or consent to any judgment and written specifications in respect thereof that does not include a complete and unconditional release reasonable detail of the Indemnified Party from all liability with respect thereto aspects or that imposes any liability or obligation on details objected to, and the Indemnified Partygrounds for such objection. Any such dispute will be resolved pursuant to the procedures referenced in Section 8.14, below.
Appears in 2 contracts
Samples: Manufacturing Agreement (Ats Medical Inc), Asset Purchase Agreement (Ats Medical Inc)
Claims for Indemnification. A Person entitled (a) Subject to Section 8.1, whenever any claim arises for indemnification under this Section 10.1 hereunder or an event which may result in a claim for such indemnification has occurred, the party seeking indemnification (an the “Indemnified Party”) shall give prompt written notification to ), will promptly notify the Party party from whom indemnification is sought (the “Indemnifying Party”) of the commencement claim and, when known, the facts constituting the basis for such claim; provided, however, that any failure to give such notice will not waive any rights of any actionthe Indemnified Party, suit or proceeding relating except to a Third the extent the rights of the Indemnifying Party claim for which indemnification may be sought or, if earlier, upon are actually prejudiced thereby. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a “Third Party (it Claim”), the notice to the Indemnifying Party will specify with reasonable specificity, if known, the basis under which the right to indemnification is being understood asserted and agreedthe amount or an estimate of the amount of the liability arising therefrom. The Indemnifying Party shall have the right to dispute and defend all Third Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Indemnifying Party, and the cost of such defense shall be borne by the Indemnifying Party, except that the Indemnified Party shall have the right to participate in such defense at its own expense; provided, however, that the failure by an Indemnifying Party must first acknowledge that the claim is a bona fide indemnification claim under this Agreement. The Indemnified Party shall cooperate in all reasonable respects in the investigation, trial and defense of any such claim, including making personnel, books, and records relevant to give notice of a Third Party the claim as provided in this Section 10.1(c) shall not relieve available to the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such actionwithout charge, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Partyexcept for reasonable out-of-pocket expenses. If the Indemnifying Party does not assume control of such defensefails to take action within 30 days as set forth above, then the Indemnified Party shall control such defense. The have the right to pay, compromise or defend any Third Party not controlling such Claim and to assert the amount of any payment on the Third Party Claim plus the reasonable expenses of defense may participate therein at its own expense. The Party controlling such defense shall keep or settlement as 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 theretoclaim. The Indemnified Party shall not agree also have the right and upon delivery of 10 days advance written notice to such effect to the Indemnifying Party, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default prior to the assumption of the defense of the Third Party Claim by the Indemnifying Party, and any settlement of such actionreasonable expenses incurred by Indemnified Party so acting shall be paid by the Indemnifying Party. Except as otherwise provided herein, suitthe Indemnified Party will not, proceeding except at its own cost and expense, settle or claim compromise any Third Party Claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. The parties intend that all indemnification claims be made as promptly as practicable.
(b) If the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent is of the Indemnified Party, which consent opinion that the Indemnified Party shall is not unreasonably withholdentitled to indemnification, condition or delayis not entitled to indemnification in the amount claimed in such notice, the Indemnifying Party will deliver a written objection to any settlement such claim and written specifications in reasonable detail of the aspects or details objected to, and the grounds for such objection. The validity and amount of such action, suit, proceeding or claim or consent will be determined pursuant to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyArticle 9.
Appears in 2 contracts
Samples: Asset Purchase Agreement (American Medical Systems Holdings Inc), Asset Purchase Agreement (Iridex Corp)
Claims for Indemnification. A Person entitled to (a) Whenever any claim is made for indemnification under this Section 10.1 Article 11, the person claiming such indemnification (an “Indemnified Party”the "Claimant") shall will give prompt written notification notice to the Party from party against whom indemnification is sought (the “"Indemnifying Party”") of promptly after the commencement Claimant has actual knowledge of any action, suit or proceeding relating event which might give rise to a Third Party claim for indemnification under this Agreement; provided that if the Claimant receives a complaint, petition or any other pleading in connection with a claim which indemnification may be sought orrequires the filing of an answer or other responsive pleading, if earlier, upon it will furnish the assertion Indemnifying Party with a copy of any such claim by a Third Party pleading as soon as possible after receipt.
(it being understood and agreed, however, that the b) The failure by an Indemnified Party the Claimant to give notice of a Third Party claim as provided required in this Section 10.1(c11.3(a) shall above or a delay in giving such notice will not relieve affect the validity or amount of such claim and the indemnification obligations of the Indemnifying Party of its indemnification obligation under this Agreement will remain in effect as to such claim, except and only to the extent that such the Indemnifying Party can demonstrate that it has been materially prejudiced or materially and adversely affected thereby.
(c) If, after the amount of the claim of loss is actually damaged as a result of such failure specified by Claimant, and Claimant gives notice with respect thereto to give noticethe Indemnifying Party (the "Claim Notice"). Within [**] days after delivery of such notification, the Indemnifying Party mayobjects to any such claim or amount set forth in the Claim Notice, upon written it may give notice thereof to Claimant advising Claimant of its objection within twenty (20) days of the Indemnifying Party's receipt of the Claim Notice. If no such notice is timely given by the Indemnifying Party to Claimant, Claimant will be entitled to payment from the Indemnifying Party pursuant to this Agreement and the Escrow Agreement in the amount of the Loss arising out of the claim as adjusted pursuant to the Indemnified Party, assume control terms of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified PartyEscrow Agreement. If the Indemnifying Party does not assume control of advises Claimant within such defenseperiod that it objects to the claim, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim Claimant and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delaywill promptly meet and use their reasonable best efforts to settle the dispute in writing. The If Claimant and the Indemnifying Party shall not agreeare unable to reach agreement within thirty (30) days after the Indemnifying Party objects to the claim, without then either party may bring an action to determine the prior written consent disputed portion of such claim of Loss, with the undisputed portion to be recovered pursuant to the Escrow Agreement, if applicable, or this Agreement.
(d) The giving of the Indemnified Partynotice by Jabil to the Representative in accordance with Section 11.3 within the period of survival of any representations or warranties shall toll said survival period (but only with respect to such claim) until any liability under said notice is finally resolved and determined.
(e) Prior to the institution of any litigation to enforce this Section 11.3, which consent representatives of Jabil and the Indemnified Party Representative shall not unreasonably withholdengage in non-binding mediation in Denver, condition or delay, Colorado with respect to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partydisputes.
Appears in 2 contracts
Samples: Merger Agreement (Jabil Circuit Inc), Merger Agreement (Jabil Circuit Inc)
Claims for Indemnification. A Person entitled Whenever any claim shall arise for indemnification hereunder, the Indemnified Party shall notify in writing within 30 days (or such earlier time as might be required to indemnification under this Section 10.1 (an “Indemnified Party”) shall give prompt written notification to avoid prejudicing the Party from whom indemnification is sought (the “Indemnifying Party”'s position) of receiving notice of or obtaining actual knowledge of facts constituting the commencement basis 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 any such claim by a Third Party (it being understood and agreedwhichever occurs first), however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only the claim and, when known, the facts constituting the basis for such claim. The failure to notify the Indemnifying Party will not vitiate the right of the Indemnified Party to indemnity to the extent that such the Indemnifying Party is actually damaged not prejudiced as a result of such failure to give notice)failure. Within [**] days after delivery In the event of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or any claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defensefor indemnification, the Indemnified Party shall control be entitled to full indemnification in the amount claimed unless, within 30 days after receipt of written notice of a claim for indemnification, the Indemnifying Party delivers a written notice to the Indemnified Party objecting to the claim for indemnification, which notice specifies in reasonable detail the basis for the objection. If the parties are unable to resolve the dispute within 30 days, the claim for indemnification shall be settled pursuant to Section 9.7 hereof. In the event of any such defense. The claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party, the notice to the Indemnifying Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep specify, if known, the other Party advised amount or an estimate of the status amount of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect theretoliability arising therefrom. The Indemnified Party shall not agree settle or compromise any claim by a third party for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably delayed, conditioned or withheld, unless suit shall have been instituted against the Indemnified Party and the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement have taken control of such action, suit, proceeding or claim or consent to any judgment suit after notification thereof as provided in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartySection 9.6 below.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization and Merger (Healthcentral Com), Merger Agreement (Healthcentral Com)
Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 11.1 (an “Indemnified Party”) shall give prompt written notification to the Party Person from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party third-party claim as provided in this Section 10.1(c11.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days *** after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel for all Indemnified Parties. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withholdwithheld, condition delayed or delayconditioned. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party.
Appears in 1 contract
Claims for Indemnification. (a) THIRD-PARTY CLAIMS. A Person Party entitled to indemnification under this Article VI (which, in the case of a claim by the Stockholders, shall be deemed, solely for the purposes of this Section 10.1 6.3, to be the Stockholders' Representative (as defined below)) (an “Indemnified Party”"INDEMNIFIED PARTY") shall give prompt written notification to the Party from whom indemnification is sought (which, in the “Indemnifying Party”case of a claim by the Buyer, shall be deemed, solely for the purposes of this Section 6.3, to be the Stockholders' Representative) (the "INDEMNIFYING PARTY") of the commencement of any action, suit or proceeding relating to a Third Party third-party claim for which indemnification pursuant to this Article VI may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice)sought. Within [**] 15 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, suit or proceeding or claim with counsel reasonably satisfactory to the Indemnified Party, provided the Indemnifying Party acknowledges in writing to the Indemnified Party that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Party in connection with such action, suit or proceeding constitute Damages for which the Indemnified Party shall be entitled to indemnification pursuant to this Article VI. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party or Parties not controlling such defense may participate therein at its or their own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered "Damages" for purposes of this Agreement. The Party or Parties controlling such defense shall keep the other Party or Parties advised of the status of such action, suit, suit or proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other Party or Parties with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, suit or proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition withheld or delaydelayed. The Indemnifying Party shall not agreeagree to any settlement of such action, suit or proceeding without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not be unreasonably withhold, condition withheld or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partydelayed.
Appears in 1 contract
Claims for Indemnification. A Person entitled to Whenever any claim will arise for indemnification under this Section 10.1 hereunder, the party seeking indemnification (an “the "Indemnified Party”") shall give prompt written notification to will promptly notify the Party party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement claim and, when known, all of any action, suit or proceeding relating the facts constituting the basis for such claim. The failure so to a Third notify the Indemnifying Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall will not relieve the Indemnifying Party of its any liability that it may have to the Indemnified Party except to the extent the Indemnifying Party demonstrates that the defense of such action is prejudiced thereby. In the case of any such claim for indemnification obligation under this Agreement except and only hereunder resulting from or in connection with any claim or legal proceedings of a third party (a "Proceeding"), the Indemnifying Party will be entitled to participate in such legal proceedings and, to the extent that such it will wish (unless the Indemnifying Party is actually damaged as also a result of party to such failure to give notice). Within [**] days after delivery of such notification, Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate or the Indemnifying Party may, upon written notice thereof fails to provide reasonable assurance to the Indemnified PartyParty of its financial capacity to defend such Proceeding and provide indemnification with respect thereto), assume to control of the defense of such action, suit, proceeding or claim thereof with counsel reasonably satisfactory to the Indemnified Party. If Party and, after notice from Indemnifying Party to the Indemnified Party of its election so to control the defense thereof, the Indemnifying Party does will not assume control be liable to such Indemnified Party under this Section for any fees of other counsel or any other expenses with respect to the defense of such defenseProceeding, in each case subsequently incurred by the Indemnified Party shall control in connection with the defense thereof, other than reasonable costs of investigation. If an Indemnifying Party controls the defense of such defense. The a Proceeding, (i) no compromise or settlement thereof may be effected by the Indemnifying Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep without the other Party advised Indemnified Party's consent unless (A) there is no finding or admission of any violation of Law or any violation of the status rights of such actionany person and no effect on any other claims that may be made against the Indemnified Party and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and (ii) the Indemnifying Party will have no liability with respect to any compromise or settlement thereof effected without its consent. If notice is given to an Indemnifying Party of the commencement of any Proceeding and it does not, suitwithin twenty (20) days after the Indemnified Party's notice is given, proceeding or claim and give notice to the Indemnified Party of its election to assume the defense thereof, the Indemnifying Party will be bound by any determination made in such action or any compromise or settlement thereof and shall consider recommendations made effected by the other Party with respect theretoIndemnified Party. The Notwithstanding the foregoing, if an Indemnified Party shall not agree determines in good faith that there is a reasonable probability that a Proceeding may adversely effect it or its affiliates other than as a result of monetary damages, or the Proceeding involves Taxes, such Indemnified Party may, by notice to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent assume the exclusive right to defend, compromise or settle such Proceeding, but the Indemnifying Party will not be bound by any determination of a Proceeding so defended or any compromise or settlement thereof effected without its consent (which will not be unreasonably withheld). The remedies provided herein shall be cumulative and shall not unreasonably withhold, condition preclude assertion by any party of any rights or delay. The Indemnifying Party shall not agree, without the prior written consent seeking of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to other remedies against any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partyother party.
Appears in 1 contract
Claims for Indemnification. (a) A Person Party entitled to indemnification under this Section 10.1 Article VI (an “Indemnified Party”) shall give prompt written notification to the Party party from whom indemnification is sought (the “Indemnifying Party”) of the commencement of any action, suit or proceeding relating to a Third Party third party claim for which indemnification pursuant to this Article VI may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice)sought. Within [**] fifteen (15) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, suit or proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party party or parties not controlling such defense may participate therein at its or their own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered “Damages” for purposes of this Agreement. The Party party or parties controlling such defense shall keep the other Party party or parties advised of the status of such action, suit, suit or proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other Party party or parties with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, suit or proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agreeagree to any settlement of such action, suit or proceeding without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld.
(b) Notwithstanding the provisions of Section 6.3(a), if a third party asserts (other than by means of a lawsuit) that the Buyer or Orion is liable to it for a monetary or other obligation which may constitute or result in Damages for which the Buyer may be entitled to indemnification pursuant to this Article VI, and the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (i) the Buyer shall upon five (5) days written notice to Orion be entitled to satisfy such obligation, without consent from the Stockholders or Orion, (ii) the Buyer may make a claim for indemnification pursuant to this Article VI in accordance with the provisions of this Section 6.3, and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Section 6.3, for any such Damages for which it is entitled to indemnification pursuant to this Article VI (subject to the right of the Stockholders to dispute, in the manner set forth in this Section 6.3, the Buyer’s entitlement to indemnification or the amount for which it is entitled to indemnification).
(c) An Indemnified Party wishing to assert a claim for indemnification under this Article VI shall deliver to the Indemnifying Party a written notice (a “Claim Notice”) which contains (i) a description and the amount (the “Claimed Amount”) of any Damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Article VI for such Damages and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such Damages.
(d) Within twenty (20) days after delivery of a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall either: (i) agree that the Indemnified Party is entitled to receive all of the Claimed Amount (in which case such response shall be accompanied by a payment by the Indemnifying Party of the Claimed Amount, by check or by wire transfer; (ii) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party of the Agreed Amount, by check or by wire transfer; or (iii) contest that the Indemnified Party is entitled to receive any of the Claimed Amount. If the Indemnifying Party in such response contests the payment of all or part of the Claimed Amount, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. If such dispute is not unreasonably withhold, condition or delay, to any settlement resolved within sixty (60) days following the delivery by the Indemnifying Party of such actionresponse, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete the Indemnifying Party and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes shall submit such dispute to arbitration as set forth below in Section 6.5.
(e) For purposes of this Section 6.3, any liability or obligation on references to the Indemnified PartyParty or the Indemnifying Party (except provisions relating to an obligation to make or a right to receive any payments provided for in this Article VI) shall, if the Indemnified Party or the Indemnifying Party comprises one or more Stockholders, be deemed to refer to the Stockholders’ Representative. The Stockholders’ Representative shall have full power and authority on behalf of each Stockholder to take any and all actions on behalf of, execute any and all instruments on behalf of, and execute or waive any and all rights of, the Stockholders under this Article VI. The Stockholders’ Representative shall have no liability to any Stockholder for any action taken or omitted on behalf of the Stockholders pursuant to this Article VI. This Section 6.3 shall survive the Closing.
Appears in 1 contract
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under Sections 12 or 13, the following provisions shall apply:
(a) The indemnitee shall promptly notify the indemnitor of the claim and, when known, the facts constituting the basis for such claim. Such notice shall be accompanied by any evidence of such claim in the indemnitee’s possession or a description of the basis for such claim if such evidence is unavailable.
(b) In the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceeding by a person who is not a party to this Section 10.1 Agreement (“Third Party Claim”), such notice shall also specify, if known, the amount or an “Indemnified Party”estimate of the amount of the liability arising therefrom. With respect to any Third Party Claim, an indemnitee shall not settle or compromise or enter into any binding agreement to settle or compromise, or consent to entry of any judgment arising from, any such claim, except in accordance with subsections (c) and (d) hereof.
(c) The indemnitor shall give prompt written notification undertake the defense of any Third Party Claim by representatives of its own choosing reasonably satisfactory to the Party from whom indemnification is sought (indemnitee. The indemnitee shall have the “Indemnifying Party”) of the commencement of any action, suit or proceeding relating right to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of participate in any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice defense of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party Claim with advisory counsel of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein own choosing at its own expense. The .
(d) In the event the indemnitor, within a reasonable time after notice of any such Third Party controlling such defense Claim, fails to defend, the indemnitee or any subsidiary or affiliate thereof shall keep have the other Party advised of right to undertake the status of such actiondefense, suit, proceeding compromise or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such actionThird Party Claim on behalf of or for the account of the indemnitor, suitat the expense and risk of the indemnitor.
(e) An indemnitor shall not, proceeding or claim without the prior written consent of the Indemnifying Partyindemnitee, which consent the Indemnifying settle or compromise any such Third Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim Claim or consent to entry of any judgment in respect thereof that does not include a complete and include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the indemnitee an unconditional release of the Indemnified Party from all liability with respect thereto to such Third Party Claim.
(f) Notwithstanding the foregoing process for asserting Third Party Claims, if Purchaser is required to make payment to any third party in respect of an indemnification obligation of Seller or that imposes any liability or obligation on Principal indemnitor, Purchaser may offset such amount against the Indemnified PartyHoldback.
Appears in 1 contract
Claims for Indemnification. (a) A Person entitled to Party seeking indemnification under this Section 10.1 from the other hereunder (an “Indemnified Party”the "Indemnitee") shall give prompt written notification to the Party party from whom which indemnification is sought (the “Indemnifying Party”"Indemnitor") written notice (a "Claim Notice") of any claim which is subject to the commencement indemnity obligations set forth in Section 3.2 with sufficient promptness so as not to prejudice the Indemnitor's interests in respect 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 any such claim by a Third Party (it being understood and agreedany obligation of indemnity arising therefrom. The Claim Notice shall set forth, howeverto the best of the Indemnitee's knowledge, that all facts and other information with respect to the claim, including without limitation the anticipated amount of Losses or reasonable estimate thereof. The failure by an Indemnified Party to give prompt notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve affect the Indemnifying Party rights of its indemnification obligation under this Agreement the Indemnitee to indemnity hereunder, except and only to the extent that such Indemnifying Party is actually damaged as a result failure either shall have materially prejudiced the Indemnitor in the defense of such failure claim or shall have materially increased the amount of the obligation of the Indemnitor.
(b) The Indemnitor receiving a Claim Notice may object to give notice). Within [**] such Claim Notice by delivering written notice of such objection to the Indemnitee within fifteen (15) days after delivery receipt of the applicable Claim Notice. If the Indemnitor does not timely object to a Claim Notice in accordance with this Section 3.3, the Indemnitor shall, within thirty (30) days after receipt of the Claim Notice, either (i) pay the amount of the claim set forth in the Claim Notice, if a monetary amount is involved, or (ii) if a claim of a third party is involved, have the right to assume the defense of such notificationclaim.
(c) Indemnitor shall have the right to conduct and control, through counsel of its own choosing which counsel shall be reasonably satisfactory to Indemnitee, the Indemnifying Party maydefense of any such claim or any action arising therefrom; provided, upon written notice thereof that in conducting the defense of any such claim or action, Indemnitor shall, and shall cause its counsel to, consult with Indemnitee and its counsel, if any, selected by it, and shall keep such counsel, if any, and Indemnitee fully advised of the progress thereof. Indemnitee shall notify in writing Indemnitor promptly after the assertion of any claim, which may be the basis for indemnification hereunder and Indemnitor shall promptly arrange for counsel reasonably satisfactory to Indemnitee to defend such action. If Indemnitor does not or is unable to provide counsel acceptable to Indemnitee within 15 days after notification of such claim, Indemnitee may within reason select counsel of its own choosing to defend such claim. Moreover, in the Indemnified Partyevent Indemnitee reasonably determines that it must retain counsel to respond to a third party proceeding before such 15-day period or in the event Indemnitee has hired counsel in connection with a third party proceeding before Indemnitee becomes aware of the likely existence of a claim against Indemnitor, Indemnitee may continue to employ such counsel to conduct and control the applicable proceeding until substitute counsel chosen by Indemnitor, if any, is reasonably able to assume control of the defense of such action, suit, proceeding or claim with matter. Nothing herein contained shall prevent Indemnitee from retaining its own counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the cost and expense under 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 Indemnified Party shall not agree to any circumstances.
(d) No settlement of such action, suit, proceeding or any claim for which indemnification is sought hereunder shall be made without the prior written consent of both the Indemnifying PartyIndemnitor and the Indemnitee, which consent the Indemnifying Party shall not be unreasonably withholdwithheld or delayed.
(e) No claim for indemnification shall be made by an Indemnitee under this Section 3.3, condition or delay. The Indemnifying Party shall not agreeunless and until the aggregate of all Losses subject to indemnification exceeds $5,000, without the prior written consent and then only for Losses in excess of the Indemnified Partysuch amount, which consent amount shall be treated as a one-time deductible against the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement aggregate of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of all claims by the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyIndemnitee.
Appears in 1 contract
Samples: Asset Purchase and Patent Assignment Agreement (Youthstream Media Networks Inc)
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under this Section 10.1 8, the party seeking indemnification for Losses (an the “Indemnified Party”) ), shall give prompt written notification to promptly notify the Party party from whom indemnification is sought (the “Indemnifying Party”), and such Indemnifying Party’s counsel pursuant to Section 12 herein, in writing (the “Indemnification Notice”) of the commencement claim, which Indemnification Notice shall include the facts, to the extent known, constituting the basis for such claim, the specific section of any action, suit or proceeding relating to a Third Party this Agreement upon which the claim for which indemnification may be sought oris based and an estimate, if earlierpossible, upon of the assertion amount of any such claim damages suffered by a Third Party (it being understood and agreedthe Indemnified Party; provided, however, that the failure by an Indemnified to so notify the Indemnifying Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not will relieve the Indemnifying Party of its indemnification obligation from liability under this Agreement except with respect to such claim only if, and only to the extent that such Indemnifying Party is actually damaged as a result of that, such failure to give noticenotify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim. In the event that any such claim for indemnification hereunder results from or is in connection with any claim or legal proceedings by a third party (a “Third Party Claim”), the Indemnification Notice shall specify, if known, the amount or an estimate of the amount of the liability arising therefrom and shall attach all correspondence and demands from such third party. Within [**] days after delivery of such notificationIn the event that any claim for indemnification involves a matter other than a Third Party Claim, the Indemnifying Party may, upon shall have thirty (30) days from receipt of the Indemnification Notice to object to such claim by delivery of a written notice thereof of such objection to the Indemnified Party, assume control Party specifying in reasonable detail the basis for such objection. Failure to timely object shall constitute a final and binding acceptance of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If for indemnification by the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 claim shall consider recommendations made by the other Party be paid in accordance with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartySection 8.5 hereof.
Appears in 1 contract
Claims for Indemnification. A Person entitled to The parties intend that all indemnification under this Section 10.1 claims hereunder be made as promptly as practicable by the party seeking indemnification (an the “Indemnified PartyClaimant”) shall give prompt written notification to ). Whenever any claim arises for indemnification hereunder the Party Claimant will promptly notify the party from whom indemnification is sought (the “Indemnifying Party”) of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon such claim. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a “Third Party (it being understood and agreedClaim”), however, that the failure by an Indemnified Party notice to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party will specify, if known, the amount or an estimate of its indemnification obligation under this Agreement except and only to the extent that such amount of the liability arising therefrom. The Indemnifying Party is actually damaged as a result shall have the right to dispute and defend all Third Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Indemnifying Party, and the cost of such failure defense shall be borne by the Indemnifying Party, except that the Claimant shall have the right to give notice). Within [**] days after delivery of participate in such notificationdefense at its own expense; and provided, however that the Indemnifying Party may, upon written notice thereof to must first acknowledge that the Indemnified Party, assume control of claim is a bona fide indemnification claim under this Agreement. The Claimant shall cooperate in all reasonable respects in the defense of any such actionclaim, suitincluding making personnel, proceeding or claim with counsel reasonably satisfactory books, and records relevant to the Indemnified claim available to the Indemnifying Party, without charge, except for reasonable out-of-pocket expenses. If the Indemnifying Party does not assume control fails to take action within thirty (30) days as set forth above, then the Claimant shall have the right to pay, compromise or defend any Third Party Claim and to assert the amount of any payment on the Third Party Claim plus the reasonable expenses of defense or settlement as the claim. The Claimant shall also have the right, exercisable in good faith, to take such defenseaction as may be necessary to avoid a default prior to the assumption of the defense of the Third Party Claim by the Indemnifying Party, and any reasonable expenses incurred by Claimant in so acting shall be paid by the Indemnifying Party. Except as otherwise provided herein, the Indemnified Claimant will not settle or compromise any Third Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree Claim for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. If the Indemnifying Party is of the opinion that the Claimant is not entitled to indemnification, or is not entitled to indemnification in the amount claimed in such notice, it will deliver, within twenty (20) business days after the receipt of such notice, a written objection to such claim and written specifications in reasonable detail of the aspects or details objected to, and the grounds for such objection. If timely notice of objection is not delivered or if a claim by an Claimant is admitted in writing by an Indemnifying Party, the Claimant, as a non-exclusive remedy, will have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Claimant or any subsidiary thereof to any Indemnifying Party by reason of this Agreement or any agreement or arrangement or contract to be entered into at the Closing. If the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent be obligated to indemnify the Indemnified Party shall not unreasonably withholdpursuant to this Article 9, condition or delaythe Indemnifying Party shall, to any settlement upon payment of such actionindemnity in full, suit, proceeding or claim or consent be subrogated to any judgment in respect thereof that does not include a complete and unconditional release all rights of the Indemnified Party from all liability with respect thereto or to the Damages to which such indemnification relates; provided, however, that imposes the Indemnifying Party shall be subrogated only to the extent of any liability or obligation on the Indemnified Partyamount paid by it pursuant to this Article 9 in connection with such Damages.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Genomic Solutions Inc)
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under this Section 10.1 8, GreenMan on the one hand or Xxxxxxx, on the other hand, as the case may be (an “the party or parties seeking such indemnification, the "Indemnified Party”) "), shall give prompt written notification to promptly notify the Party from whom indemnification is sought other party or parties hereto (the “"Indemnifying Party”") in writing (the "Indemnification Notice") of the commencement of any actionclaim and, suit or proceeding relating to a Third Party when known, the facts constituting the basis for such claim for which indemnification may be sought or, if earlier, upon (including all relevant documentation). In the assertion event of any such claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party (a "Third Party Claim"), the Indemnification Notice shall specify, if known, the amount or an estimate of the amount of the liability arising therefrom. In the event that any claim for indemnification involves a matter other than a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notificationClaim, the Indemnifying Party may, upon shall have sixty (60) days from receipt of the Indemnification Notice to object to such claim by delivery of a written notice thereof of such objection to the Indemnified Party, assume control Party specifying in reasonable detail the basis for such objection. Failure to timely to so object shall constitute a final and binding acceptance of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If Claim for Indemnification by the Indemnifying Party does and the claim shall be paid in accordance with Section 8.05 hereof. If an objection is timely interposed by the Indemnifying Party and the dispute is not assume control of resolved within twenty (20) business days from the date (such defense, period is hereinafter referred to as the "Negotiation Period") the Indemnified Party receives such objection, such dispute shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep be resolved by arbitration in accordance with the other Party advised provisions 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 theretoSection 9 hereof. The Indemnified Party shall not agree settle or compromise any claim by a third party for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent consent, which shall not be unreasonably withheld or delayed, of the Indemnifying Party; provided, which consent however, that if suit shall have been instituted against the Indemnified Party and the Indemnifying Party shall not unreasonably withholdhave taken control of such suit within ten (10) days after notification thereof, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition have the right to settle or delay, compromise such claim upon giving notice to any settlement of such action, suit, proceeding or claim or consent to any judgment the Indemnifying Party as provided in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartySubsection 8.04.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Greenman Technologies Inc)
Claims for Indemnification. A Person entitled to The Parties intend that all indemnification under this Section 10.1 (an “Indemnified Party”) shall give prompt written notification to claims hereunder be made as promptly as practicable by the Party Claimant. Whenever any claim arises for indemnification hereunder the Claimant will promptly notify the party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon such claim. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a "Third Party Claim), the notice to the Indemnifying Party will specify, if known, the amount or an estimate of the amount of the liability arising therefrom. The failure to so notify the Indemnifying Party shall not constitute a waiver of such claim but a Claimant shall not be entitled to receive any indemnification with respect to any Loss that occurred as a result of the failure of the Claimant to give such notice. The Indemnifying Party shall have the right (without prejudice to the right of any Claimant to participate at its expense through counsel of its own choosing) to defend or prosecute such claim at its expense and through counsel of its own choosing if it being understood and agreedgives written notice of its intention to do so not later than twenty days following notice thereof of such claim by the Claimant or such shorter time period as required so that the interests of the Claimant would not be materially prejudiced as a result of its failure to have received such notice; provided, however, that if the failure defendants in any action shall include both an Indemnifying Party and a Claimant and the Claimant shall have reasonably concluded that counsel selected by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party has a conflict of its indemnification obligation under this Agreement except and only interest because of the availability of different or additional defenses to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notificationClaimant, the Indemnifying Party may, upon written notice thereof Claimant shall have the right to the Indemnified Party, assume control of select separate counsel to participate in the defense of such actionaction on its behalf, suit, proceeding or claim with counsel reasonably satisfactory to at the Indemnified expense of the Indemnifying Party. If the Indemnifying Party does not assume control so choose to defend or prosecute any such claim asserted by a third party for which a Claimant would be entitled to indemnification hereunder, then the Claimant shall be entitled to recover from the Indemnifying Party, on a monthly basis, all of its attorneys' reasonable fees and other costs and expenses of litigation of any nature whatsoever incurred in the defense of such defenseclaim. Notwithstanding the assumption of the defense of any claim by an Indemnifying Party pursuant to this paragraph, the Indemnified Party Claimant shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep have the other Party advised right to approve the terms 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 Indemnified Party shall not agree to any settlement of a claim (which approval shall not be unreasonably withheld). In the event that the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnifying Party shall have the right to dispute and defend such actionThird Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Except as otherwise provided herein, suit, proceeding the Claimant will not settle or claim compromise any Third Party Claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. If the Indemnifying Party shall is of the opinion that the Claimant is not unreasonably withholdentitled to indemnification, condition or delayis not entitled to indemnification in the amount claimed in such notice, it will deliver, within twenty (20) business days after the receipt of such notice, a written objection to such claim and written specifications in reasonable detail of the aspects or details objected to, and the grounds for such objection. If timely notice of objection is not delivered or if a claim by an Claimant is admitted in writing by an Indemnifying Party, the Claimant, as a non-exclusive remedy, will have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Claimant or any subsidiary thereof to any Indemnifying Party by reason of this Agreement or any agreement or contemplated by this Agreement. The Indemnifying Party and the Claimant shall cooperate in furnishing evidence and testimony and in any other manner which the other may reasonably request, and shall in all other respects have an obligation of good faith dealing, one to the other, so as not agreeto unreasonably expose the other to an undue risk of loss. The Claimant shall be entitled to reimbursement for out-of-pocket expenses reasonably incurred by it in connection with such cooperation. Except for fees and expenses for which indemnification is provided pursuant to Section 6.1 or Section 6.2, without as the prior written consent of case may be, and as provided in the Indemnified Partypreceding sentence, which consent the Indemnified Party each party shall not unreasonably withhold, condition or delay, bear its own fees and expenses incurred pursuant to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partythis paragraph 6.5.
Appears in 1 contract
Samples: Asset Purchase Agreement (Netsmart Technologies Inc)
Claims for Indemnification. A Person Each party entitled to indemnification under this Section 10.1 6 (an the “Indemnified Party”) shall give prompt written notification notice to the Party from whom party required to provide indemnification is sought (the “Indemnifying Party”) of the commencement promptly after such Indemnified Party has actual knowledge of any action, suit or proceeding relating claim as to a Third Party claim for which indemnification indemnity may be sought orand shall unless in the Indemnified Party’s reasonable judgment a conflict of interest may exist between the Indemnified Party and the Indemnifying Party in respect of such claim, if earlier, upon permit the assertion Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by a Third the Indemnified Party (it being understood which approval shall not unreasonably be withheld), and agreedthe Indemnified Party may participate in such defense at such party’s expense, however, and provided further that the failure by an of any Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) herein shall not relieve the Indemnifying Party of its indemnification obligation obligations under this Agreement Section 6 except and only to the extent that such Indemnifying Party is actually damaged as a result of such the failure to give notice)such notice is materially prejudicial to an Indemnifying Party’s ability to defend such action. Within [**] days after delivery No Indemnifying Party, in the defense of any such notificationclaim or litigation, shall, except with the Indemnifying Party may, upon written notice thereof to the consent of each Indemnified Party, assume control consent to entry of the defense of such action, suit, proceeding any judgment or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to enter into any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and as an unconditional release of term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with in respect thereto to such claim or that imposes any liability or obligation on the Indemnified Partylitigation.
Appears in 1 contract
Claims for Indemnification. (a) A Person Party entitled to indemnification under this Section 10.1 Article VI (an “"Indemnified Party”") shall give prompt written notification to the Party party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any action, suit or proceeding relating to a Third Party third party claim for which indemnification pursuant to this Article VI may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice)sought. Within [**] fifteen (15) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, suit or proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party party or parties not controlling such defense may participate therein at its or their own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered "Damages" for purposes of this Agreement. The Party party or parties controlling such defense shall keep the other Party party or parties advised of the status of such action, suit, suit or proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other Party party or parties with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, suit or proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agreeagree to any settlement of such action, suit or proceeding without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld.
(b) Notwithstanding the provisions of Subsection 6.3(a), if a third party asserts (other than by means of a lawsuit) that the Buyer or CygnaCom is liable to it for a monetary or other obligation which may constitute or result in Damages for which the Buyer may be entitled to indemnification pursuant to this Article VI, and the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (i) the Buyer shall upon five (5) days written notice to CygnaCom be entitled to satisfy such obligation, without consent from the Stockholders or CygnaCom, (ii) the Buyer may make a claim for indemnification pursuant to this Article VI in accordance with the provisions of this Section 6.3, and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Section 6.3, for any such Damages for which it is entitled to indemnification pursuant to this Article VI (subject to the right of the Stockholders to dispute, in the manner set forth in this Section 6.3, the Buyer's entitlement to indemnification or the amount for which it is entitled to indemnification).
(c) An Indemnified Party wishing to assert a claim for indemnification under this Article VI shall deliver to the Indemnifying Party a written notice (a "Claim Notice") which contains (i) a description and the amount (the "Claimed Amount") of any Damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Article VI for such Damages and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such Damages.
(d) Within twenty (20) days after delivery of a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall either: (i) agree that the Indemnified Party is entitled to receive all of the Claimed Amount (in which case such response shall be accompanied by a payment by the Indemnifying Party of the Claimed Amount, by check or by wire transfer; (ii) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the "Agreed Amount") (in which case such response shall be accompanied by a payment by the Indemnifying Party of the Agreed Amount, by check or by wire transfer; or (iii) contest that the Indemnified Party is entitled to receive any of the Claimed Amount. If the Indemnifying Party in such response contests the payment of all or part of the Claimed Amount, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. If such dispute is not unreasonably withhold, condition or delay, to any settlement resolved within sixty (60) days following the delivery by the Indemnifying Party of such actionresponse, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete the Indemnifying Party and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes shall submit such dispute to arbitration as set forth below in Section 6.5.
(e) For purposes of this Section 6.3, any liability or obligation on references to the Indemnified PartyParty or the Indemnifying Party (except provisions relating to an obligation to make or a right to receive any payments provided for in this Article VI) shall, if the Indemnified Party or the Indemnifying Party comprises one or more Stockholders, be deemed to refer to the Stockholders' Representative. The Stockholders' Representative shall have full power and authority on behalf of each Stockholder to take any and all actions on behalf of, execute any and all instruments on behalf of, and execute or waive any and all rights of, the Stockholders under this Article VI. The Stockholders' Representative shall have no liability to any Stockholder for any action taken or omitted on behalf of the Stockholders pursuant to this Article VI. This Section 6.3 shall survive the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Entrust Technologies Inc)
Claims for Indemnification. A Person (a) Except as provided for in Section 8.4(b), whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification under this Section 10.1 (an “the "Indemnified Party”") shall give prompt written notification promptly notify the party obligated to the Party from whom provide indemnification is sought (the “"Indemnifying Party”") in writing of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreedclaim; provided, however, that the failure by an Indemnified to so notify the Indemnifying Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only hereunder to the extent such failure does not materially prejudice the Indemnifying Party (it being agreed that the inability to defend a claim which gives rise to any obligation to pay any monetary amount of any kind shall be considered to prejudice such Indemnifying Party is actually damaged as a result of such failure to give noticeParty). Within [**] days after delivery In the event of such notificationany claim or demand asserted against the Indemnified Party by a third party upon which the Indemnified Party may claim indemnification, the Indemnifying Party may, upon shall give written notice thereof to the Indemnified Party within 15 days after receipt of notice of such indemnification claim from the Indemnified Party indicating whether the Indemnifying Party intends to assume the defense of such claim or demand. Notwithstanding such assumption, the Indemnified Party shall have the right to participate in such defense, by written notice given to the Indemnifying Party within 15 days from the date of the Indemnifying Party's notice, provided that such participation shall be at the expense of the Indemnified Party unless there is a conflict of interest between the Indemnified Party and the Indemnifying Party or different defenses are available to the Indemnified Party, assume control of in which case the defense cost of such action, suit, proceeding or claim with participation (including attorneys fees for counsel reasonably satisfactory to selected by the Indemnified Party) shall be reimbursed by the Indemnifying Party. If the Indemnifying Party assumes the defense and the Indemnified Party does not participate, the Indemnifying Party shall have the right fully to control and to settle the proceeding. If the Indemnified Party elects to participate in such defense, the parties shall cooperate in the defense of the proceeding, and shall not settle the same without the consent of each, which consent shall not be unreasonably withheld. If the Indemnifying Party elects not to assume control of such the defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein have the right to do so (at its own expense. The Party controlling such defense shall keep the other Party advised expense of the status of such actionIndemnifying Party), suit, proceeding or claim and may settle the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim same without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, .
(b) With respect to any claim for indemnification made pursuant to Section 8.2(f) which does or would reasonably be expected to involve any investigative, clean up or other remediation ("Remedial Work"), Buyer shall have the option to direct the defense, compromise or settlement of such actionclaim until the threshold provided for in Section 8.5(a)(i) has been met, suitand thereafter Seller shall have the option to direct the defense, proceeding compromise or settlement of any such claim (such party, as applicable, shall be the "Controlling Party"). Both parties agree to cooperate in good faith in resolving any such claim. In addition, the Controlling Party agrees to (a) use consultants and contractors which are reasonably satisfactory to the other party, (b) ensure that any Remedial Work is conducted in a safe, lawful and workmanlike manner in compliance with all Environmental Laws, (c) provide the other party with reasonable advance notice of and an opportunity to comment upon any filings to be made with any Governmental Entity or consent other third parties and (d) provide the other party with reasonable advance notice of and an opportunity to any judgment review and comment upon plans for and written reports of, and to observe any, Remedial Work. To the extent Seller is the Controlling Party, Seller agrees that it will use reasonable efforts to avoid interference with the normal business operations of Buyer and Buyer agrees to provide necessary access during normal business hours to the property of Buyer. Where Seller is the Controlling Party and has received a bid for necessary Remedial Work from a qualified consultant or contractor, Buyer shall have the option to direct or undertake the Remedial Work itself, in respect thereof that does not include a complete and unconditional release which case the related indemnifiable Buyer Losses shall be limited to the amount of the Indemnified Party from all liability with respect thereto bid, notwithstanding anything in Sections 8.2 or that imposes any liability or obligation on 8.5 to the Indemnified Partycontrary.
Appears in 1 contract
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under this Section 10.1 hereunder, the party seeking indemnification (an “the "Indemnified Party”") shall give prompt written notification to promptly notify the Party party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon such claim. In the assertion case of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a Third Party claim as provided in this Section 10.1(c) shall not relieve third party, the notice to the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notificationshall specify, if known, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control amount or an estimate of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised amount 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 theretoliability arising therefrom. The Indemnified Party shall not agree settle or compromise any claim by a third party for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnifying Party is of the opinion that the Indemnified Party is not entitled to indemnification, or is not entitled to indemnification in the amount claimed in such notice, it shall deliver, within twenty (20) days after the receipt of such notice, a written objection to such claim and written specifications in reasonable detail of the aspects or details objected to, and the grounds for such objection. If the Indemnifying Party shall file timely written notice of objection to any claim for indemnification, the validity and amount of such claim shall be determined by arbitration pursuant to Section 9.12 hereof. If timely notice of a claim is given by the Indemnified Party or if objection is not unreasonably withhold, condition delivered or delay. The if a claim by an Indemnified Party is admitted in writing by an Indemnifying Party shall not agreeor if an arbitration award is made in favor of an Indemnified Party, without the prior written consent of the Indemnified Party, which consent as a non-exclusive remedy, shall have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Indemnified Party shall not unreasonably withholdor any subsidiary thereof under this Agreement or any agreement or arrangement or contract to be entered into in connection herewith, condition or delayincluding without limitation, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of payments under the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyEscrow Agreement.
Appears in 1 contract
Claims for Indemnification. A Person entitled to Any party seeking indemnification under this Section 10.1 Article XI (an “"Indemnified Party”") promptly shall give prompt written notification Notice to the Party party from whom which such indemnification is sought (the “"Indemnifying Party”") of the commencement of any claim, action, proceeding or suit or proceeding relating that may give rise to a Third Party claim liability for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that indemnification; but the failure by of an Indemnified Party to give notice of a Third so notify an Indemnifying Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of any of its indemnification obligation obligations under this Agreement Article XI, except and only to the extent that such the Indemnifying Party is actually damaged as a result of such and materially prejudiced by the failure to give notice)receive timely Notice. Within [**] days after delivery Without limiting the generality of such notificationthe other provisions of this Article XI, the Indemnifying Party may, upon written notice thereof shall assume and be responsible for all expenses with respect to the Indemnified Partydefense, assume control settlement, adjustment or compromise of the defense of such any claim, action, suit, proceeding or claim with counsel reasonably satisfactory suit as to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim which this Article XI requires indemnification; and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withholdacknowledge in writing to the Indemnified Party its obligation to indemnify and hold harmless the Indemnified Party from and against any Losses arising from any such claim, condition action proceeding or delaysuit. The Any Indemnified Party may, if it so desires, employ counsel at its own expense to assist in the handling of such matters. Neither an Indemnifying Party nor an Indemnified Party shall not agreeenter into any settlement, adjustment or compromise of any such claim, action, proceeding or suit, or cease to defend against the same, without the prior written consent of the Indemnified Partyother party, which consent the Indemnified Party shall not be unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partywithheld.
Appears in 1 contract
Claims for Indemnification. A Person If a claim for Damages -------------------------- (a "CLAIM") is to be made by a party entitled to indemnification under this Section 10.1 (an “Indemnified Party”) hereunder against the indemnifying party, the party claiming such indemnification shall give prompt written notification notice (a "CLAIM NOTICE") to the Party from whom indemnifying party as soon as practicable after the party entitled to indemnification is sought (the “Indemnifying Party”) of the commencement becomes aware of any actionfact, suit condition or proceeding relating event which may give rise to a Third Party claim Damages for which indemnification may be sought orunder this Article 8. Such Claim Notice shall --------- specify the nature and amount of the Claim asserted, if earlieractually known to the party entitled to indemnification hereunder. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, upon written notice thereof shall be given to the assertion indemnifying party as promptly as practicable (and in any event within 15 calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall acknowledge in writing to the indemnified party that the indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the indemnifying party shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such Claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. If the indemnifying party fails to assume the defense of such Claim within 15 calendar days after receipt of the Claim Notice, the indemnified party against which such Claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such claim by a Third Party (it being understood on behalf of and agreedfor the account and risk of the indemnifying party; provided, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) such Claim shall not relieve be compromised or settled without -------- ------- the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Partyindemnifying party, which consent the Indemnifying Party shall not be unreasonably withholdwithheld. In the event the indemnified party assumes the defense of the Claim, condition the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or delaysettlement. The Indemnifying Party indemnifying party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to be liable for any settlement of such action, suit, proceeding or claim or consent any action effected pursuant to and in accordance with this Article 8 and for any final judgment (subject to any judgment in respect thereof that does not include a complete right of appeal), --------- and unconditional release the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of the Indemnified Party from all liability with respect thereto such settlement or that imposes any liability or obligation on the Indemnified Partyjudgment.
Appears in 1 contract
Claims for Indemnification. (i) A Person person entitled to indemnification under this Section 10.1 10.10 (an “Indemnified Party”) shall give prompt written notification to the Party person from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Third-Party claim as provided in this Section 10.1(c) 10.10 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged prejudiced as a result of such failure to give notice). .
(ii) Within [*****] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. .
(iii) The Party not controlling such defense may participate therein at its own expense; provided, that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided further, however, that in no event shall the * Confidential Treatment Requested. Omitted portions filed with the Commission. Indemnifying Party be responsible for the fees and expenses of more than one counsel in any one jurisdiction for all Indemnified Parties.
(iv) 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. .
(v) The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition withheld or delaydelayed. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party.
Appears in 1 contract
Samples: License Agreement (Dyax Corp)
Claims for Indemnification. A Person entitled (a) Subject to Section 8.1, whenever any claim arises for indemnification under this Section 10.1 hereunder the party seeking indemnification (an “the "Indemnified Party”) shall give prompt written notification to "), will promptly notify in writing the Party party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement claim and, when known, the facts constituting the basis for such claim; provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party, except to the extent the rights of the Indemnifying Party are materially prejudiced. In the event that the Stockholders are seeking indemnification as the Indemnified Party hereunder, or indemnification is sought against the Stockholders as an Indemnifying Party hereunder, then in either such case, the Stockholders' Representative shall be entitled to act on behalf of, and receive notice on behalf of, the Stockholders for any action, suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon and all purposes stated therein. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a "Third Party (it Claim"), the notice to the Indemnifying Party will specify with reasonable specificity, if known, the basis under which the right to indemnification is being understood asserted and agreedthe amount or an estimate of the amount of the liability arising therefrom; provided, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such any failure to give notice). Within [**] days after delivery such notice will not waive any rights of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory except to the Indemnified Party. If extent the rights of the Indemnifying Party does not assume control are materially prejudiced. The Indemnifying Party shall have the sole right to dispute and defend all Third Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Indemnifying Party, and the cost of such defensedefense shall be borne by the Indemnifying Party, except that the Indemnified Party shall control such defense. The Party not controlling have the right to participate in such defense may participate therein at its own expense. The Indemnified Party controlling shall cooperate in all reasonable respects in the investigation, trial and defense of any such claim, including making personnel, books, and records relevant to the claim available to the Indemnifying Party, without charge, except for reasonable out-of-pocket expenses. If the Indemnifying Party fails to take action within thirty (30) of receipt of notice of an indemnification claim by the Indemnified Party, then the Indemnified Party shall have the right to pay, compromise or defend any Third Party Claim and to assert the amount of any payment on the Third Party Claim plus the reasonable expenses of defense shall keep the other Party advised or settlement 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 theretoclaim. The Indemnified Party shall not agree also have the right and upon delivery of advance written notice to such effect to the Indemnifying Party, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default judgment prior to the assumption of the defense of the Third Party Claim by the Indemnifying Party, so long as the Indemnifying Party has received due and timely notice from the Indemnified Party as set forth above, and any settlement of such actionreasonable expenses incurred by Indemnified Party so acting shall be paid by the Indemnifying Party; provided that the Indemnifying Party agrees that the Third Party claim is a bona fide indemnification claim under this Agreement. Except as otherwise provided herein, suitthe Indemnified Party will not, proceeding except at its own cost and expense, settle or claim compromise any Third Party Claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, delayed or conditioned. The parties intend that all indemnification claims be made as promptly as practicable.
(b) If the Indemnifying Party shall is of the opinion that the Indemnified Party is not unreasonably withholdentitled to indemnification, condition or delay. The is not entitled to indemnification in the amount claimed in such notice, the Indemnifying Party shall not agreewill deliver, without within ten (10) Business Days after the prior receipt of such written consent notice, a written objection to such claim and written specifications in reasonable detail, if known, of the aspects or details objected to, and the grounds for such objection. If a claim, including the amount thereof, by an Indemnified Party is expressly admitted in writing by an Indemnifying Party or if an arbitration award is made in favor of an Indemnified Party, the Indemnified Party, which consent as a non-exclusive remedy, will have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Indemnified Party shall not unreasonably withhold, condition or delay, any Subsidiary thereof to any settlement Indemnifying Party by reason of such action, suit, proceeding this Agreement or claim any agreement or consent arrangement or contract to any judgment in respect thereof that does not include a complete and unconditional release of be entered into at the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClosing.
Appears in 1 contract
Samples: Merger Agreement (BSD Medical Corp)
Claims for Indemnification. A Person entitled to (a) Whenever any claim shall arise for indemnification under this Section 10.1 (an “11, the Indemnified Party”) Party shall give prompt written notification to promptly notify the Party from whom indemnification is sought Representative (the “Indemnifying Party”), in writing (the “Indemnification Notice”) of the commencement claim, specifying in reasonable detail the basis of any action, suit the claim and the amount or proceeding relating to a Third Party claim an estimate of the amount of the Losses for which indemnification may be sought oris sought; provided that, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified to so notify the Indemnifying Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement obligations hereunder except and only to the extent that such the Indemnifying Party has been materially prejudiced thereby. In the event of any such claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party (a “Third Party Claim”), the Indemnification Notice shall specify, if known, the amount or an estimate of the amount of the Losses for which indemnification is actually damaged as sought and shall attach all correspondence and demands from such third party. In the event that any claim for indemnification involves a result of such failure to give notice). Within [**] days after delivery of such notificationmatter other than a Third Party Claim, the Indemnifying Party may, upon shall have thirty (30) days from receipt of the Indemnification Notice to object to such claim by delivery of a written notice thereof of such objection to the Indemnified Party, assume control of Party specifying in reasonable detail the defense of basis for such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 theretoobjection. The Indemnified Party shall not agree settle or compromise any claim by a third party for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent of the Indemnifying PartyParty (such consent not to be unreasonably withheld or delayed); provided, which however, (i) that the Indemnified Party shall have the right to settle or compromise such claim upon giving notice to the Indemnifying Party so long as such settlement expressly and unconditionally releases the Indemnifying Party from all liabilities and obligations with respect to such claim, without prejudice and (ii) if the Indemnified Party settles or compromises such claim without the consent of the Indemnifying Party and the Indemnifying Party shall not unreasonably withholdhave had the option to conduct the defense of such claim pursuant to this Section 11, condition such settlement or delay. The compromise shall not affect in any way the right of the Indemnifying Party to contest its obligation to indemnify Indemnified Party with respect to such claim pursuant to this Agreement or otherwise.
(b) Parent and Merger Sub acknowledge and agree that they shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, make any claim for indemnification pursuant to this Section 11 against any settlement of such action, suit, proceeding or one Stockholder unless Parent and Merger Sub makes a claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from for indemnification against all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyStockholders.
Appears in 1 contract
Claims for Indemnification. A Person Each party entitled to indemnification under this Section 10.1 7 (an “the "Indemnified Party”") shall give prompt written notification notice to the Party from whom party required to provide indemnification is sought (the “"Indemnifying Party”") of the commencement promptly after such Indemnified Party has actual knowledge of any action, suit or proceeding relating claim as to a Third Party claim for which indemnification indemnity may be sought orand shall unless in the Indemnified Party's reasonable judgment a conflict of interest may exist between the Indemnified Party and the Indemnifying Party in respect of such claim, if earlier, upon permit the assertion Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by a Third the Indemnified Party (it being understood which approval shall not unreasonably be withheld), and agreedthe Indemnified Party may participate in such defense at such party's expense, however, and provided further that the failure by an of any Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) herein shall not relieve the Indemnifying Party of its indemnification obligation obligations under this Agreement Section 7 except and only to the extent that such Indemnifying Party is actually damaged as a result of such the failure to give notice)such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. Within [**] days after delivery No Indemnifying Party, in the defense of any such notificationclaim or litigation, shall, except with the Indemnifying Party may, upon written notice thereof to the consent of each Indemnified Party, assume control consent to entry of the defense of such action, suit, proceeding any judgment or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to enter into any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and as an unconditional release of term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with in respect thereto to such claim or that imposes any liability or obligation on the Indemnified Partylitigation.
Appears in 1 contract
Claims for Indemnification. (a) A Person person entitled to indemnification under this Section 10.1 14 (an “Indemnified Party”) shall give prompt written notification to the Party person from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Third-Party claim as provided in this Section 10.1(c) 14 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged prejudiced as a result of such failure to give notice). .
(b) Within [**] thirty (30) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. ; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided further, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel in any one jurisdiction for all Indemnified Parties.
(c) 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. .
(d) The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party.
Appears in 1 contract
Claims for Indemnification. A Person (a) If a claim arises for indemnification hereunder, the Party and its Affiliated Parties entitled to indemnification under this Section 10.1 (an the “Indemnified Party”) shall give prompt written notification to notify the other Party from whom indemnification is sought (the “Indemnifying Party”) within twenty (20) days following notice of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreedclaim; provided, however, that the failure by an Indemnified to so notify the Indemnifying Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only Obligation hereunder to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, does not materially prejudice the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defenseTo make a claim, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree deliver to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party a certificate (a “Claim Certificate”) which shall not unreasonably withhold(i) state that the Indemnified Party is entitled to indemnification pursuant to this Agreement (referencing the pertinent section(s) of this Agreement); and (ii) specify in reasonable detail, condition to the extent known, each individual item of Loss for which the Indemnified Party is entitled to indemnification, the basis for any anticipated Liability, and to the extent known, the nature of the misrepresentation, breach or delayclaim to which each such item is related and, if known, the computation of the amount (or an estimate thereof) to which such Indemnified Party claims to be entitled hereunder.
(b) If the Indemnifying Party objects to the indemnification specified in any Claim Certificate, the Indemnifying Party shall, within twenty (20) days after receipt thereof, deliver to the Indemnified Party a notice to such effect, specifying in reasonable detail the basis for such objection. The Indemnifying Party shall not agreeParties shall, without within the prior written consent thirty (30) day period beginning on the date of receipt by the Indemnified PartyParty of such objection, which consent attempt in good faith to resolve their dispute. If the Parties timely resolve such dispute, the Parties shall promptly prepare and sign a memorandum setting forth such agreement. Should the Parties be unable to timely resolve the dispute, then the Indemnified Party shall not unreasonably withhold, condition or delay, be permitted to any settlement of such action, suit, proceeding or claim or consent submit the same to any judgment dispute resolution as set forth in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartySection 10.9.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Delek US Holdings, Inc.)
Claims for Indemnification. A Person entitled to (a) The parties intend that all indemnification under this Section 10.1 claims be made as promptly as practicable by the party seeking indemnification (an “the "Indemnified Party”) "). Whenever any claim shall give prompt written notification to arise for indemnification, the Indemnified Party shall promptly notify the party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any actionclaim, suit or proceeding relating and the facts constituting the basis for such claim. The failure to a Third so notify the Indemnifying Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent any liability that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof it may have to the Indemnified Party, assume control of except to the extent the Indemnifying Party demonstrates that the defense of such actionaction is materially prejudiced thereby.
(b) With respect to claims made by third parties, suitthe Indemnifying Party, proceeding upon acknowledgment of its obligations under the terms of the indemnity hereunder in connection with such third-party claim, shall be entitled to assume the defense of such action or claim with counsel reasonably satisfactory to the Indemnified Party. If No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement without the consent of the Indemnified Party (A) if such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect to such claim, (B) if such judgment or settlement would result in the finding or admission of any violation of Law, or (C) if as a result of such consent or settlement injunctive or other equitable relief would be imposed against the Indemnified Party or such judgment or settlement would interfere with or adversely affect the business, operations or assets of the Indemnified Party. The Indemnified Party agrees to cooperate with the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at and its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and counsel in the defense thereof and shall consider recommendations made by the other Party with respect theretoagainst any such asserted liability. The Indemnified Party shall not agree have the right to any settlement participate at its own expense in the defense of such actionasserted liability, suit, proceeding but shall not be entitled to settle or claim compromise such asserted liability without the prior written consent of the Indemnifying Party, which such consent not to be unreasonably withheld. Notwithstanding the foregoing, if (i) the claim for indemnification is with respect to a criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party, (ii) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party, (iii) the Indemnifying Party has failed or is failing to vigorously prosecute or defend such claim or shall have failed to have engaged counsel reasonably satisfactory to the Indemnified Party within a reasonable period of time or (iv) the claim seeks an injunction or other equitable relief against the Indemnified Party, then (A) the Indemnifying Party shall not unreasonably withholdbe entitled to assume the defense of any such claim or action, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent (B) the Indemnified Party shall not unreasonably withhold, condition or delay, have the right to any settlement conduct and control the defense of such action, suit, proceeding action or claim or consent to any judgment in respect thereof that does not include a complete with counsel of its choosing and unconditional release of the legal and other expenses incurred by the Indemnified Party from all liability with respect thereto shall be borne by the Indemnifying Party and (C) the Indemnifying Party shall be bound by any defense or settlement that imposes any liability or obligation on the Indemnified PartyParty shall make in respect to such action or claim.
Appears in 1 contract
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under this Section 10.1 8, the Company or the Seller, as the case may be (an “the party seeking such indemnification, the "Indemnified Party”) "), shall give prompt written notification to promptly notify the Party other party or parties hereto (the party or parties from whom indemnification is sought sought, the "Indemnifying Party"), and such Indemnifying Party's counsel pursuant to Section 11 herein, in writing (the “Indemnifying Party”"Indemnification Notice") of the commencement claim, which writing shall include the facts constituting the basis for such claim, the specific section of any action, suit or proceeding relating to a Third Party this Agreement upon which the claim for which indemnification may be sought oris based and an estimate, if earlierpossible, upon of the assertion amount of damages suffered by the Indemnified Party. In the event of any such claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party (a "Third Party Claim"), the Indemnification Notice shall specify, if known, the amount or an estimate of the amount of the liability arising therefrom and shall attach all correspondence and demands from such third party. In the event that any claim for indemnification involves a matter other than a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notificationClaim, the Indemnifying Party may, upon shall have 30 days from receipt of the Indemnification Notice to object to such claim by delivery of a written notice thereof of such objection to the Indemnified Party, assume control Party specifying in reasonable detail the basis for such objection. Failure to timely object shall constitute a final and binding acceptance of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If for indemnification by the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 claim shall consider recommendations made by the other Party be paid in accordance with respect theretoSection 8.5 hereof. The Indemnified Party shall not agree settle or compromise any claim by a third party for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent consent, which shall not be unreasonably withheld or delayed, of the Indemnifying Party; provided, which consent however, that if suit shall have been instituted against the Indemnified Party and the Indemnifying Party shall not unreasonably withholdhave taken control of such suit within ten (10) days after notification thereof, condition or delay. The Indemnifying Party shall not agreeas provided in Section 11 of this Agreement, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withholdhave the right to settle or compromise such claim upon giving notice to the Indemnifying Party, condition or delay, to any so long as such settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include includes a complete and unconditional full release of the Indemnified Indemnifying party from such Third Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClaim.
Appears in 1 contract
Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 (an “The Indemnified Party”) shall Party will give the Indemnifying Party prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) of the commencement notice 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 any such claim Indemnification required by a Third Party (it being understood and agreedSection 10.1; provided, however, that no failure or delay by the failure by an Indemnified Party to give in providing such notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement obligations hereunder, except and only to the extent that such the Indemnifying Party is actually damaged as a result of has been prejudiced thereby. If such failure to give noticeclaim involves any claim, assessment, action, suit or proceeding brought by any third party ("Third Party Claim"). Within [**] days after delivery of such notification, the Indemnifying Party shall undertake the defense thereof and will consult with the Indemnified Party concerning such defense during the course thereof. In the event that the Indemnifying Party within ten (10) business days after notice of any Third Party Claim fails to defend or to acknowledge its obligation to defend such Third Party Claim, the Indemnified Party may, upon written notice thereof to the Indemnified Indemnifying Party, assume control of elect to undertake the defense defense, compromise or settlement of such action, suit, proceeding or claim with counsel reasonably satisfactory to Third Party Claim on behalf and for the Indemnified Party. If account and risk of the Indemnifying Party does not assume control of such defense, and without any requirement to obtain the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying PartyParty to any such compromise or settlement. Notwithstanding anything herein to the contrary, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agreenot, without the prior Indemnified Party's written consent of the Indemnified Party(such consent not to be unreasonably withheld), which consent the Indemnified settle or compromise any Third Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim Claim or consent to entry of any judgment in respect thereof that does not include a complete and unconditional release of thereof, unless the Indemnifying Party delivers to the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on its written agreement to indemnify the Indemnified PartyParty for any and all Damages sustained or incurred by the Indemnified Party which result from, arise out of or are incidental to the defense or settlement of such Third Party Claim.
Appears in 1 contract
Samples: Assisted Living Consultant and Management Services Agreement (Alternative Living Services Inc)
Claims for Indemnification. A Person entitled (i) If any third party shall notify any Lender Indemnified Party with respect to any matter (a "THIRD PARTY CLAIM") which may give rise to a claim for indemnification against any other Party (the "INDEMNIFYING PARTY") under this Section 10.1 (an “Section, then the Lender Indemnified Party”) Party shall give prompt written notification to the promptly notify each Indemnifying Party from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreedthereof in writing; provided, however, that no delay on the failure by an part of the Lender Indemnified Party to give notice of a Third in notifying any Indemnifying Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification from any obligation under this Agreement except hereunder 34 38 unless (and only then solely to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, extent) the Indemnifying Party may, upon written notice thereof thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the Lender Indemnified Party, assume control of Party against the defense of such action, suit, proceeding or claim Third Party Claim with counsel of its choice reasonably satisfactory to the Lender Indemnified Party. If Party so long as (A) the Indemnifying Party notifies the Lender Indemnified Party in writing within fifteen (15) days after the Lender Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Lender Indemnified Party from and against the entirety of any Adverse Consequences the Lender Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (B) the Indemnifying Party provides the Lender Indemnified Party with evidence reasonably acceptable to the Lender Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (C) the Third Party Claim involves only money damages and does not assume control of such defenseseek an injunction or other equitable relief, (D) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Lender Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Lender Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.
(iii) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Subsection 10.6(c)(ii) above, (A) the Lender Indemnified Party shall control such defense. The Party not controlling such defense may participate therein retain separate co-counsel at its own expense. The Party controlling such sole cost and expense and participate in the defense shall keep the other Party advised of the status Third Party Claim, (B) the Lender Indemnified Party will not consent to the entry of such action, suit, proceeding any judgment or claim and the defense thereof and shall consider recommendations made by the other Party enter into any settlement with respect thereto. The Indemnified to the Third Party shall not agree to any settlement of such action, suit, proceeding or claim Claim without the prior written consent of the Indemnifying PartyParty (not to be unreasonably withheld, which consent conditioned or delayed), and (C) the Indemnifying Party shall will not unreasonably withhold, condition consent to the entry of any judgment or delay. The Indemnifying enter into any settlement with respect to the Third Party shall not agree, Claim without the prior written consent of the Indemnified Party, which consent the Lender Indemnified Party shall (not to be unreasonably withholdwithheld, condition conditioned or delaydelayed).
(iv) In the event any of the conditions in Subsection 10.6(c)(ii) above is or becomes unsatisfied, however, (A) the Lender Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement of such actionwith respect to, suit, proceeding or claim or consent to the Third Party Claim in any judgment in respect thereof that does not include a complete manner it reasonably may deem appropriate (and unconditional release of the Lender Indemnified Party from all liability with respect thereto need not consult with, or that imposes obtain any liability or obligation on consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Lender Indemnified Party.Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys'
Appears in 1 contract
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for -------------------------- indemnification under this Section 10.1 5, the Buyer or the Company, as the case may be, seeking indemnification (an “the "Indemnified Party”") shall give prompt written notification to promptly notify the Party ----------------- party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any action------------------ claim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreedclaim; provided, however, that the failure by an Indemnified Party to give any delay in providing notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except responsibility hereunder unless (and then only to the extent that extent) such delay materially impairs the Indemnifying Party is actually damaged as Party's ability to defend the claim. In the event of any such claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a result of such failure to give notice). Within [**] days after delivery of such notificationthird party, the Indemnifying Party maynotice shall specify, upon written notice thereof to if known, the Indemnified Party, assume control amount or an estimate of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised amount 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 theretoliability arising therefrom. The Indemnified Party shall not agree settle or compromise any claim by a third party for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent consent, which shall not be unreasonably withheld or delayed, of the Indemnifying Party; provided, which consent however, that if suit shall have been instituted against the Indemnified Party and the Indemnifying Party shall not unreasonably withholdhave taken control of such suit after notification thereof as provided in Subsection 5.3 of this Agreement, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withholdhave the right to settle or compromise such claim upon giving 30 days' prior written notice to the Indemnifying Party as provided in Subsection 5.3. Notwithstanding the foregoing, condition if a third party asserts that an Indemnified Person is liable to such third party for a monetary or delayother obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Section 5, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Person shall be entitled to satisfy such obligation, without consent from the Indemnifying Party, (ii) such Indemnified Person may and shall make a claim for indemnification pursuant to this Section 5 and (iii) such Indemnified Person shall be reimbursed for any settlement such Damages for which it is ultimately determined to be entitled to indemnification pursuant to this Section 5 (it being understood that nothing in this Section 5 shall operate or be construed to affect the right of the Indemnifying Party to contest the amount or appropriateness of such action, suit, proceeding reimbursement or claim the settlement or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on satisfaction by the Indemnified Party).
Appears in 1 contract
Claims for Indemnification. (a) A Person Party entitled to indemnification under this Section 10.1 Article VI (an “"Indemnified Party”") shall give prompt written notification to the Party party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any action, suit or proceeding relating to a Third Party third party claim for which indemnification pursuant to this Article VI may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice)sought. Within [**] 15 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, suit or proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party party or parties not controlling such defense may participate therein at its or their own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered "Damages" for purposes of this Agreement. The Party party or parties controlling such defense shall keep the other Party party or parties advised of the status of such action, suit, suit or proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other Party party or parties with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, suit or proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agreeagree to any settlement of such action, suit or proceeding without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not be unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partywithheld.
Appears in 1 contract
Samples: Stock Purchase Agreement (Idexx Laboratories Inc /De)
Claims for Indemnification. A Person (a) If a claim arises for indemnification hereunder, the Party entitled to indemnification under this Section 10.1 (an the “Indemnified Party”) shall give prompt written notification to notify the other Party from whom indemnification is sought (the “Indemnifying Party”) within ten (10) Business Days of notice of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreedclaim; provided, however, that the failure by an Indemnified to so notify the Indemnifying Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only hereunder to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, does not materially prejudice the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defenseTo make a claim, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree deliver to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party a certificate (a “Claim Certificate”) which shall not unreasonably withhold(i) state that the Indemnified Party is entitled to indemnification pursuant to this Agreement (referencing the pertinent section(s) of the Agreement); and (ii) specify in reasonable detail, condition to the extent known, each individual item of Loss for which the Indemnified Party is entitled to indemnification, the basis for any anticipated Liability, and to the extent known, the nature of the misrepresentation, breach or delayclaim to which each such item is related and, if known, the computation of the amount (or an estimate thereof) to which such Indemnified Party claims to be entitled hereunder.
(b) If the Indemnifying Party objects to the indemnification specified in any Claim Certificate, the Indemnifying Party shall, within twenty (20) days after receipt thereof, deliver to the Indemnified Party a notice to such effect, specifying in reasonable detail the basis for such objection. The Indemnifying Party shall not agreeParties shall, without within the prior written consent thirty (30) day period beginning on the date of receipt by the Indemnified PartyParty of such objection, which consent attempt in good faith to resolve their dispute. If the Parties timely resolve such dispute, the Parties shall promptly prepare and sign a memorandum setting forth such agreement. Should the Parties be unable to timely resolve the dispute, then the Indemnified Party shall not unreasonably withhold, condition or delay, be permitted to any settlement submit the same to a court of such action, suit, proceeding or claim or consent to any judgment competent jurisdiction as set forth in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartySection 10.8.
Appears in 1 contract
Samples: Asset Purchase Agreement (Caseys General Stores Inc)
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under this Section 10.1 hereunder, the party seeking indemnification (an “the "Indemnified Party”") shall give prompt written notification to promptly notify the Party party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement claim and, when known, the facts constituting the basis for such claim. The Indemnified Party shall use commercially reasonable efforts to mitigate the damages suffered by the Indemnified Party, provided, however that such efforts will be at the expense of any action, suit or proceeding relating the Indemnifying Party and shall be considered to a Third Party be part of the claim for which indemnification may be sought or, if earlier, upon indemnity is sought. In the assertion case of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a Third Party claim as provided in this Section 10.1(c) shall not relieve third party, the notice to the Indemnifying Party shall specify, if known, the amount or an estimate of its indemnification obligation under this Agreement except and only to the extent that such amount of the liability arising therefrom. If the Indemnifying Party is actually damaged as a result of the opinion that the Indemnified Party is not entitled to indemnification, or is not entitled to indemnification in the amount claimed in such notice, it shall deliver, within twenty (20) days after the receipt of such failure notice, a written objection to give notice)such claim and written specifications in reasonable detail of the aspects or details objected to, and the grounds for such objection. Within [**] days after delivery of such notification, If the Indemnifying Party may, upon shall fail to file timely written notice thereof of objection to any claim for indemnification, it shall be deemed to have agreed to the claim for indemnification and shall promptly pay to the Indemnified Party, assume control of Party the defense amount of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Partyclaim. If the Indemnifying Party does not assume control deliver a written objection in such twenty (20) day period, the validity and the amount of the claims shall be determined by arbitration pursuant to Section 8.13 hereof. As a non-exclusive remedy, an Indemnified Party shall have the right to set-off the amount of such defenseclaim or award against any amount yet owed, whether due or to become due, by the Indemnified Party shall control such defenseto any Indemnifying Party by reason of this Agreement or any agreement or arrangement or contract to be entered into in connection herewith. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep In the event that Purchaser seeks indemnity from the Shareholders for any matter other Party advised than a failure of the status of such actionShareholders to pay to Purchaser the adjustment to purchase price as described in Subsection 1.3 hereof, suit, proceeding Purchaser shall seek indemnity from the amounts on deposit in accordance with the Escrow Agreement prior to seeking indemnity directly from one or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent more of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyShareholders.
Appears in 1 contract
Claims for Indemnification. A Person If any Investor Indemnitee or Company Indemnitee (an "Indemnitee") shall believe that such Indemnitee is entitled to indemnification under pursuant to this Section 10.1 (an “Indemnified Party”) 8 in respect of any Damages, such Indemnitee shall give the appropriate Indemnifying Party (which for purposes hereof, in the case of an Investor Indemnitee, means the Company, and in the case of a Company Indemnitee, means the Investor) prompt written notification notice thereof. Any such notice shall set forth in reasonable detail and to the Party from whom indemnification is sought (extent then known the “Indemnifying Party”) of the commencement of any action, suit or proceeding relating to a Third Party basis for such claim for which indemnification may be sought or, if earlier, upon the assertion indemnification. The failure of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party Indemnitee to give notice of a Third Party any claim as provided in this Section 10.1(c) for indemnification promptly shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement adversely affect such Indemnitee's right to indemnity hereunder except and only to the extent that such Indemnifying Party is actually damaged as a result failure adversely affects the right of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon to assert any reasonable defense to such claim. Each such claim for indemnity shall expressly state that the Indemnifying Party shall have only the twenty (20) business day period referred to in the next sentence to dispute or deny such claim. The Indemnifying Party shall have twenty (20) business days following its receipt of such notice either (a) to acquiesce in such claim by giving such Indemnitee written notice thereof of such acquiescence or (b) to object to the Indemnified Party, assume control claim by giving such Indemnitee written notice of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Partyobjection. If the Indemnifying Party does not assume control object thereto within such twenty (20) business day period, such Indemnitee shall be entitled to be indemnified for all Damages reasonably and proximately incurred by such Indemnitee in respect of such defense, the Indemnified Party shall control such defenseclaim. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent If the Indemnifying Party shall not unreasonably withholdobjects to such claim in a timely manner, condition or delay. The Indemnifying Party shall not agree, without the prior written consent senior management of the Indemnified PartyCompany and such Indemnitee shall meet to attempt to resolve such dispute. If the dispute cannot be resolved by the senior management, which consent either party may make a written demand for formal dispute resolution and specify therein the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release scope of the Indemnified Party from all liability dispute. Within thirty (30) days after such written notification, the parties agree to meet for one (1) day with respect thereto or that imposes any liability or obligation on an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within thirty days after the Indemnified Partyone day mediation, either party may begin litigation proceedings. Nothing in this section shall be deemed to require arbitration.
Appears in 1 contract
Samples: Stock Purchase and Investor Rights Agreement (Xiox Corp)
Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 Article 10 (an “Indemnified Party”) shall give prompt written notification to the Party Person from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) 10.3 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] fourteen (14) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defensedefense and, without limiting the Indemnifying Party’s indemnification obligations, the Indemnifying Party shall reimburse the Indemnified Party for all reasonable costs, including attorney fees, incurred by the Indemnified Party in defending itself within thirty (30) days after receipt of any invoice therefore from the Indemnified Party. The Party not controlling such defense may participate therein at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party in connection therewith. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withholdwithheld, condition delayed or delayconditioned. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or thereto, that imposes any liability or obligation on the Indemnified Party or that acknowledges fault by the Indemnified Party without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld.
Appears in 1 contract
Samples: Product Manufacture and Supply Agreement (Alphatec Holdings, Inc.)
Claims for Indemnification. A Person Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification under this Section 10.1 (an the “Indemnified Party”) shall give prompt written notification promptly notify the party obligated to the Party from whom provide indemnification is sought (the “Indemnifying Party”) in writing of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought orsuch claim, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreedprovided, however, that the failure by an Indemnified to so notify the Indemnifying Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only hereunder to the extent such failure does not prejudice the Indemnifying Party (it being agreed that the inability to defend a claim which gives rise to any obligation to pay any monetary amount of any kind shall be considered to prejudice such Indemnifying Party is actually damaged as a result of such failure to give noticeParty). Within [**] days after delivery In the event of such notificationany claim or demand asserted against the Indemnified Party by a third party upon which the Indemnified Party may claim indemnification, the Indemnifying Party may, upon shall give written notice thereof to the Indemnified Party within thirty (30) days after receipt of notice of such indemnification claim from the Indemnified Party indicating whether the Indemnifying Party intends to assume the defense of such claim or demand. Notwithstanding such assumption, the Indemnified Party shall have the right to participate in such defense, by written notice given to the Indemnifying Party within thirty (30) days from the date of the Indemnifying Party’s notice, provided that such participation shall be at the expense of the Indemnified Party unless there is a conflict of interest between the Indemnified Party and the Indemnifying Party or different defenses are available to the Indemnified Party, assume control of in which case the defense cost of such action, suit, proceeding or claim with participation (including attorneys fees for counsel reasonably satisfactory to selected by the Indemnified Party) shall be reimbursed by the Indemnifying Party. If the Indemnifying Party assumes the defense and the Indemnified Party does not participate, the Indemnifying Party shall have the right fully to control and to settle the Action. If the Indemnified Party elects to participate in such defense, the parties shall cooperate in the defense of the Action, and shall not settle the same without the consent of each, which consent shall not be unreasonably withheld. If the Indemnifying Party elects not to assume control of such the defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein have the right to do so (at its own expense. The Party controlling such defense shall keep the other Party advised expense of the status of such actionIndemnifying Party), suit, proceeding or claim and may settle the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim same without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ddi Corp)
Claims for Indemnification. A Person entitled (a) Whenever any claim for indemnification shall arise under this Article 7, the Party asserting such claim (the "Indemnified Party") shall notify the other Party (the "Indemnifying Party") of the claim stating the amount claimed to be due and payable or an estimate of the claim if contingent or unliquidated, the basis of the claim and the provision or provisions of this Agreement under which such claim is asserted. Any notice under this Section 7.4(a) shall be accompanied by copies of any documents relied on by any claimant and furnished to the Indemnified Party. Within 30 calendar days after receipt of such notice, the Indemnifying Party shall by written notice either (i) concede liability in whole as to the amount claimed in such notice; (ii) deny liability in whole as to such amount; or (iii) concede liability in part and deny liability in part. In the event of any claim for indemnification under this Section 10.1 (Agreement resulting from or in connection with legal proceedings by a third party, such notice shall also specify, if known, the amount or an “Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) estimate of the commencement amount of any action, suit or proceeding relating the liability arising from such proceedings.
(b) The Indemnified Party shall have the right to a Third Party claim for which indemnification may be sought or, if earlier, upon control the assertion defense of any such claim by a Third claim. The Indemnifying Party shall have the right to participate, at its expense, in the defense of such claim. The Indemnified Party shall have sole discretion to determine whether to contest, compromise or settle any such claim, subject to the Indemnifying Party's prior approval of such contest, compromise or settlement, which will not be unreasonably withheld. If the Indemnifying Party does not approve of such settlement within ten (10) days of receipt of notice thereof, it being understood and agreedwill defend the claim; provided, however, that it must provide assurances to the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its ability to pay any indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result claim of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified PartyParty which could reasonably arise from such claim, assume control of the defense of such action, suit, proceeding or claim with counsel assurances to be in a form and amount reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of fails to provide such defenseassurances, the Indemnified Party shall control will be entitled to contest, settle or compromise such defense. The Party not controlling such defense may participate therein at claim in its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delaysole discretion. The Indemnifying Party shall cooperate and make available to the Indemnified Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Party. Any judgment entered or settlement agreed upon in the manner provided in this Section 7.4(b) shall be binding upon the Indemnifying Party and shall conclusively be deemed to be an obligation with respect to which the Indemnified Party is entitled to indemnification under this Article 7. If the Indemnified Party does not agreeelect to defend any such claim, then the Indemnifying Party shall be required to defend the same; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; and provided, further, that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances.
(c) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting from such claim in accordance with the terms of this Section 7.4, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of may defend against such action, suit, proceeding or claim or consent litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice of the same to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnifying Party, on such terms as the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on may deem appropriate. If the Indemnifying Party seeks to question the manner in which the Indemnified PartyParty defended such claim or litigation or the amount of or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend such claim in a reasonably prudent manner.
Appears in 1 contract
Claims for Indemnification. (a) All claims for indemnification made under this Section 8 resulting from, related to or arising out of any claim against a Purchaser shall be made in accordance with the following procedures. A Person entitled Purchaser, if seeking to assert rights to indemnification under this Section 10.1 (an “Indemnified Party”) 8 shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) Company of the commencement of any action, suit or proceeding relating to a Third Party third-party claim for which indemnification pursuant to this Section may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice)sought. Within [**] fifteen (15) days after delivery of such the notification, the Indemnifying Party Company may, upon written notice thereof to the Indemnified Partysuch Purchaser, assume control of the defense of the action, suit or proceeding with counsel reasonably satisfactory to such Purchaser; provided, however that (i) the Company may only assume control of the defense if it acknowledges in writing to such Purchaser that any damages, fines, costs or other liabilities that may be assessed against such Purchaser in connection with the action, suit or proceeding constitute Damages for which such Purchaser shall be entitled to indemnification pursuant to this Section 8, and (ii) the Company conducts the defense of the action, suit, proceeding or claim with counsel reasonably satisfactory in good faith and in commercially reasonable manner. The Company may not assume control of the defense of a suit or proceeding in which equitable relief is sought against a Purchaser; and a Purchaser shall be entitled to maintain its own defense at the expense of the Company if both the Company and the Purchaser are parties to the Indemnified Partysame action. If the Indemnifying Party Company does not assume control of such the defense, the Indemnified Party such Purchaser shall control such the defense. The Party party or parties not controlling such the defense may participate therein at its or their own expense; provided, however that if the Company assumes control of the defense and the Purchaser reasonably concludes that the Company and the Purchaser have conflicting interests or different defenses available with respect to the action, suit or proceeding, the reasonable fees and expenses of one counsel to such Purchaser shall be considered Damages for purposes of this Agreement. The Party party or parties controlling such the defense shall keep the other Party party or parties advised of the status of such the action, suit, suit or proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other Party party or parties with respect thereto. The Indemnified Party non-controlling party or parties shall furnish the controlling party or parties with the information as it may have with respect to the action, suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on the party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the controlling party or parties in the defense of the action, suit or proceeding. If the Company assumes control of the defense pursuant hereto, the relevant Purchaser shall not agree to any settlement of, or the entry of any judgment arising from, the action, suit or proceeding without the prior written consent of the Company, which shall not be unreasonably withheld or delayed. The Company shall not agree to any settlement of such or the entry of any judgment arising from the action, suit, suit or proceeding or claim without the prior written consent of the Indemnifying Partysuch Purchaser, which consent the Indemnifying Party shall not be unreasonably withholdwithheld or delayed.
(b) If a Purchaser wishes to assert a claim for indemnification under this Section 8, condition or delay. The Indemnifying Party such Purchaser shall not agreedeliver to the Company a written notice ("Claim Notice") which contains (i) a description and the amount (the "Claimed Amount") of any Damages incurred by such Purchaser, without the prior written consent (ii) a statement that such Purchaser is entitled to indemnification under this Section 8 and a reasonable explanation of the Indemnified Partybasis therefor, which consent and (iii) a demand for payment in the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release amount of the Indemnified Party from Damages. Within ten (10) days after delivery of a Claim Notice, the Company shall deliver to such Purchaser a written response (the "Response") in which the Company shall: (x) agree that such Purchaser is entitled to receive all liability with respect thereto of the Claimed Amount (in which case the Response shall be accompanied by a payment by the Company to such Purchaser of the Claimed Amount, by certified check or by wire transfer), (y) agree that imposes such Purchaser is entitled to receive part, but not all, of the Claimed Amount (the "Agreed Amount") (in which case the Response shall be accompanied by a payment by the Company to such Purchaser of the Agreed Amount, by check or by wire transfer), or (z) contest that such Purchaser is entitled to receive any liability of the Claimed Amount. If the Company in the Response contests the payment of all or obligation on part of the Indemnified PartyClaimed Amount, the Company and such Purchaser shall, during the 30-day period following the delivery of a Response that reflects a dispute, use good faith efforts to resolve the dispute. If the dispute is not resolved within the 30-day period, the Company and the Purchaser shall each have the right to commence litigation for purposes of resolving the dispute.
(c) Each Purchaser shall be entitled to be paid all amounts as to which it is entitled to indemnity as such Damages are incurred.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Thomas Group Inc)
Claims for Indemnification. A Person entitled (i) If at any time prior to the Survival Date, the IP Rep Survival Date or Fundamental Rep Survival Date, as applicable, Parent determines in good faith that any Indemnified Party has a bona fide claim for indemnification under pursuant to this Article VIII, Parent may deliver to the Stockholder Representative a certificate signed by a representative of Parent (any certificate delivered in accordance with the provisions of this Section 10.1 (8.3(e)(i), an “Indemnified PartyOfficer’s Claim Certificate”):
(A) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, stating that the failure by an Indemnified Party has a claim for indemnification pursuant to this Article VIII (or that with respect to any Tax matters, any Tax Authority has raised such Tax matter in audit of Parent or its subsidiaries (including the Surviving Corporation and its Subsidiaries), which could give notice rise to indemnifiable Losses);
(B) to the extent possible, contain a good faith non-binding, preliminary estimate of a Third the amount of all indemnifiable Losses to which such Indemnified Party claim claims to be entitled to receive under this Article VIII, which shall be the amount of Losses such Indemnified Party has so incurred or suffered or could reasonably be expected to incur or suffer in the future; and
(C) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnified Party giving rise to such claim. No delay or failure in providing such Officer’s Claim Certificate prior to the Survival Date, the IP Rep Survival Date or Fundamental Rep Survival Date, as provided in this Section 10.1(c) applicable, shall not relieve affect an Indemnified Party’s rights hereunder, unless the Indemnifying Party of its indemnification obligation under this Agreement except Parties demonstrate actual material damage caused by such delay or failure, and then only to the extent that such Indemnifying Party is actually damaged as thereof.
(ii) If the Stockholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Stockholder Representative shall deliver a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof (a “Claim Dispute Notice”) to Parent during the Indemnified Party, assume control 30-day period commencing upon receipt by the Stockholder Representative of the defense Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of such action, suit, proceeding or any claim with counsel reasonably satisfactory to made by Parent in the Indemnified PartyOfficer’s Claim Certificate. If the Indemnifying Party Stockholder Representative does not assume control deliver a Claim Dispute Notice to Parent prior to the expiration of such defense30-day period, then each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article VIII on the Indemnified Party terms set forth in the Officer’s Claim Certificate.
(iii) If the Stockholder Representative delivers a Claim Dispute Notice, then Parent and the Stockholder Representative shall control attempt in good faith to resolve any such defenseobjections raised by the Stockholder Representative in such Claim Dispute Notice. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep If Parent and the other Party advised of the status Stockholder Representative agree to a resolution of such actionobjection, suit, proceeding or claim then a memorandum setting forth the matters conclusively determined by Parent and the defense thereof Stockholder Representative shall be prepared and shall consider recommendations made signed by both parties.
(iv) If no such resolution can be reached during the other Party with respect thereto. The Indemnified Party shall not agree to any settlement 45-day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such action45-day period, suit, proceeding either Parent or claim without the prior written consent of Stockholder Representative may bring suit to resolve the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment objection in respect thereof that does not include a complete accordance with Sections 10.10 and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party10.12.
Appears in 1 contract
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under this Section 10.1 9.2, Purchaser or Oak Tree shall promptly notify in writing the Stockholder Representative of the claim and, when known, the facts constituting the basis for such claim. In the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceeding by a person who is not a party to this Agreement ("Third Party Claim"), such notice shall also specify, if known, the amount or an “Indemnified Party”) estimate of the amount of the liability arising therefrom. Neither Oak Tree nor Purchaser shall incur any expenses, or settle or compromise or enter into any binding agreement to settle or compromise, or consent to entry of any judgment arising from, any such claim or proceeding except in accordance with this Section 9.2. Purchaser will give the Stockholder Representative prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 notice of any such claim by a and, with respect to any Third Party (it being understood and agreedClaim, however, that the failure Stockholders will undertake the defense thereof by an Indemnified Party representatives of their own choosing reasonably satisfactory to give notice Purchaser. Purchaser shall have the right to participate in any such defense of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party Claim with advisory counsel of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein own choosing at its own expense. The In the event the Stockholders, within a reasonable time after notice of any such Third Party controlling such defense shall keep Claim, fails to defend, Purchaser or any parent, subsidiary or affiliate of Purchaser will have the other Party advised of right to undertake the status of such actiondefense, suit, proceeding compromise or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such actionThird Party Claim on behalf of, suitand for the account of, proceeding or claim without the prior written consent Stockholders, at the expense and risk of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delayStockholders. The Indemnifying Party Stockholders shall not agreenot, without Purchaser's written consent, settle or compromise any such Third Party Claim or consent to entry of any judgment which does not include as an unconditional term thereof the prior written consent giving by the claimant or the plaintiff to Purchaser and/or Purchaser's parent, subsidiary or subsidiaries, or affiliate or affiliates, as the case may be, an unconditional release from all liability in respect of such Third Party Claim. The Purchaser and Oak Tree will cooperate with the Indemnified Party, which consent Stockholders in connection with the Indemnified Party shall not unreasonably withhold, condition defense or delay, to any settlement of such actionThird Party Claim. Notwithstanding the foregoing, suit, proceeding or claim or consent the Stockholders shall have the right to dispute the issue of whether it is obligated hereunder to indemnify Purchaser with respect to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified particular Third Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClaim.
Appears in 1 contract
Samples: Stock Purchase Agreement (Oak Tree Medical Systems Inc)
Claims for Indemnification. A Person entitled The following procedures shall apply if a claimed breach or other occurrence or matter giving rise to a claim of indemnification under this Section 10.1 is given by the party seeking indemnification (an “Indemnified Party”the "INDEMNIFIED PARTY") shall give prompt written notification to the Party party from whom indemnification is sought (the “Indemnifying Party”"INDEMNIFYING PARTY"):
(i) of the commencement of any action, suit or proceeding relating Procedure for Indemnification with Respect to a Third Party claim for which Claims. If the Indemnified Party seeks indemnification under this Article 16 with respect to an Existing Limited Partner Indemnification Obligation, an Existing General Partner Indemnification Obligation, or an AERC Indemnification Obligation, as the case may be sought or(collectively, if earlieran "INDEMNIFIABLE CLAIM"), upon resulting from the assertion of liability by any third party (i.e., a person not a Party), it shall give notice to the Indemnifying Party after it becomes aware of any such claim by a Third Party Indemnifiable Claim (it being understood and agreedsuch notice to be given in any event within the shorter of 15 days or the number of days necessary to respond to the Indemnifiable Claim), however, that which notice shall set forth such material information with respect to such Indemnifiable Claim as is then reasonably available to the failure by an Indemnified Party. If any such liability is asserted against the Indemnified Party to give notice of a Third and the Indemnified Party claim as provided in this Section 10.1(c) shall not relieve notifies the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notificationliability, the Indemnifying Party mayshall be entitled, upon if it so elects by written notice thereof delivered to the Indemnified Party within 10 days after receiving the Indemnified Party's notice, to assume control of the defense of such action, suit, proceeding or claim asserted liability with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If Notwithstanding the Indemnifying Party does not assume control of such defense, foregoing: (a) the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at have the right to employ its own expense. The Party controlling counsel in any such defense shall keep case, but the other Party advised of the status fees and expenses of such action, suit, proceeding or claim and the defense thereof and counsel shall consider recommendations made be payable by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent ; (b) the Indemnified Party shall not unreasonably withholdhave any obligation to give any notice of any assertion of liability by a third party unless such assertion is in writing; and (c) the rights of the Indemnified Party to be indemnified in respect of Indemnifiable Claims resulting from the assertion of liability by third parties shall not be adversely affected by its failure to give notice pursuant to the foregoing provisions unless, condition or delayand, if so, only to the extent that, the Indemnifying Party is materially prejudiced by such failure. With respect to any settlement assertion of such actionliability by a third party that results in an Indemnifiable Claim, suit, proceeding or claim the Parties shall make available to each other all relevant information in their possession which is material to any 44
(A) any Indemnifiable Claim or consent to entry of any judgment in respect thereof that does not include a complete and of any Indemnifiable Claim, in each case involving money damages or other money payments, unless such settlement, compromise or consent includes as an unconditional release of term the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability with in respect thereto of such Indemnifiable Claim or that imposes (B) any liability or obligation on the Indemnified PartyNon-monetary Indemnifiable Claim.
Appears in 1 contract
Samples: Contribution and Partnership Interest Purchase Agreement (Associated Estates Realty Corp)
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under this Section 10.1 (9.3, Stockholder Representative shall promptly notify in writing the Purchaser and Oak Tree of the claim and, when known, the facts constituting the basis for such claim. In the event of any Third Party Claim, such notice shall also specify, if known, the amount or an “Indemnified Party”) estimate of the amount of the liability arising therefrom. No Stockholder shall incur any expenses, or settle or compromise or enter into any binding agreement to settle or compromise, or consent to entry of any judgment arising from, any such claim or proceeding except in accordance with this Section 9.3. The Stockholder Representative will give Purchaser and Oak Tree prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 notice of any such claim by a and, with respect to any Third Party (it being understood and agreedClaim, however, that Purchaser or Oak Tree will undertake the failure defense thereof by an Indemnified Party representatives of its own choosing reasonably satisfactory to give notice the Stockholder Representative. The Stockholders shall have the right to participate in any such defense of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party Claim with advisory counsel of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein own choosing at its own expense. The In the event Purchaser or Oak Tree, within a reasonable time after notice of any such Third Party controlling such defense shall keep Claim, fails to defend, the other Party advised of Stockholders will have the status of such actionright to undertake the defense, suit, proceeding compromise or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such actionThird Party Claim on behalf of, suitand for the account of, proceeding or claim Purchaser and Oak Tree, at the expense and risk of Purchaser and Oak Tree. Purchaser and Oak Tree shall not, without the prior written consent of the Indemnifying PartyStockholder Representative, settle or compromise any such Third Party Claim or consent to entry of any judgment which consent does not include as an unconditional term thereof the Indemnifying giving by the claimant or the plaintiff to the Stockholder Representative, an unconditional release from all liability in respect of such Third Party shall not unreasonably withhold, condition or delayClaim. The Indemnifying Party shall not agree, without Stockholders will cooperate with Oak Tree and the prior written consent Purchaser in connection with the defense of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such actionThird Party Claim. Notwithstanding the foregoing, suit, proceeding or claim or consent Purchaser and Oak Tree shall have the right to dispute the issue of whether it is obligated hereunder to indemnify the Stockholders with respect to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified particular Third Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClaim.
Appears in 1 contract
Samples: Stock Purchase Agreement (Oak Tree Medical Systems Inc)
Claims for Indemnification. A Person entitled (a) Subject to Section 8.1, whenever any claim arises for indemnification under this Section 10.1 hereunder the party seeking indemnification (an the “Indemnified Party”) shall give prompt written notification to ), will promptly notify the Party party from whom indemnification is sought (the “”Indemnifying Party”) of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon such claim. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a ”Third Party (it being understood and agreedClaim”), however, that the failure by an Indemnified Party notice to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party will specify with reasonable specificity, if known, the basis under which the right to indemnification is being asserted and the amount or an estimate of its indemnification obligation under this Agreement except and only to the extent that such amount of the liability arising therefrom. The Indemnifying Party is actually damaged as a result shall have the right to dispute and defend all Third Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Indemnifying Party, and the cost of such failure defense shall be borne by the Indemnifying Party, except that the Indemnified Party shall have the right to give notice). Within [**] days after delivery of participate in such notificationdefense at its own expense, and provided, however that the Indemnifying Party maymust first acknowledge that the claim is a bona fide indemnification claim under this Agreement. The Indemnified Party shall cooperate in all reasonable respects in the investigation, upon written notice thereof trial and defense of any such claim, including making personnel, books, and records relevant to the Indemnified claim available to the Indemnifying Party, assume control of the defense of such actionwithout charge, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Partyexcept for reasonable out-of-pocket expenses. If the Indemnifying Party does not assume control of such defensefails to take action within thirty (30) days as set forth above, then the Indemnified Party shall control such defense. The have the right to pay, compromise or defend any Third Party not controlling such Claim and to assert the amount of any payment on the Third Party Claim plus the reasonable expenses of defense may participate therein at its own expense. The Party controlling such defense shall keep or settlement as 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 theretoclaim. The Indemnified Party shall not agree also have the right and upon delivery of advance written notice to such effect to the Indemnifying Party, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default prior to the assumption of the defense of the Third Party Claim by the Indemnifying Party, and any settlement of such actionreasonable expenses incurred by Indemnified Party so acting shall be paid by the Indemnifying Party. Except as otherwise provided herein, suitthe Indemnified Party will not, proceeding except at its own cost and expense, settle or claim compromise any Third Party Claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. The parties intend that all indemnification claims be made as promptly as practicable.
(b) If the Indemnifying Party shall is of the opinion that the Indemnified Party is not unreasonably withholdentitled to indemnification, condition or delay. The is not entitled to indemnification in the amount claimed in such notice, the Indemnifying Party shall will deliver, within ten (10) business days after the receipt of such notice, a written objection to such claim and written specifications in reasonable detail of the aspects or details objected to, and the grounds for such objection. If the Indemnifying Party filed timely written notice of objection to any claim for indemnification, the validity and amount of such claim will be determined by arbitration pursuant to Article IX. If timely notice of objection is not agreedelivered or if a claim by an Indemnified Party is admitted in writing by an Indemnifying Party or if an arbitration award is made in favor of an Indemnified Party, without the prior written consent of the Indemnified Party, which consent as a non-exclusive remedy, will have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Indemnified Party shall not unreasonably withhold, condition or delay, any subsidiary thereof to any settlement Indemnifying Party by reason of such action, suit, proceeding this Agreement or claim any agreement or consent arrangement or contract to any judgment in respect thereof that does not include a complete and unconditional release of be entered into at the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClosing.
Appears in 1 contract
Claims for Indemnification. A Person entitled to (a) Whenever any claim shall arise for indemnification under this Section 10.1 Article XII, the party asserting the claim for indemnification (an “the Indemnified Party”Party ) shall give prompt promptly describe such claim in a written notification notice ( Notice of Claim ) to the Party party from whom which indemnification is sought (the “Indemnifying Party ) and, when known, specify the facts constituting the basis for such claim and the amount or an estimate of the amount of such claim. Each Notice of Claim shall (A) be signed by a proper representative of the Indemnified Party, (B) contain a description of the claim, (C) specify the amount of such claim, and (D) state that, in the opinion of the signer thereof, such Notice of Claim is valid under the terms of this Article XII and is being given by the Indemnified Party in good faith.
(i) Without limiting the foregoing, the Indemnified Party shall give the Indemnifying Party prompt notice of any claim for indemnification hereunder resulting from, or in connection with, any claim or legal proceeding by a person who is not a party to this Agreement ( Third Party Claim ) and, with respect to any Third Party Claim, the Indemnifying Party shall at its election, undertake and control the defense thereof by representatives reasonably satisfactory to the Indemnified Party and the Indemnifying Party”) of . However, the commencement of any action, suit or proceeding relating Indemnified Party shall have the right to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of participate in any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice defense of a Third Party claim as provided in this Section 10.1(c) Claim with advisory counsel of its own choosing at its own expense. In the event the Indemnifying Party, within a reasonable time after notice of any Third Party Claim, fails to defend, the Indemnified Party shall not relieve have the right diligently to undertake the defense, compromise or settlement of such Third Party Claim on behalf of, and for the account of, the Indemnifying Party, at the expense and risk of the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice)its liability set forth in Article XII. Within [**] days after delivery of such notificationThe Indemnified Party, without the Indemnifying Party mays written consent, upon written notice thereof shall not settle or compromise any such Third Party Claim or consent to entry of any judgment; the Indemnifying Party s consent shall be conditioned, among other matters, on the giving by the claimant or the plaintiff to the Indemnified Party, assume control an unconditional release from all liability in respect of such Third Party Claim. Notwithstanding any provision herein to the contrary, failure of the defense Indemnified Party to give any notice of such action, suit, proceeding or claim with counsel reasonably satisfactory to any Third Party Claim required by this Article XII shall not constitute a waiver of the Indemnified Party. If Party s right to indemnification or a defense to any claim by the Indemnified Party hereunder unless the Indemnifying Party does not assume control of is materially adversely affected by such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of failure.
(ii) the Indemnifying Party, which consent without the Indemnified Party s written consent, shall not settle or compromise any Third Party Claim against the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to the entry of any judgment in respect thereof that does not include a complete and as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnifying Party an unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partyto such Third Party Claim.
Appears in 1 contract
Samples: Asset Purchase and Services Agreement (Sento Technical Innovations Corp)
Claims for Indemnification. 9.3.1 A Person entitled to Party seeking indemnification under this Section 10.1 Article 9 (an “Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) of the commencement of any action, suit or proceeding relating to a Third Party claim Action for which indemnification may be sought or, if earlier, upon the assertion of any such claim Action by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim an Action as provided in this Section 10.1(c) 9.3.1 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement Agreement, except and only to the extent that such Indemnifying Party is actually damaged prejudiced as a result of such failure to give notice). .
9.3.2 Within [****] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with Action using counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The assumption of a defense by the Indemnifying Party shall not be deemed an admission that the Indemnifying Party has an obligation to defend, indemnify or hold harmless an Indemnified Party from and against any Losses from an Action. If the Indemnifying Party assumes and conducts the defense of an Action as provided above, and if it is ultimately determined pursuant to Section 12.7 that the Indemnifying Party was not obligated to indemnify, defend, or hold harmless an Indemnified Party from and against any Losses from such Action, the Indemnified Party shall reimburse the Indemnifying Party for any and all reasonable and verifiable out-of-pocket costs and expenses (including reasonable attorneys’ and experts’ fees and costs and expenses) incurred by the Indemnifying Party in connection with defending such Action and all other Losses paid by the Indemnifying Party on behalf of the Indemnified Party in connection with such Action.
9.3.3 The Party not controlling such defense may participate therein at its own expense. ; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees, costs and expenses of counsel to the Indemnified Party solely in connection therewith; provided, further, however, that in no event shall the Indemnifying Party be responsible for the fees, costs and expenses of more than one counsel in any one jurisdiction for all Indemnified Parties.
9.3.4 The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim Action and the defense thereof and shall consider in good faith recommendations made by the other Party with respect thereto.
9.3.5 The Indemnifying Party shall not settle or compromise any such Action or consent to any judgment in respect thereof without the prior written consent of the Indemnified Party, not to be unreasonably withheld, conditioned or delayed; provided, however, that the Indemnifying Party shall not be required to obtain such consent if the settlement (a) involves only the payment of money and will not result in the Indemnified Party (or other Evaxion Indemnified Parties or MSD Indemnified Parties, as applicable) becoming subject to injunctive or other similar type of relief or additional non-monetary obligations, (b) includes a complete and unconditional release of the Indemnified Party (and the other MSD Indemnified Parties or Evaxion Indemnified Parties, as applicable) from all liability with respect thereto and does not require an admission by the Indemnified Party (or other Evaxion Indemnified Parties or MSD Indemnified Parties, as applicable), and (c) does not adversely affect the rights or licenses granted to the Indemnified Party (or its Affiliate) under this Agreement. The Indemnified Party shall not agree settle or compromise any such Action or consent to any settlement of such action, suit, proceeding or claim judgment in respect thereof without the prior written consent of the Indemnifying Party, which consent it may provide in its sole discretion.
9.3.6 If the Indemnifying Party chooses to defend any Action, the Indemnified Party shall cooperate in the defense thereof and shall furnish such records, information and testimony, provide such witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Action and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent reimburse the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment for all its reasonable and verifiable out-of-pocket costs and expenses in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partyconnection therewith.
Appears in 1 contract
Claims for Indemnification. A Person entitled In the event of the -------------------------- occurrence of any event which any party asserts is an indemnifiable event pursuant to this Article VI, the party claiming indemnification under this Section 10.1 (an “the "Indemnified Party”") shall give provide prompt written notification notice to the Party from whom indemnification is sought indemnifying party (the “"Indemnifying Party”) of "), specifying in detail the commencement of any action, suit or proceeding relating facts and circumstances with respect to a Third Party such claim and the basis for which indemnification may be sought or, if earlier, upon is available hereunder. If such event involves the assertion claim of any third party the Indemnifying Party shall have the right to control the defense or settlement of such claim by a Third Party (it being understood and agreedclaim, provided, however, that (a) the failure by an Indemnified Party shall be entitled to give participate in the defense of such claim at its own expense, (b) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party (which approval shall not be unreasonably withheld or delayed) before entering into any settlement of such claim if, pursuant to or as a result of such settlement, injunctive or other non-monetary relief would be imposed against the Indemnified Party, (c) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, and shall assume all expense with respect to the defense or settlement of any claim to the extent such claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets or condition (financial or otherwise) of the Indemnified Party, provided that the Indemnified Party shall provide written notice to the Indemnifying Party of its election to assume control over the defense of such claim pursuant to this Section 6.04, and (d) if the Indemnifying Party is entitled but fails to assume control over the defense of a Third Party claim as provided in this Section 10.1(c) 6.04, provided that the Damages associated with such claim are covered by the indemnity provisions of Section 6.02 or 6.03 (as applicable), the Indemnified Party shall not relieve have the right to defend such claim, provided further that the Indemnified Party shall obtain the prior written approval of the Indemnifying Party (which approval shall not be unreasonably withheld or delayed) before entering into any settlement of its indemnification obligation under this Agreement except and only such claim if, pursuant to the extent that such Indemnifying Party is actually damaged or as a result of such failure settlement, injunctive or other non-monetary relief would be imposed against the Indemnifying Party. In the event that the Indemnifying Party shall be obligated to give notice). Within [**] days after delivery of such notificationindemnify the Indemnified Party pursuant to this Article VI, the Indemnifying Party mayshall, upon written notice thereof to the Indemnified Party, assume control of the defense payment of such actionindemnity in full, suit, proceeding or claim with counsel reasonably satisfactory be subrogated to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release all rights of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on to the Indemnified Partyclaim to which such indemnification relates.
Appears in 1 contract
Claims for Indemnification. A Person entitled to The procedures for indemnification under this Section 10.1 Agreement are as follows:
(an a) The Indemnified Party seeking indemnification hereunder (a “Indemnified PartyClaimant”) shall will promptly give prompt written notification notice to the Party Parties from whom which indemnification is sought claimed (the “Indemnifying Party”) of any demand, suit, assertion of liability or claim. If the commencement of any claim relates to an action, suit or proceeding relating to filed by another Person against the Claimant (a “Third Party Claim”), then such notice will be given by the Claimant within twenty (20) Business Days after written notice of such action, suit or proceeding is given to the Claimant and will include true, correct and complete copies of all suit, service and claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreeddocuments; provided, however, that the failure by an Indemnified Party or delay of the Claimant to give provide any such notice of a Third Party claim as provided in this Section 10.1(c) shall or deliver such copies will not relieve release the Indemnifying Party from any of its indemnification obligation obligations under this Agreement except Article VII unless (and only then solely to the extent that such that) the Indemnifying Party is actually damaged as materially prejudiced thereby.
(b) With respect to claims solely between the Parties, following receipt of notice from the Claimant of a result of such failure to give notice). Within [**] days after delivery of such notificationclaim, the Indemnifying Party maywill have forty-five (45) days to make such investigation of the claim as the Indemnifying Party reasonably deems necessary or desirable, upon written notice thereof and the Claimant agrees to make available to the Indemnified PartyIndemnifying Party and its authorized representatives all information relevant and necessary to substantiate the claim, except to the extent any attorney-client privilege would thereby be violated. If the Claimant and the Indemnifying Party agree at or prior to the expiration of such forty-five (45)-day period to the validity and amount of such claim, then the Indemnifying Party will promptly pay to the Claimant the full amount of the claim, subject to the terms and limitations hereof. If the Claimant and the Indemnifying Party do not reach any such agreement within such forty-five (45)-day period, then the Claimant may seek an appropriate remedy at law or in equity, as applicable, subject to the terms and limitations hereof.
(c) With respect to any Third Party Claim, if (i) the Third Party Claim seeks solely monetary damages, (ii) the Indemnifying Party confirms, in writing, its obligation to indemnify and hold the Claimant harmless with respect to such Losses, (iii) the Indemnifying Party reasonably demonstrates that it has the financial resources necessary to defend the matter and fulfill its indemnity obligation, (iv) settlement of, or consent to entry of judgment with respect to, the Third Party Claim is not likely to establish a precedent materially adverse to the Claimant, and (v) the Indemnifying Party covenants to and will defend the Third Party Claim actively, diligently and in good faith, then the Indemnifying Party will, subject to the rights of or duties to any insurer or other third Person having liability therefor, be entitled to, and the Claimant will provide the Indemnifying Party with the right to be exercised within thirty (30) days after receipt of such notice to, assume and maintain control of the defense and settlement of such action, suit, proceeding or claim Third Party Claim (with counsel reasonably satisfactory to the Indemnified Claimant, which counsel will be at the sole expense of the Indemnifying Party); provided, however, that, if the Indemnifying Party will have exercised such right to assume such control, then the Claimant will be entitled to participate in the defense, compromise or settlement of such Third Party Claim and to employ counsel at its own expense to assist in the handling of such Third Party Claim and, in such event, counsel selected by the Indemnifying Party (and reasonably acceptable to the Claimant) will be required to reasonably cooperate with such counsel of the Claimant in such defense, compromise or settlement. If the Indemnifying Party does not assume control the defense of the Third Party Claim, does not comply with the foregoing provisions of this Section 7.4(c), or is not entitled to assume such defense, then the Indemnified Party shall Claimant will be entitled to assume and control such defense. The defense and to settle or agree to pay in full such Third Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep Claim without the other Party advised consent of the status Indemnifying Party without prejudice to the ability of the Claimant to enforce its claim for indemnification against the Indemnifying Party hereunder. So long as the Indemnifying Party that is permitted and has assumed such control and defense is defending actively, diligently and in good faith any such Third Party Claim against the Claimant, and otherwise complying with the terms of this Section 7.4(c), the Claimant will not settle or compromise such claim or demand. If the Indemnifying Party is permitted and has assumed and is diligently maintaining the defense of any such claim or demand as set forth above, then it will have the power and authority to settle or consent to the entry of judgment of such action, suit, proceeding Third Party Claim without the consent of the Claimant only if the judgment or claim and settlement results solely in the defense thereof and shall consider recommendations made payment by the Indemnifying Party of the full amount of money damages and includes a full and complete release of the Claimant from any and all liability thereunder; provided, that the Indemnifying Party will have made arrangements for the payment of all such damages in a manner reasonably satisfactory to the Claimant. In all other events, the Indemnifying Party with respect thereto. The Indemnified Party shall will not agree consent to the entry of judgment or enter into any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClaimant.
Appears in 1 contract
Claims for Indemnification. A Person entitled (a) Subject to Section 8.1, whenever any claim arises for indemnification under this Section 10.1 hereunder the party seeking indemnification (an “the "Indemnified Party”) shall give prompt written notification to "), will promptly notify the Party party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of claim and, when known, the facts constituting the basis for such claim. In the event that the Shareholders are seeking indemnification as the Indemnified Party hereunder, or indemnification is sought against the Shareholders as an Indemnifying Party hereunder, then in either such case, the Shareholders' Representative shall be entitled to act on behalf of, and receive notice on behalf of, the Shareholders for any action, suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon and all purposes stated therein. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a "Third Party (it being understood and agreedClaim"), however, that the failure by an Indemnified Party notice to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party will specify with reasonable specificity, if known, the basis under which the right to indemnification is being asserted and the amount or an estimate of its indemnification obligation under this Agreement except and only to the extent that such amount of the liability arising therefrom. The Indemnifying Party is actually damaged as a result shall have the right to dispute and defend all Third Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Indemnifying Party, and the cost of such failure defense shall be borne by the Indemnifying Party, except that the Indemnified Party shall have the right to give notice). Within [**] days after delivery of participate in such notificationdefense at its own expense, and provided, however that the Indemnifying Party maymust first acknowledge that the claim is a bona fide indemnification claim under this Agreement. The Indemnified Party shall cooperate in all reasonable respects in the investigation, upon written notice thereof trial and defense of any such claim, including making personnel, books, and records relevant to the Indemnified claim available to the Indemnifying Party, assume control of the defense of such actionwithout charge, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Partyexcept for reasonable out-of-pocket expenses. If the Indemnifying Party does not assume control of such defensefails to take action within thirty (30) days as set forth above, then the Indemnified Party shall control such defense. The have the right to pay, compromise or defend any Third Party not controlling such Claim and to assert the amount of any payment on the Third Party Claim plus the reasonable expenses of defense may participate therein at its own expense. The Party controlling such defense shall keep or settlement as 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 theretoclaim. The Indemnified Party shall not agree also have the right and upon delivery of advance written notice to such effect to the Indemnifying Party, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default prior to the assumption of the defense of the Third Party Claim by the Indemnifying Party, and any settlement of such actionreasonable expenses incurred by Indemnified Party so acting shall be paid by the Indemnifying Party. Except as otherwise provided herein, suitthe Indemnified Party will not, proceeding except at its own cost and expense, settle or claim compromise any Third Party Claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. The parties intend that all indemnification claims be made as promptly as practicable.
(b) If the Indemnifying Party shall is of the opinion that the Indemnified Party is not unreasonably withholdentitled to indemnification, condition or delay. The is not entitled to indemnification in the amount claimed in such notice, the Indemnifying Party shall will deliver, within ten (10) business days after the receipt of such notice, a written objection to such claim and written specifications in reasonable detail of the aspects or details objected to, and the grounds for such objection. If the Indemnifying Party filed timely written notice of objection to any claim for indemnification, the validity and amount of such claim will be determined by arbitration pursuant to Article 9. If timely notice of objection is not agreedelivered or if a claim by an Indemnified Party is admitted in writing by an Indemnifying Party or if an arbitration award is made in favor of an Indemnified Party, without the prior written consent of the Indemnified Party, which consent as a non-exclusive remedy, will have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Indemnified Party shall not unreasonably withhold, condition or delay, any subsidiary thereof to any settlement Indemnifying Party by reason of such action, suit, proceeding this Agreement or claim any agreement or consent arrangement or contract to any judgment in respect thereof that does not include a complete and unconditional release of be entered into at the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClosing.
Appears in 1 contract
Samples: Merger Agreement (American Medical Systems Holdings Inc)
Claims for Indemnification. A Person entitled (a) Subject to Section 9.1, whenever any claim arises for indemnification under this Section 10.1 hereunder the party seeking indemnification (an “the "Indemnified Party”"), will promptly notify in writing (the "Indemnification Notice") shall give prompt written notification to the Party party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement claim and, when known, the facts constituting the basis for such claim; provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party, except to the extent the rights of the Indemnifying Party are materially prejudiced. In the event that the Stockholders are seeking indemnification as the Indemnified Party hereunder, or indemnification is sought against the Stockholders as an Indemnifying Party hereunder, then in either such case, the Stockholder Representative shall be entitled to act on behalf of, and receive notice on behalf of, the Stockholders for any action, suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon and all purposes stated therein. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a "Third Party (it Claim"), the notice to the Indemnifying Party will specify with reasonable specificity, if known, the basis under which the right to indemnification is being understood asserted and agreedthe amount or an estimate of the amount of the liability arising therefrom. The Indemnifying Party shall have the right to dispute and defend all Third Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Indemnifying Party, and the cost of such defense shall be borne by the Indemnifying Party, except that the Indemnified Party shall have the right to participate in such defense at its own expense; provided, however, that the failure by an Indemnifying Party must first acknowledge that the claim is a bona fide indemnification claim under this Agreement. The Indemnified Party shall cooperate in all reasonable respects in the investigation, trial and defense of any such claim, including making personnel, books, and records relevant to give notice of a Third Party the claim as provided in this Section 10.1(c) shall not relieve available to the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such actionwithout charge, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Partyexcept for reasonable out-of-pocket expenses. If the Indemnifying Party does not assume control of such defensefails to take action within thirty (30) days as set forth above, then the Indemnified Party shall control such defense. The have the right to pay, compromise or defend any Third Party not controlling such Claim and to assert the amount of any payment on the Third Party Claim plus the reasonable expenses of defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised or settlement 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 theretoclaim. The Indemnified Party shall not agree also have the right and upon delivery of advance written notice to such effect to the Indemnifying Party, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default judgment prior to the assumption of the defense of the Third Party Claim by the Indemnifying Party, and any settlement of such actionreasonable expenses incurred by Indemnified Party so acting shall be paid by the Indemnifying Party. Except as otherwise provided herein, suitthe Indemnified Party will not, proceeding except at its own cost and expense, settle or claim compromise any Third Party Claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. The parties intend that all indemnification claims be made as promptly as practicable.
(b) If the Indemnifying Party shall is of the opinion that the Indemnified Party is not unreasonably withholdentitled to indemnification, condition or delay. The is not entitled to indemnification in the amount claimed in the Indemnification Notice, the Indemnifying Party shall will deliver, within ten (10) business days after the receipt of the Indemnification Notice, a written objection to such claim which will include, to the extent actually known to the Indemnifying Party: (i) specifications in reasonable detail of the aspects or details objected to, and (ii) the grounds for such objection. If the Indemnifying Party files timely written notice of objection to any claim for indemnification, the validity and amount of such claim will be determined by arbitration pursuant to Article 10. If timely notice of objection is not agreedelivered or if a claim by an Indemnified Party is expressly admitted in writing by an Indemnifying Party or if an arbitration award is made in favor of an Indemnified Party, without the prior written consent of the Indemnified Party, which consent as a non-exclusive remedy, will have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Indemnified Party shall not unreasonably withhold, condition or delay, any subsidiary thereof to any settlement Indemnifying Party by reason of such action, suit, proceeding this Agreement or claim any agreement or consent arrangement or contract to any judgment in respect thereof that does not include a complete and unconditional release of be entered into at the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClosing.
Appears in 1 contract
Claims for Indemnification. (a) A Person entitled Party entitled, or seeking to assert rights, to indemnification under this Article IV (which, in the case of a claim by the Principal Stockholders, shall be deemed, solely for the purposes of this Section 10.1 4.3, to be the Stockholder Representative) (an “Indemnified Party”"INDEMNIFIED PARTY") shall give prompt written notification to the Party from whom indemnification is sought (which, in the “Indemnifying Party”case of a claim by the Buyer, shall be deemed, solely for the purposes of this Section 4.3, to be the Stockholder Representative) (the "INDEMNIFYING PARTY") of the commencement of any action, suit or proceeding relating to a Third Party third-party claim for which indemnification pursuant to this Article IV may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice)sought. Within [**] 15 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, suit or proceeding or claim with counsel reasonably satisfactory to the Indemnified Party, provided that (i) the Indemnifying Party may only assume control of such defense if it acknowledges in writing to the Indemnified Party that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Party in connection with such action, suit or proceeding constitute Damages for which the Indemnified Party shall be entitled to indemnification pursuant to this Article IV, (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding in which equitable relief is sought against the Indemnified Party and (iii) the Indemnifying Party may not assume control of the defense of a suit or proceeding in which the amount of Damages sought exceeds the maximum amount recoverable by the Indemnified Party from the Indemnifying Party pursuant to the limitations contained in Section 4.6(a) or 4.6(d) by more than 125%. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party or Parties not controlling such defense may participate therein at its or their own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of one counsel to the Indemnified Party in each jurisdiction shall be considered "Damages" for purposes of this Agreement. The Party or Parties controlling such defense shall keep the other Party or Parties advised of the status of such action, suit, suit or proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other Party or Parties with respect thereto. The non-controlling party shall furnish the controlling party with such information as it may have with respect to such action, suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the controlling party in the defense of such action, suit or proceeding. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, such action, suit, suit or proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition withheld or delaydelayed. The Indemnifying Party shall not agreeagree to any settlement of, or the entry of any judgment arising from, such action, suit or proceeding without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed.
(b) In order to seek indemnification under this Article IV or Section 6.2, an Indemnified Party shall give written notification (a "CLAIM NOTICE") to the Indemnifying Party which contains (i) a description and the amount (the "CLAIMED AMOUNT") of any Damages incurred or reasonably expected to be incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Article IV or Section 6.2 for such Damages and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such Damages. Within twenty days after delivery of a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (i) agree that the Indemnified Party is entitled to receive all of the Claimed Amount (in which case, (i) if the Indemnifying Party is the Buyer and the Indemnified Party is one or more Stockholders, such response shall be accompanied by a copy of irrevocable instructions issued by the Buyer to its transfer agent to promptly issue to the Stockholders who are Indemnified Parties shares of Buyer Common Stock having an aggregate Value (as defined in Section 4.4) equal to the Claimed Amount or (2) if the Indemnifying Party is a Principal Stockholder and the Indemnified Party is the Buyer, such response shall be accompanied by a copy of irrevocable instructions issued by the Stockholder Representative to the Escrow Agent, instructing the Escrow Agent to distribute to the Buyer such number of Escrow Shares as have an aggregate Value equal to the Claimed Amount), (ii) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the "AGREED AMOUNT") (in which case, (i) if the Indemnifying Party is the Buyer and the Indemnified Party is one more Stockholders, such response shall be accompanied by a copy of irrevocable instructions issued by the Buyer to its transfer agent to promptly issue to the Stockholders who are Indemnified Parties shares of Buyer Common Stock having an aggregate Value equal to the Agreed Amount or (2) if the Indemnifying Party is a Principal Stockholder and if the Indemnified Party is the Buyer, such response shall be accompanied by a copy of irrevocable instructions issued by the Stockholder Representative to the Escrow Agent instructing the Escrow Agent to distribute to the Buyer such number of Escrow Shares as have an aggregate Value equal to the Agreed Amount) or (iii) dispute that the Indemnified Party is entitled to receive any of the Claimed Amount. If the Indemnifying Party in such response disputes its liability for all or part of the Claimed Amount, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. If such dispute is not unreasonably withhold, condition or delay, to any settlement resolved within 60 days following the delivery by the Indemnifying Party of such actionresponse, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete the Indemnifying Party and unconditional release of the Indemnified Party shall have the right, after first complying with the requirements of Section 7.9, to commence litigation for purposes of resolving such dispute.
(c) Notwithstanding the other provisions of Section 4.3, if a third party asserts (other than by means of a lawsuit) that the Buyer or the Company is liable to it for a monetary or other obligation which may constitute or result in Damages for which the Buyer or the Company may be entitled to indemnification pursuant to this Article IV, and the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (i) the Buyer shall be entitled to satisfy such obligation, without prior notice to or consent from all liability the Principal Stockholders, (ii) the Buyer may subsequently make a claim for indemnification pursuant to this Article IV in accordance with the provisions of this Section 4.3, and (iii) the Buyer or the Company shall be reimbursed, in accordance with the provisions of this Section 4.3, for any such Damages for which it is entitled to indemnification pursuant to this Article IV (subject to the right of the Principal Stockholders to dispute, in the manner set forth in this Section 4.3, the Buyer's entitlement to indemnification or the amount for which it is entitled to indemnification).
(d) Each Principal Stockholder hereby irrevocably appoints Andrxx Xxxxxx xx his or her Stockholder Representative to serve as such Principal Stockholder's representative and attorney-in-fact with respect thereto to any actions and decisions required or that imposes permitted to be made under this Article IV or Section 6.2 and agrees to be bound by any actions or decisions taken by the Stockholder Representative with respect thereto. The Stockholder Representative shall have full power and authority on behalf of each Principal Stockholder to take any and all actions on behalf of, execute any and all instructions on behalf of, and execute or waive any and all rights of, the Principal Stockholders under this Article IV or Section 6.2. The Stockholder Representative shall have no liability to any Principal Stockholder for any action taken or obligation omitted on behalf of the Indemnified PartyPrincipal Stockholders pursuant to this Article IV or Section 6.2.
Appears in 1 contract
Samples: Principal Stockholder Stock Purchase Agreement (Sapient Corp)
Claims for Indemnification. A Person entitled to The parties intend that all indemnification under this Section 10.1 claims hereunder be made as promptly as practicable by the party seeking indemnification (an “the "Indemnified Party”) shall give prompt written notification to "). Whenever any claim arises for indemnification hereunder the Indemnified Party will promptly notify the party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon such claim. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a "Third Party (it being understood Claim"), the notice to the Indemnifying Party will specify, if known, the amount or an estimate of the amount of the liability arising therefrom. The Indemnifying Party shall have the right to dispute and agreeddefend all Third Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Indemnifying Party, and the cost of such defense shall be borne by the Indemnifying Party, except that the Indemnified Party shall have the right to participate in such defense at its own expense; and provided, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its must first acknowledge that the claim is a bona fide indemnification obligation claim under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, in order for the Indemnifying party to control the defense. The Indemnified Party may, upon written notice thereof to the Indemnified Party, assume control of shall cooperate in all reasonable respects in the defense of any such actionclaim, suitincluding making personnel, proceeding or claim with counsel reasonably satisfactory books, and records relevant to the Indemnified claim available to the Indemnifying Party, without charge, except for reasonable out-of-pocket expenses. If the Indemnifying Party does not assume control of such defensefails to take action within thirty (30) days as set forth above, then the Indemnified Party shall control such defense. The have the right to pay, compromise or defend any Third Party not controlling such Claim and to assert the amount of any payment on the Third Party Claim plus the reasonable expenses of defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised or settlement 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 theretoclaim. The Indemnified Party shall also have the right, exercisable in good faith, to take such action as may be necessary to avoid a default prior to the assumption of the defense of the Third Party Claim by the Indemnifying Party, and any reasonable expenses incurred by Indemnified Party so acting shall be paid by the Indemnifying Party. Except as otherwise provided herein, the Indemnified Party will not agree settle or compromise any Third Party Claim for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. If the Indemnifying Party shall is of the opinion that the Indemnified Party is not unreasonably withholdentitled to indemnification, condition or delayis not entitled to indemnification in the amount claimed in such notice, it will deliver, within ten (10) business days after the receipt of such notice, a written objection to such claim and written specifications in reasonable detail of the aspects or details objected to, and the grounds for such objection. The If the Indemnifying Party shall filed timely written notice of objection to any claim for indemnification, the validity and amount of such claim will be determined by arbitration pursuant to Section 9.12 hereof. Subject to the limitations of Sections 8.6 and 8.7, if timely notice of objection is not agreedelivered or if a claim by an Indemnified Party is admitted in writing by an Indemnifying Party or if an arbitration award is made in favor of an Indemnified Party, without the prior written consent of the Indemnified Party, which consent as a non-exclusive remedy, will have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Indemnified Party shall not unreasonably withhold, condition or delay, any subsidiary thereof to any settlement Indemnifying Party by reason of such action, suit, proceeding this Agreement or claim any agreement or consent arrangement or contract to any judgment in respect thereof that does not include a complete and unconditional release of be entered into at the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClosing.
Appears in 1 contract
Claims for Indemnification. (a) A Person entitled party seeking indemnification for Article XI Damages or for damages under Article VII or VIII (the "Indemnified Party"), as a condition of asserting claims for indemnification, shall promptly after becoming aware of such claim notify the other party (the "Indemnifying Party") in writing of any event, or of any facts, which, in its opinion, entitle or may entitle the Indemnified Party to indemnification under Article VI or this Section 10.1 (an “Article XI. The notice from the Indemnified Party”) Party shall give prompt written notification specify all facts then known to it relating to its claim for indemnification and the Party from whom indemnification is sought (the “Indemnifying Party”) amount or estimated amount of the commencement liability arising therefrom. The right of the Indemnified Party to indemnification and the amount or the estimated amount thereof, as set forth in the notice, shall be deemed agreed to by the Indemnifying Party unless, within 30 days after the mailing of such notice, the Indemnifying Party notifies the Indemnified Party in writing that it disputes the right of the Indemnified Party to indemnification as set forth or estimated in the notice or that the Indemnifying Party elects to defend, in the manner provided in Section 11.5 hereof, the claim giving rise to such indemnification right. If the Indemnified Party shall be duly notified that the Indemnifying Party disputes such claim as aforesaid, the parties shall endeavor to settle and compromise such dispute but no such settlement or compromise shall be effected without the consent of both. If unable to do any actionof the foregoing, suit such dispute as to indemnification shall be determined by appropriate litigation (which shall mean when the claim has been finally determined by a court or proceeding relating to a Third Party claim for tribunal from which indemnification determination no appeal is or may be sought or, if earlier, upon taken or when the assertion defense thereto has been abandoned); and any right of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice indemnification established by reason of a Third Party claim as provided in this Section 10.1(c) such settlement, compromise, or litigation shall not relieve be promptly thereafter paid and satisfied by the Indemnifying Party Party.
(b) Neither the Stockholder nor the Acquiror, as the case may be, will be obligated to indemnify, defend or hold the other party harmless with respect to any Article XI Damages arising out of its Section 11.1 or 11.2 with respect to any claims, unless and until the principal amount of all Article XI Damages asserted by it shall, in aggregate, exceed the sum of $50,000, and then indemnification obligation under this Agreement except and only shall be had to the extent that of all such Indemnifying Party is actually damaged as a result Article XI Damages, including the first $50,000 of such failure Article XI Damages. The Stockholder shall not be liable to give notice). Within [**] days after delivery of such notification, Acquiror for Article XI Damages in the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control aggregate in excess of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyMerger Consideration.
Appears in 1 contract
Samples: Merger Agreement (Rade Stephen)
Claims for Indemnification. A Person entitled to indemnification In the event of the occurrence of any event which any party hereto asserts is an indemnifiable event under this Section 10.1 (an “Indemnified Party”) Article VII, such party shall give provide prompt written notification notice to the Party from whom indemnification is sought (other party or parties asserted to be required to provide indemnification, specifying in reasonable detail the “Indemnifying Party”) of facts and circumstances with respect to such claim and the commencement of any action, suit or proceeding relating to a Third Party claim basis for which indemnification may be sought or, if earlier, upon is available hereunder. If such event involves the assertion claim of any third party, the Indemnifying Party in such claim by a Third Party (it being understood and agreedcase shall have the right to control the defense or settlement of such claim; provided, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c(a) shall not relieve if the Indemnifying Party of its indemnification obligation under this Agreement except and only elects to the extent that exercise such Indemnifying Party is actually damaged as a result of rights, it shall assume such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon defense by written notice thereof to the Indemnified Party, assume control of (b) the Indemnified Party shall be entitled to participate in the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent (c) the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without obtain the prior written consent of the Indemnified Party (which consent may be withheld in the sole and absolute discretion of the Indemnified Party) before entering into any settlement of such claim if, pursuant to or as a result of such settlement, injunctive or other non-monetary relief would be imposed against the Indemnified Party, which consent (d) the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall not unreasonably withholdbe entitled to have sole control over, at the Indemnifying Party's sole expense, the defense or settlement of any claim to the extent such claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, properties, assets, liabilities, condition (financial or delay, to any settlement of such action, suit, proceeding otherwise) or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release prospects of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on of the Indemnified Party.'s affiliates, provided that the Indemnified Party shall provide written notice to the Indemnifying Party of its election to assume control
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Erekesef Securities LTD)
Claims for Indemnification. A Person entitled (a) Subject to Section 8.1, whenever any claim arises for indemnification under this Section 10.1 hereunder the party seeking indemnification (an the “Indemnified Party”) shall give prompt written notification to ), will promptly notify in writing the Party party from whom indemnification is sought (the “Indemnifying Party”) of the commencement claim and, when known, the facts constituting the basis for such claim; provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party, except to the extent the rights of the Indemnifying Party are materially prejudiced. In the event that the Stockholders are seeking indemnification as the Indemnified Party hereunder, or indemnification is sought against the Stockholders as an Indemnifying Party hereunder, then in either such case, the Stockholders’ Representative shall be entitled to act on behalf of, and receive notice on behalf of, the Stockholders for any action, suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon and all purposes stated therein. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a “Third Party (it Claim”), the notice to the Indemnifying Party will specify with reasonable specificity, if known, the basis under which the right to indemnification is being understood asserted and agreedthe amount or an estimate of the amount of the liability arising therefrom; provided, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such any failure to give notice). Within [**] days after delivery such notice will not waive any rights of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory except to the Indemnified Party. If extent the rights of the Indemnifying Party does not assume control are materially prejudiced. The Indemnifying Party shall have the sole right to dispute and defend all Third Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Indemnifying Party, and the cost of such defensedefense shall be borne by the Indemnifying Party, except that the Indemnified Party shall control such defense. The Party not controlling have the right to participate in such defense may participate therein at its own expense. The Indemnified Party controlling shall cooperate in all reasonable respects in the investigation, trial and defense of any such claim, including making personnel, books, and records relevant to the claim available to the Indemnifying Party, without charge, except for reasonable out-of-pocket expenses. If the Indemnifying Party fails to take action within thirty (30) of receipt of notice of an indemnification claim by the Indemnified Party, then the Indemnified Party shall have the right to pay, compromise or defend any Third Party Claim and to assert the amount of any payment on the Third Party Claim plus the reasonable expenses of defense shall keep the other Party advised or settlement 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 theretoclaim. The Indemnified Party shall not agree also have the right and upon delivery of advance written notice to such effect to the Indemnifying Party, exercisable in good faith, to take such action as may be reasonably necessary to avoid a default judgment prior to the assumption of the defense of the Third Party Claim by the Indemnifying Party, so long as the Indemnifying Party has received due and timely notice from the Indemnified Party as set forth above, and any settlement of such actionreasonable expenses incurred by Indemnified Party so acting shall be paid by the Indemnifying Party; provided that the Indemnifying Party agrees that the Third Party claim is a bona fide indemnification claim under this Agreement. Except as otherwise provided herein, suitthe Indemnified Party will not, proceeding except at its own cost and expense, settle or claim compromise any Third Party Claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, delayed or conditioned. The parties intend that all indemnification claims be made as promptly as practicable.
(b) If the Indemnifying Party shall is of the opinion that the Indemnified Party is not unreasonably withholdentitled to indemnification, condition or delay. The is not entitled to indemnification in the amount claimed in such notice, the Indemnifying Party shall not agreewill deliver, without within ten (10) Business Days after the prior receipt of such written consent notice, a written objection to such claim and written specifications in reasonable detail, if known, of the aspects or details objected to, and the grounds for such objection. If a claim, including the amount thereof, by an Indemnified Party is expressly admitted in writing by an Indemnifying Party or if an arbitration award is made in favor of an Indemnified Party, the Indemnified Party, which consent as a non-exclusive remedy, will have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Indemnified Party shall not unreasonably withhold, condition or delay, any Subsidiary thereof to any settlement Indemnifying Party by reason of such action, suit, proceeding this Agreement or claim any agreement or consent arrangement or contract to any judgment in respect thereof that does not include a complete and unconditional release of be entered into at the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClosing.
Appears in 1 contract
Samples: Merger Agreement (American Medical Systems Holdings Inc)
Claims for Indemnification. A Person entitled The representations, warranties, covenants and agreements in this Agreement shall survive the Closing for a period of two years and shall not be affected by any investigation made by the parties hereto prior to the date hereof or the Closing Date. The Party seeking indemnification under this Section 10.1 (an “the "Indemnified Party”") shall give prompt written notification to the Party from whom indemnification is sought (the “"Indemnifying Party”") a written notice ("Notice of Claim") within sixty (60) days of the commencement discovery of any actionloss, suit liability, claim or proceeding relating expense in respect of which the right to a Third Party claim for which indemnification contained in this Article 10 may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreedclaimed; provided, however, that the failure by an Indemnified Party to give such notice of a Third Party claim as provided in this Section 10.1(cwithin such sixty (60) day period shall not relieve result in the Indemnifying Party waiver or loss of its indemnification obligation under this Agreement except any right to bring such claim hereunder after such period unless, and only to the extent that such Indemnifying that, the other Party is actually damaged prejudiced by such failure. In the event a claim is pending or threatened or the Indemnified Party has a reasonable belief as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control validity of the defense of basis for such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defenseclaim, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised give written notice (a "Notice of the status Possible Claim") of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying regardless of whether a loss has arisen from such claim. A Party shall not unreasonably withholdhave no liability under this Article 10 for breach of a representation or warranty, condition unless a Notice of Claim or delay. The Indemnifying Party shall not agree, without the prior written consent Notice of Possible Claim therefor is delivered by the Indemnified Party; provided, which consent however, that the Indemnified Party limitations set forth in this Section 10.3 shall not unreasonably withholdapply to liability under this Article 10 for any intentional breach of a representation or warranty in this Agreement. Any Notice of Claim or Notice of Possible Claim shall set forth the representations, condition warranties, covenants and agreements with respect to which the claim is made, the specific facts giving rise to an alleged basis for the claim and the amount of liability asserted or delay, anticipated to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release be asserted by reason of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partyclaim.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tanners Restaurant Group Inc)
Claims for Indemnification. (a) A Person Party entitled to indemnification under this Section 10.1 Article VI (an “"Indemnified Party”") shall give prompt written notification to the Party party from whom which indemnification is sought (the “"Indemnifying Party”") of the commencement of any action, suit or proceeding relating to a Third Party third party claim for which indemnification pursuant to this Article VI may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice)sought. Within [**] 15 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, suit or proceeding or claim with counsel reasonably satisfactory to the Indemnified Party, provided the Indemnifying Party acknowledges in writing to the Indemnified Party that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Party in connection with such action, suit or proceeding constitute Damages for which the Indemnified Party shall be entitled to indemnification pursuant to this Article VI. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered "Damages" for purposes of this Agreement. The Party party controlling such defense shall keep the other Party party advised of the status of such action, suit, suit or proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other Party party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, suit or proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agreeagree to any settlement of such action, suit or proceeding without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld.
(b) Notwithstanding the provisions of Section 6.3(a), if a third party asserts (other than by means of a lawsuit) that ASC is liable to it for a monetary or other obligation which may constitute or result in Damages for which ASC may be entitled to indemnification pursuant to this Article VI, and ASC reasonably determines that it has a valid business reason to fulfill such obligation, then (i) if time is of the essence, ASC shall be entitled to satisfy such obligation, without prior notice to or consent from the Stockholder (however ASC shall use its reasonable best efforts to give notice to and consult with the Stockholder prior to acting on the obligation, whenever practicable), (ii) ASC may make a claim for indemnification pursuant to this Article VI in accordance with the provisions of this Section 6.3, and (iii) ASC shall be reimbursed, in accordance with the provisions of this Section 6.3, for any such Damages for which it is entitled to indemnification pursuant to this Article VI (subject to the right of the Stockholder to dispute ASC's entitlement to indemnification or the amount for which it is entitled to indemnification).
(c) Promptly following delivery of a written notice from the Indemnified Party shall not unreasonably withholdwhich contains (i) a description of any Damages incurred by the Indemnified Party, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof (ii) a statement that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on is entitled to indemnification under this Article VI for such Damages and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such Damages, the Indemnifying Party shall pay such amount to the Indemnified Party, by check or by wire transfer.
Appears in 1 contract
Samples: Merger Agreement (American Superconductor Corp /De/)
Claims for Indemnification. A Person entitled to Whenever any claim shall arise for indemnification under this Section 10.1 (9.3, Seller or a Stockholder shall promptly notify in writing the Purchaser and Oak Tree of the claim and, when known, the facts constituting the basis for such claim. In the event of any Third Party Claim, such notice shall also specify, if known, the amount or an “Indemnified Party”) estimate of the amount of the liability arising therefrom. Neither Seller nor the Stockholders shall incur any expenses, or settle or compromise or enter into any binding agreement to settle or compromise, or consent to entry of any judgment arising from, any such claim or proceeding except in accordance with this Section 9.3. Seller and the Stockholders will give Purchaser and Oak Tree prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 notice of any such claim by a and, with respect to any Third Party (it being understood Claim, Purchaser or Oak Tree will undertake the defense thereof by representatives of its own choosing reasonably satisfactory to Seller and agreed, however, that the failure by an Indemnified Party Stockholders. Seller and the Stockholders shall have the right to give notice participate in any such defense of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party Claim with advisory counsel of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein own choosing at its own expense. The In the event Purchaser or Oak Tree, within a reasonable time after notice of any such Third Party controlling such defense shall keep the other Party advised of the status of such actionClaim, suitfails to defend, proceeding or claim Seller and the defense thereof and shall consider recommendations made by Stockholders will have the other Party with respect thereto. The Indemnified Party shall not agree right to any undertake the defense, compromise or settlement of such actionThird Party Claim on behalf of, suitand for the account of, proceeding or claim Purchaser and Oak Tree, at the expense and risk of Purchaser and Oak Tree. Purchaser and Oak Tree shall not, without the prior written consent of Seller and the Indemnifying PartyStockholders, settle or compromise any such Third Party Claim or consent to entry of any judgment which consent does not include as an unconditional term thereof the Indemnifying giving by the claimant or the plaintiff to Seller and the Stockholders, an unconditional release from all liability in respect of such Third Party shall not unreasonably withhold, condition or delayClaim. The Indemnifying Party shall not agree, without Seller and the prior written consent Stockholders will cooperate with Oak Tree and the Purchaser in connection with the defense of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such actionThird Party Claim. Notwithstanding the foregoing, suit, proceeding or claim or consent Purchaser and Oak Tree shall have the right to dispute the issue of whether it is obligated hereunder to indemnify Seller and the Stockholders with respect to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified particular Third Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClaim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Oak Tree Medical Systems Inc)
Claims for Indemnification. A Person entitled party seeking indemnification for Article VII Damages (the "Indemnified Party"), as a condition of asserting claims for indemnification, shall notify the other party (the "Indemnifying Party") in writing of any event, or of any facts, which, in its opinion, entitle or may entitle the Indemnified Party to indemnification under this Section 10.1 (an “Article VII. The notice from the Indemnified Party”) Party shall give prompt written notification specify all facts then known to it relating to its claim for indemnification and the Party from whom indemnification is sought (the “Indemnifying Party”) amount or estimated amount of the commencement liability arising therefrom. The right of the Indemnified Party to indemnification and the amount or the estimated amount thereof, as set forth in the notice, shall be deemed agreed to by the Indemnifying Party unless, within 30 days after the mailing of such notice, the Indemnifying Party notifies the Indemnified Party in writing that it disputes the right of the Indemnified Party to indemnification as set forth or estimated in the notice or that the Indemnifying Party elects to defend, in the manner provided in Section 7.5 hereof, the claim giving rise to such indemnification right. If the Indemnified Party shall be duly notified that the Indemnifying Party disputes such claim as aforesaid, the parties shall endeavor to settle and compromise such dispute but no such settlement or compromise shall be effected without the consent of both. If unable to do any actionof the foregoing, suit such dispute as to indemnification shall be determined by appropriate litigation (which shall mean when the claim has been finally determined by a court or proceeding relating to a Third Party claim for tribunal from which indemnification determination no appeal is or may be sought or, if earlier, upon taken or when the assertion defense thereto has been abandoned); and any right of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result established by reason of such failure to give notice). Within [**] days after delivery of such notificationsettlement, the Indemnifying Party maycompromise, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party litigation shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim be promptly thereafter paid and the defense thereof and shall consider recommendations made satisfied by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party.
Appears in 1 contract
Claims for Indemnification. A Person entitled to The parties intend that all indemnification under this Section 10.1 claims hereunder be made as promptly as practicable by the party seeking indemnification (an “the "Indemnified Party”) shall give prompt written notification to "). Whenever any claim arises for indemnification hereunder the Indemnified Party will promptly notify the party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon such claim. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a "Third Party (it being understood and agreedClaim"), however, that the failure by an Indemnified Party notice to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party will specify, if known, the amount or an estimate of its indemnification obligation under this Agreement except and only to the extent that such amount of the liability arising therefrom. The Indemnifying Party is actually damaged as a result shall have the right to dispute and defend all Third Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Indemnifying Party, and the cost of such failure defense shall be borne by the Indemnifying Party, except that the Indemnified Party shall have the right to give notice). Within [**] days after delivery of participate in such notificationdefense at its own expense, and PROVIDED, HOWEVER that the Indemnifying Party may, upon written notice thereof to must first acknowledge that the claim is a bona fide indemnification claim under this Agreement. The Indemnified Party, assume control of Party shall cooperate in all reasonable respects in the defense of any such actionclaim, suitincluding making personnel, proceeding or claim with counsel reasonably satisfactory books, and records relevant to the Indemnified claim available to the Indemnifying Party, without charge, except for reasonable out-of-pocket expenses. If the Indemnifying Party does not assume control of such defensefails to take action within thirty (30) days as set forth above, then the Indemnified Party shall control such defense. The have the right to pay, compromise or defend any Third Party not controlling such Claim and to assert the amount of any payment on the Third Party Claim plus the reasonable expenses of defense may participate therein at its own expense. The Party controlling such defense shall keep or settlement as 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 theretoclaim. The Indemnified Party shall also have the right, exercisable in good faith, to take such action as may be necessary to avoid a default prior to the assumption of the defense of the Third Party Claim by the Indemnifying Party, and any reasonable expenses incurred by Indemnified Party so acting shall be paid by the Indemnifying Party. Except as otherwise provided herein, the Indemnified Party will not agree settle or compromise any Third Party Claim for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. If the Indemnifying Party shall is of the opinion that the Indemnified Party is not unreasonably withholdentitled to indemnification, condition or delayis not entitled to indemnification in the amount claimed in such notice, it will deliver, within ten (10) business days after the receipt of such notice, a written objection to such claim and written specifications in reasonable detail of the aspects or details objected to, and the grounds for such objection. The If the Indemnifying Party shall filed timely written notice of objection to any claim for indemnification, the validity and amount of such claim will be determined by arbitration pursuant to Section 9.12 hereof. If timely notice of objection is not agreedelivered or if a claim by an Indemnified Party is admitted in writing by an Indemnifying Party or if an arbitration award is made in favor of an Indemnified Party, without the prior written consent of the Indemnified Party, which consent as a non-exclusive remedy, will have the right to set-off the amount of such claim or award against any amount yet owed, whether due or to become due, by the Indemnified Party shall not unreasonably withhold, condition or delay, any subsidiary thereof to any settlement Indemnifying Party by reason of such action, suit, proceeding this Agreement or claim any agreement or consent arrangement or contract to any judgment in respect thereof that does not include a complete and unconditional release of be entered into at the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified PartyClosing.
Appears in 1 contract
Claims for Indemnification. A Person entitled to (a) The parties intend that all indemnification under this Section 10.1 claims be made as promptly as practicable by the party seeking indemnification (an “the "Indemnified Party”) "). Whenever any claim shall give prompt written notification to arise for indemnification, the Indemnified Party shall promptly notify the party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any actionclaim, suit or proceeding relating and the facts constituting the basis for such claim. The failure to a Third so notify the Indemnifying Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent any liability that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof it may have to the Indemnified Party, assume control of except to the extent the Indemnifying Party demonstrates that the defense of such actionaction is materially prejudiced thereby.
(b) With respect to claims made by third parties, suitthe Indemnifying Party, proceeding upon acknowledgment of its obligations under the terms of the indemnity hereunder in connection with such third-party claim shall be entitled to assume the defense of such action or claim with counsel reasonably satisfactory to the Indemnified Party. If ; provided, that the Indemnifying Party does shall not be entitled to assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense. 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 promptly pay the fees and expenses of counsel retained by the other Indemnified Party if (i) the claim for indemnification is with respect theretoto a criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party, (ii) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party, (iii) the Indemnifying Party has failed or is failing to vigorously prosecute or defend such claim or (iv) the claim seeks an injunction or other equitable relief against the Indemnified Party. The Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. The Indemnified Party shall not agree have the right to any settlement participate at its own expense in the defense of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the asserted liability. No Indemnifying Party shall not unreasonably withhold, condition consent to the entry of any judgment or delay. The Indemnifying Party shall not agree, enter into any settlement without the prior written consent of the Indemnified PartyParty (A) if such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect to such claim, which (B) if such judgment or settlement would result in the finding or admission of any violation of Law, or (C) if as a result of such consent or settlement injunctive or other equitable relief would be imposed against the Indemnified Party shall not unreasonably withholdor such judgment or settlement would interfere with or adversely affect the business, condition operations or delay, to any settlement assets of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party.
Appears in 1 contract
Claims for Indemnification. (a) A Person entitled to indemnification under this Section 10.1 9.11 (an “Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) of any Claim or fact in respect of which the commencement of any action, suit or proceeding relating to Indemnified Party may base a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a Third Party hereunder (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim Claim as provided in this Section 10.1(c) 9.11 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged prejudiced as a result of such failure to give notice). Such notice (the “Indemnification Claim Notice”) shall contain a description of the Claim and the nature and amount of the Claim (to the extent that the nature and amount of such Claim is known at such time). Upon the request of the Indemnifying Party, the Indemnified Party shall furnish promptly to the Indemnifying Party copies of all correspondence, communications and official documents (including court documents) received or sent in respect of such Claim.
(b) Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, shall assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. The assumption of the defense of a Claim by the Indemnifying Party shall not be construed as acknowledgement that the Indemnifying Party is liable to indemnify any indemnitee in respect of the Claim, nor shall it constitute a waiver by the Indemnifying Party of any defenses it may assert against any Indemnified Party’s claim for indemnification. If it is ultimately decided that the Indemnifying Party is not obligated to indemnify or hold an indemnitee harmless from and against the Claim, the Indemnified Party shall reimburse the Indemnifying Party for any and all costs and expenses (including reasonable attorneys’ fees and costs of suit) incurred by the Indemnifying Party in its defense of the Claim. If the Indemnifying Party does not give written notice to the Indemnified Party, within [**] after receipt of the Indemnification Claim Notice, ActiveUS 166647742v.1 of the Indemnifying Party’s election to assume control the defense and handling of such defenseClaim, the provisions of clause (f) below shall govern.
(c) The Indemnified Party shall control such defense. The Party not controlling such defense may participate therein in, but not control, any such Claim at its own expense; provided that if the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith. The Indemnified Party controlling shall also cooperate with the Indemnifying Party in the defense of such defense Claim, including by furnishing such records, information and testimony, providing witnesses and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith, providing access during normal business hours to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Claim, and making the Indemnified Party, the indemnitees and its and their employees and agents available on a mutually convenient basis to provide additional information and explanation of any records or information provided, all at the Indemnifying Party’s expense.
(d) The Indemnifying Party shall keep the other Indemnified Party advised of the status of such action, suit, proceeding or claim Claim and the defense thereof and shall consider recommendations made by the other Indemnified Party with respect thereto. .
(e) The Indemnified Party shall not agree to any settlement of such actionClaim without the prior written consent of the Indemnifying Party. The Indemnifying Party shall have the right to settle such Claim on any terms the Indemnifying Party chooses; provided that it shall not, suitwithout the prior written consent of the Indemnified Party, proceeding agree to a settlement of any Claim which could lead to liability or claim create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder or which admits any wrongdoing or responsibility for the Claim on behalf of the Indemnified Party.
(f) If the Indemnifying Party does not give written notice to the Indemnified Party as set forth in Section 9.11.3(b) or fails to conduct the defense and handling of any Claim in good faith after having assumed such, the Indemnified Party may, at the Indemnifying Party’s expense, select counsel reasonably acceptable to the Indemnifying Party in connection with conducting the defense and handling of such Claim and defend or handle such Claim in such manner as it may deem appropriate. In such event, the Indemnified Party shall keep the Indemnifying Party timely apprised of the status of such Claim and shall not settle such Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party defends or handles such Claim, the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of cooperate with the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on at the Indemnified Party’s request but at no expense to the Indemnified Party, and shall be entitled to participate in the defense and handling of such Claim with its own counsel and at its own expense.
Appears in 1 contract
Claims for Indemnification. A Person person entitled to indemnification under this Section 10.1 (an “Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within [**] days after delivery of Upon such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, shall assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the The Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnifying Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one (1) counsel for all Indemnified Parties. The Indemnifying Party controlling such defense shall keep the other Indemnified Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider reasonable recommendations made by the other Indemnified Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withholdwithheld, condition delayed or delayconditioned. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, delayed or conditioned.
Appears in 1 contract
Samples: Sublicense Agreement (Navidea Biopharmaceuticals, Inc.)
Claims for Indemnification. A Person entitled (a) Subject to Section 9.4(c) and Section 9.1, whenever any claim arises for indemnification under this Section 10.1 hereunder the party seeking indemnification (an “the "Indemnified Party”) shall give prompt written notification to "), will promptly notify the Party party from whom indemnification is sought (the “"Indemnifying Party”") of the commencement of any actionclaim and, suit or proceeding relating to a Third Party claim when known, the facts constituting the basis for which indemnification may be sought or, if earlier, upon such claim. In the assertion case of any such claim by for indemnification hereunder resulting from or in connection with any claim or legal proceedings of a third party (a "Third Party (it being understood and agreedClaim"), however, that the failure by an Indemnified Party notice to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party will specify, if known, the amount or an estimate of its indemnification obligation under this Agreement except and only to the extent that such amount of the liability arising therefrom. The Indemnifying Party is actually damaged as a result shall have the right to dispute and defend all Third Party Claims and thereafter so defend and pay any adverse final judgment or award or settlement amount in regard thereto. Such defense shall be controlled by the Indemnifying Party, and the cost of such failure defense shall be borne by the Indemnifying Party, except that the Indemnified Party shall have the right to give notice). Within [**] days after delivery of participate in such notificationdefense at its own expense, and provided, however that the Indemnifying Party may, upon written notice thereof to must first acknowledge that the claim is a bona fide indemnification claim under this Agreement. The Indemnified Party, assume control of Party shall cooperate in all reasonable respects in the defense of any such actionclaim, suitincluding making personnel, proceeding or claim with counsel reasonably satisfactory books, and records relevant to the Indemnified claim available to the Indemnifying Party, without charge, except for reasonable out-of-pocket expenses. If the Indemnifying Party does not assume control of such defensefails to take action within thirty (30) days as set forth above, then the Indemnified Party shall control such defense. The have the right to pay, compromise or defend any Third Party not controlling such Claim and to assert the amount of any payment on the Third Party Claim plus the reasonable expenses of defense may participate therein at its own expense. The Party controlling such defense shall keep or settlement as 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 theretoclaim. The Indemnified Party shall also have the right, exercisable in good faith, to take such action as may be necessary to avoid a default prior to the assumption of the defense of the Third Party Claim by the Indemnifying Party, and any reasonable expenses incurred by Indemnified Party so acting shall be paid by the Indemnifying Party. Except as otherwise provided herein, the Indemnified Party will not agree settle or compromise any Third Party Claim for which it is entitled to any settlement of such action, suit, proceeding or claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. The parties intend that all indemnification claims be made as promptly as practicable.
(b) If the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent is of the Indemnified Party, which consent opinion that the Indemnified Party shall is not unreasonably withholdentitled to indemnification, condition or delayis not entitled to indemnification in the amount claimed in such notice, to any settlement of such actionthe Indemnifying Party will deliver, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party.within ten (10)
Appears in 1 contract
Samples: Merger Agreement (American Medical Systems Holdings Inc)
Claims for Indemnification. 16.3.1 A Person person entitled to indemnification under this Section 10.1 16.1 or 16.2 (an “Indemnified Party”) shall give prompt written notification to the Party person from whom indemnification is sought (the “Indemnifying Party”) 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 any such claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Third Party claim as provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Party.
16.3.2 Within [[***]] days after delivery receipt of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Partyof its choice. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. .
16.3.3 The Party not controlling such defense may participate therein at its own expense. .
16.3.4 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 in good faith reasonable recommendations made by the other Party with respect thereto.
16.3.5 If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party that is a Party to this Agreement shall, and shall cause each of its Affiliates and each of their respective directors, officers, employees and agents to reasonably cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, provide such witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours by the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making the Indemnified Party, its Affiliates and its and their respective directors, officers, employees and agents available on a mutually convenient basis to provide additional information and explanation of any records or information provided, and the Indemnifying Party shall reimburse the Indemnified Party for all of its related reasonable out-of-pocket expenses.
16.3.6 The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not be unreasonably withhold, condition or delaywithheld. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party.
Appears in 1 contract
Samples: Research and Development and License Agreement (Atara Biotherapeutics, Inc.)
Claims for Indemnification. A Person entitled to indemnification under this Section 10.1 (an “Indemnified Party”i) In the event that any Claim shall give prompt written notification to the Party from whom indemnification is sought (the “Indemnifying Party”) be asserted by any party hereto in respect of the commencement of any action, suit or proceeding relating to a Third Party claim for which indemnification payment may be sought orunder Section 10.1 of this Agreement, the party seeking indemnification hereunder shall promptly cause written notice of the institution or assertion of such Claim, detailing with reasonable specificity the nature and a reasonable estimate of the amount of such damages or of such Claim that is covered by this indemnity, to be forwarded to the indemnifying party (and shall permit such indemnifying party to have access to such books and records as necessary for the indemnifying party to evaluate the Claim and determine whether it is required to indemnify the indemnified party), who shall within thirty (30) Business Days of receipt of such written notice, notify the party asserting such Claim as to whether the indemnifying party accepts, rejects or needs more time to investigate such indemnification obligation and (ii) in the event that any Claim shall be asserted by any Third Party in respect of which payment may be sought under Article 10 of this Agreement, the indemnified party shall promptly cause written notice of the institution or assertion of such Claim, detailing with reasonable specificity the nature and a reasonable estimate of the amount of such damages or of such Claim that is covered by this indemnity, to be forwarded to the indemnifying party. If the indemnifying party agrees that the indemnification obligations set forth in this Article 10 apply to it with respect to a particular Third Party Claim (without taking into account the Seller Basket in Section 10.4(a) or the threshold amount in Section 10.6(a)), the indemnifying party, at its election and subject to Section 10.7(e) below, shall have the absolute and exclusive right to defend against, contest (in a forum of its choice), appeal, negotiate, settle, compromise or otherwise deal with such Claim (each of such actions for the purposes of this Section 10.7 being referred to as “defending” a Claim or the “defense” of a Claim), and shall have the right, at its sole option and expense, to be represented by counsel of its choice, which must be reasonably satisfactory to the indemnified party, and the indemnified party agrees to cooperate fully with such defense. If the indemnifying party notifies the indemnified party that more time is needed to investigate, the indemnifying party may proceed under the prior sentence for a period not to exceed sixty (60) Business Days in total, at which time it must decide to defend or reject the indemnifications. During the second period of thirty (30) Business Days, any out of pocket costs incurred by the indemnified party prior to a decision to accept the indemnification obligation and to defend such claim shall be added to the indemnification obligation. If the indemnifying party elects to defend such Claim, it shall within thirty (30) Business Days of the written notice in the first sentence of this Section 10.7(a) (or sooner, if earlier, upon the assertion nature of any the Claim so requires) notify the indemnified party of its intent to do so. If the indemnifying party elects to defend such claim by a Third Party (it being understood Claim, the indemnified party may be present at all meetings and agreedLegal Proceedings, at his or its own expense, but may not participate in the defense of such Claim; provided however, that the failure indemnifying party shall not pay for separate counsel for the indemnified parties, unless (i) the indemnified party is requested by an Indemnified Party the indemnifying party to give notice participate in any meeting or Legal Proceeding, or (ii) in the reasonable written opinion of counsel to the indemnified party, a conflict or potential conflict exists between the indemnified party and the indemnifying party that would make separate representation advisable; provided further that the indemnifying party shall not be required to pay for more than one such counsel in any single jurisdiction for all indemnified parties in connection with any Claim. If the indemnifying party (A) elects not to defend such Third Party claim as provided in this Section 10.1(cClaim, (B) shall not relieve fails to notify the Indemnifying Party indemnified party of its indemnification election as herein provided, or (C) contests its obligation to indemnify the indemnified party for such Losses under this Agreement except and only after the expiration of any period provided in the prior paragraph to the extent that such Indemnifying Party is actually damaged as further investigate a result of such failure to give notice). Within [**] days after delivery of such notificationClaim, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of indemnified party may defend such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified PartyClaim. If the Indemnifying indemnified party so defends any Third Party does not assume control Claim and such Third Party Claim is ultimately determined to be a Claim for which such party was entitled to indemnification pursuant to this Article 10, then the indemnifying party shall promptly reimburse the indemnified party for the reasonable expenses of defending such defense, the Indemnified Party shall control such defenseClaim upon submission of periodic bills. The Party not controlling such defense may participate therein at its own expenseparties hereto agree to cooperate fully with each other in connection with any Claim. The Party controlling such defense Each party shall keep provide the other Party advised party, copies of all notices, correspondence, or other communications received by that party with respect to the determination of the status Claim promptly upon receipt thereof but in any event within five (5) Business Days of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent the Indemnifying Party shall not unreasonably withhold, condition or delay. The Indemnifying Party shall not agree, without the prior written consent of the Indemnified Party, which consent the Indemnified Party shall not unreasonably withhold, condition or delay, to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Partyreceipt.
Appears in 1 contract
Samples: Merger Agreement (New Century Equity Holdings Corp)