Conduct of Proceedings. If any claim or proceeding covered by the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of the existence of such claim or proceeding; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Usinternetworking Inc), Asset Purchase Agreement (Beasley Broadcast Group Inc), Asset Purchase Agreement (Beasley Broadcast Group Inc)
Conduct of Proceedings. If Each Party and each other Indemnified Person shall have the right, but not the obligation, to contest, defend and litigate any claim claim, action, suit or proceeding covered by any third party alleged or asserted against it arising out of any matter in respect of which it is entitled to be indemnified hereunder and the foregoing agreements to indemnify reasonable costs and hold harmless shall arise, the party who seeks indemnification expenses thereof (the "Indemnified Party"including reasonable attorneys’ fees and expert witness fees) shall give be subject to the said indemnity; provided that the Indemnifying Party shall be entitled, at its option, to assume and control the defense of such claim, action, suit or proceeding at its expense upon its giving written notice thereof to the other party (Indemnified Person, and such Indemnifying Party shall conduct with due diligence and in good faith the "Indemnitor") promptly after defense of any claim against such party, whether or not the Indemnifying Party shall be joined therein, and the Indemnified Person shall cooperate with the Indemnifying Party learns in such defense. The Indemnified Person may elect to participate through separate counsel in the defense of any such claim, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (a) there exists a material conflict of interest between the Indemnifying Party and such Indemnified Person in the conduct of the existence defense of such claim or proceeding; provided, however, that (b) the Indemnifying Party did not employ counsel to assume the defense of such claim within a reasonable time after notice of the commencement thereof or (c) the Indemnified Party's failure Person reasonably concludes and specifically notifies the Indemnifying Party that there may be specific defenses available to give the Indemnitor prompt notice shall not bar the Indemnified Party's right it which are different from or additional to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable those available to the Indemnified Indemnifying Party. In each of such cases the Indemnifying Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result settlement of such claim or proceeding and then the reasonable fees and periodically thereafter provides expenses of counsel engaged by the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party Person shall be free to dispose of the matter, at the expense of the IndemnitorIndemnifying Party. Indemnifying Party shall give prompt written notice to Indemnified Person of any proposed settlement of an indemnified claim. Indemnifying Party may not, in without Indemnified Person's prior written consent, settle or compromise any way in claim or consent to the entry of any judgment regarding which the indemnification is being sought hereunder unless such settlement, compromise or consent (i) includes an unconditional release of Indemnified Party deems to be in its best interest.Person from all liability arising out of such claim,
Appears in 4 contracts
Samples: Engineering, Procurement and Construction Agreement, Engineering, Procurement and Construction Agreement, Engineering, Procurement and Construction Agreement
Conduct of Proceedings. If any claim or proceeding covered by the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks i A Party seeking indemnification under this Clause 14 (the "Indemnified Party") shall give written notice thereof to the other party Party (the "Indemnitor"“Indemnifying Party”) promptly after a Notice of any and all claims asserted against the Indemnifying Party for which indemnification is or may be sought hereunder, together with reasonable details of the nature of such claim. Such notice shall be given as soon as the Indemnified Party learns becomes aware that it has or may have a claim against the Indemnifying Party, provided that failure to give such Notice shall not abrogate or diminish the Indemnifying Party’s obligation under this Clause 14 if the Indemnifying Party has or receives knowledge of the existence of any such claim or proceeding; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right by any other means. ii Any Party entitled to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right right, but not the obligation, to employ counsel reasonably acceptable contest, defend and litigate (and to retain legal advisers of its choice in connection therewith) any claim, action, suit or proceeding by any third party alleged or asserted against it and arising out of any matter in respect of which it is entitled to be indemnified hereunder, and the reasonable costs and expenses thereof, shall be subject to the Indemnified Party to defend against any such claim or proceedingsaid indemnity, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that Party obligated to indemnify the Indemnitor other Party shall not have the right be entitled, at its option, to assume and control the defense of any such claim claim, action, suit or proceeding unless it has acknowledged at its expense and through legal advisers of its choice, if it:
(a) gives notice of its intention to do so to the other Party;
(b) acknowledges in writing its obligation to indemnify the Indemnified other Party fully from all liabilities to the full extent provided by this Clause 14; and
(c) reimburses the other Party for the reasonable costs and expenses previously incurred as a result by the other Party prior to the assumption of such claim or proceeding and then and periodically thereafter provides the Indemnified defence by Party with reasonably sufficient evidence of the ability of the Indemnitor obligated to satisfy provide indemnification. iii If any such liabilities. The parties will fully cooperate in any such claim, action, proceedings or investigation arises as to which the indemnities provided may apply, and shall make available the Indemnifying Party fails to each other any books or records useful for assume the defense of any such claim claim, action, proceeding or proceeding. If investigation, then the Indemnitor fails to acknowledge in writing its obligation to defend against or indemnified Party may at the Indemnifying Party’s expense contest or, with the prior written consent of the Indemnifying Party, settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.claim
Appears in 4 contracts
Samples: Gas Transmission Agreement, Gas Transmission Agreement, Gas Transmission Agreement
Conduct of Proceedings. If any claim or proceeding covered by (i) In the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of the existence of such claim or proceeding; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense event of any such claim Distribution-Related Proceeding or proceeding unless it has acknowledged in writing its obligation Proceeding relating to indemnify the Indemnified Party fully from all liabilities incurred a Tax liability as a result of such claim which Spinco could reasonably be expected to become liable for Tax or proceeding any Spin-Off-Related Losses and then and periodically thereafter provides with respect to which Remainco has the Indemnified Party with reasonably sufficient evidence right to represent the interests of the ability Spinco Group pursuant to Section 6(b)(i) above, (A) Remainco shall consult with Spinco reasonably in advance of taking any significant action in connection with such Proceeding, (B) Remainco shall consult with Spinco and offer Spinco a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such Proceeding, (C) Remainco shall defend such Proceeding diligently and in good faith as if it were the only party in interest in connection with such Proceeding, (D) Spinco shall be entitled to participate in such Proceeding and receive copies of any written materials relating to such Proceeding received from the relevant Tax Authority, and (E) Remainco shall not settle, compromise or abandon any such Proceeding without obtaining the prior written consent of Spinco, which consent shall not be unreasonably withheld.
(ii) In the event of any Distribution-Related Proceeding or Proceeding relating to a Tax liability as a result of which Remainco could reasonably be expected to become liable for Tax or any Spin-Off-Related Losses and with respect to which Spinco has the right to represent the interests of the Indemnitor Remainco Group pursuant to satisfy Section 6(b)(ii) above, (A) Spinco shall consult with Remainco reasonably in advance of taking any significant action in connection with such Proceeding, (B) Spinco shall consult with Remainco and offer Remainco a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such Proceeding, (C) Spinco shall defend such Proceeding diligently and in good faith as if it were the only party in interest in connection with such Proceeding, (D) Remainco shall be entitled to participate in such Proceeding and receive copies of any written materials relating to such Proceeding received from the relevant Tax Authority, and (E) Spinco shall not settle, compromise or abandon any such liabilities. The parties will fully cooperate in any such actionProceeding without obtaining the prior written consent of Remainco, and which consent shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall not be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interestunreasonably withheld.
Appears in 2 contracts
Samples: Tax Sharing Agreement (Babcock & Wilcox Enterprises, Inc.), Tax Sharing Agreement (Babcock & Wilcox Enterprises, Inc.)
Conduct of Proceedings. If any claim claim, action, suit or proceeding covered by the foregoing agreements to indemnify and hold harmless (a “Proceeding”) shall arise, the party who seeks seeking indemnification pursuant to this Article IX (the "“Indemnified Party"”) shall give written notice thereof to the other party (the "“Indemnitor"”) promptly after the Indemnified Party learns of the existence of such claim or proceedingProceeding; provided, however, that the Indemnified Party's ’s failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's ’s right to indemnification unless such failure has materially prejudiced the Indemnitor's ’s ability to defend the claim or proceedingProceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceedingProceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the that, Indemnitor shall not have the right settle, or consent to control the defense entry of any such claim judgment in any Proceeding, without obtaining a release of the Indemnified Party from, or proceeding unless it has acknowledged in writing acknowledging its obligation to indemnify the Indemnified Party fully from for, all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence Damages in respect of the ability of the Indemnitor to satisfy any claims underlying such liabilitiesProceeding. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceedingProceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding Proceeding within twenty thirty (2030) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free have the right to dispose undertake the defense and settlement of the matterany such Proceeding, at the expense of the Indemnitor’s expense; provided that, in any way in which if the Indemnified Party deems assumes the defense of any such Proceeding, the Indemnified Party shall not settle such Proceeding prior to final judgment thereon or forego any appeal with respect thereto without the prior written consent of the Indemnitor (which consent may not be in its best interestunreasonably withheld).
Appears in 2 contracts
Samples: Asset Purchase Agreement (UCI Holdco, Inc.), Asset Purchase Agreement (United Components Inc)
Conduct of Proceedings. If any claim or proceeding covered by (a) A Party seeking indemnification under this Clause (“the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party"”) shall give written notice thereof to the other party Party (the "Indemnitor"“Indemnifying Party”) promptly after a Notice of any and all claims asserted against the Indemnifying Party for which indemnification is or may be sought hereunder, together with reasonable details of the nature of such claim. Such notice shall be given as soon as the Indemnified Party learns becomes aware that it has or may have a claim against the Indemnifying Party, provided that failure to give such Notice shall not abrogate or diminish the Indemnifying Party’s obligation under this clause, if the Indemnifying Party has or receives knowledge of the existence of any such claim or proceeding; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right by any other means.
(b) Any Party entitled to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right right, but not the obligation, to employ counsel reasonably acceptable contest, defend and litigate (and to retain legal advisers of its choice in connection therewith) any claim, action, suit or proceeding by any third party alleged or asserted against it and arising out of any matter in respect of which it is entitled to be indemnified hereunder, and the reasonable costs and expenses thereof, shall be subject to the Indemnified Party to defend against any such claim or proceedingsaid indemnity, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that Party obligated to indemnify the Indemnitor other Party shall not have the right be entitled, at its option, to assume and control the defense of any such claim claim, action, suit or proceeding unless it has acknowledged at its expense and through legal advisers of its choice, if it:
i. Gives notice of its intention to do so to the other Party;
ii. Acknowledges in writing its obligation to indemnify the Indemnified other Party fully from all liabilities to the full extent provided by this Clause; and
iii. Reimburses the other Party for the reasonable costs and expenses previously incurred as a result by the other Party prior to the assumption of such claim or proceeding and then and periodically thereafter provides the Indemnified defense by Party with reasonably sufficient evidence of the ability of the Indemnitor obligated to satisfy provide indemnification.
(c) If any such liabilities. The parties will fully cooperate in any such claim, action, proceedings or investigation arises as to which the indemnities provided may apply, and shall make available the Indemnifying Party fails to each other any books or records useful for assume the defense of any such claim claim, action, proceeding or proceeding. If investigation, then the Indemnitor fails to acknowledge in writing its obligation to defend against or indemnified Party may at the Indemnifying Party’s expense contest or, with the prior written consent of the Indemnifying Party, settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.claim
Appears in 2 contracts
Samples: Gas Transportation Agreement, Gas Transportation Agreement
Conduct of Proceedings. If any claim or proceeding covered by the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of the existence of such claim or proceeding; providedPROVIDED, howeverHOWEVER, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided PROVIDED that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the IndemnitorIndemnitor (if the Indemnitor is ultimately liable), in any way in which the Indemnified Party deems to be in its best interest.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Usinternetworking Inc), Stock Purchase Agreement (Usinternetworking Inc)
Conduct of Proceedings. If any claim or proceeding covered by the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks (a) A Party seeking indemnification under this Clause 14 (the "“Indemnified Party"”) shall give written notice thereof to the other party Party (the "Indemnitor"“Indemnifying Party”) promptly after a notice of any and all Claims asserted against the Indemnified Party learns for which indemnification is or may be sought hereunder, together with reasonable details of the nature of such Claim. Such notice shall be given as soon as the Indemnified Party becomes aware that it has or may have a Claim against the Indemnifying Party, provided that failure to give such notice shall not abrogate or diminish the Indemnifying Party’s obligation under this Clause 14 if the Indemnifying Party has or receives knowledge of the existence of any such claim Claim by any other means.
(b) The Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate (and to retain legal advisers of its choice in connection therewith) any Claim by any Third Party alleged or proceeding; providedasserted against it and arising out of any matter in respect of which it is entitled to be indemnified hereunder, howeverand the reasonable costs and expenses thereof, shall be subject to the said indemnity, provided that the Indemnifying Party shall be entitled, at its option, to assume and control the defence of such Claim at its expense and through legal advisers of its choice, if it:
(i) promptly gives notice of its intention to do so to the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged ;
(ii) acknowledges in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides to the full extent provided by this Clause; and
(iii) reimburses the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from reasonable costs and expenses previously incurred by the Indemnified Party prior to the assumption of such defence by the Indemnifying Party.
(or c) If any Claim arises as to which the indemnities provided may apply, and the Indemnifying Party fails to assume the defence of such shorter time specified in the notice as the circumstances of the matter may dictate)Claim, then the Indemnified Party shall be free to dispose may at the Indemnifying Party’s expense, contest or, with the prior written consent of the matterIndemnifying Party, at the expense of the Indemnitorwhich shall not be unreasonably withheld, in any way in which the Indemnified Party deems to be in its best interestsettle such Claim.
Appears in 2 contracts
Samples: Gas Transportation Agreement, Firm Gas Transportation Framework Agreement
Conduct of Proceedings. If Each Party and each other indemnitee shall have the right, but not the obligation, to contest, defend and litigate any claim claim, action, suit or proceeding covered by any third party alleged or asserted against it arising out of any matter in respect of which it is entitled to be indemnified hereunder and the foregoing agreements to indemnify reasonable costs and hold harmless shall arise, the party who seeks indemnification expenses thereof (the "Indemnified Party"including reasonable attorneys’ fees and expert witness fees) shall give be subject to the said indemnity; provided that the indemnifying Party shall be entitled, at its option, to assume and control the defense of such claim, action, suit or proceeding at its expense upon its giving written notice thereof to the other party indemnified Person. The indemnified Person shall provide reasonable assistance to the indemnifying Party, at the indemnifying Party’s expense, in connection with such claim, action, suit or proceeding. Upon such assumption, the indemnifying Party shall reimburse the indemnified Person for the reasonable costs and expenses previously incurred by it prior to the assumption of such defense by the indemnifying Party. The indemnifying Party shall keep the indemnified Person informed as to the status and progress of such claim, action, suit or proceeding. Except as set forth in paragraph (c) below, in the "Indemnitor") promptly after event the Indemnified indemnifying Party learns assumes the control of the existence defense, the indemnifying Party will not be liable to the indemnified Person under this Article for any legal fees or expenses subsequently incurred by the indemnified Person in connection with such defense. The indemnifying Party shall control the settlement of such claim or proceedingall claims over which it has assumed the defense; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice indemnifying Party shall not bar agree to or conclude any settlement that affects the Indemnified Party's right to indemnification unless such failure has materially prejudiced indemnified Person without the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose prior written approval of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor indemnified Person (whose said approval shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictatebe unreasonably withheld), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.
Appears in 2 contracts
Samples: Turnkey Engineering, Procurement and Construction Agreement (Panda Ethanol, Inc.), Turnkey Engineering, Procurement and Construction Agreement (Panda Ethanol, Inc.)
Conduct of Proceedings. If any claim third party claim, action, suit or proceeding (a "Proceeding") covered by the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks seeking indemnification pursuant to this Article 8 (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly promptly, but in any event within ten days, after the Indemnified Party learns of the existence of such claim or proceedingProceeding; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar release the Indemnitor except to the extent such party is prejudiced by such failure. Such notice shall describe the claim in reasonable detail and include copies of all related notices and documents (including court papers) served on or received by the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ participate in such claim or action, to assume the defense thereof with counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceedingParty, or and to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the that, Indemnitor shall not have the right settle, or consent to control the defense entry of any such claim judgment in any Proceeding, without obtaining a release of the Indemnified Party from, or proceeding unless it has acknowledged in writing acknowledging its obligation to indemnify the Indemnified Party fully from for, all liabilities incurred as a result Damages in respect of the claims underlying such Proceeding. If requested by the Indemnified Party, the Indemnitor shall assume the defense of such claim, subject to the limitations set forth in this Section 8.3. After notice to the Indemnified Party of the Indemnitor's election to assume the defense of such claim or proceeding and then and periodically thereafter provides action, the Indemnitor shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided that, in the event that the Indemnified Party shall reasonably sufficient evidence determine, based upon the advice of its outside legal counsel, that (x) it may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnitor in respect of such claim or any litigation relating thereto, or (y) there is a conflict of interest between the Indemnitor and the Indemnified Party, then the Indemnified Party shall have the right at all times to have one counsel participate in the defense of such claim at the expense of the ability Indemnitor. In such an event, the Indemnitor shall not assume the defense of such Proceeding on behalf of the Indemnified Party and the Indemnified Party shall assume its own defense and the Indemnitor shall pay the reasonable fees and expenses of such counsel to satisfy any such liabilitiesthe Indemnified Party. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceedingProceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding any Proceeding that it is obligated to defend hereunder within twenty thirty (2030) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free have the right to dispose undertake the defense and settlement of the matterany such Proceeding, at the expense of the Indemnitor's expense; provided that, in any way in which if the Indemnified Party deems assumes the defense of any such Proceeding, the Indemnified Party shall not settle such Proceeding prior to final judgment thereon or forego any appeal with respect thereto without the prior written consent of the Indemnitor (which consent may not be in its best interestunreasonably withheld).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Star Scientific Inc), Asset Purchase Agreement (North Atlantic Trading Co Inc)
Conduct of Proceedings. If Each Party and each other Indemnified Person shall have the right, but not the obligation, to contest, defend and litigate any claim claim, action, suit or proceeding covered by any third party alleged or asserted against it arising out of any matter in respect of which it is entitled to be indemnified hereunder and the foregoing agreements to indemnify reasonable costs and hold harmless shall arise, the party who seeks indemnification expenses thereof (the "Indemnified Party"including reasonable attorneys’ fees and expert witness fees) shall give be subject to the said indemnity; provided that the Indemnifying Party shall be entitled, at its option, to assume and control the defense of such claim, action, suit or proceeding at its expense upon its giving written notice thereof to the other party (Indemnified Person, and such Indemnifying Party shall conduct with due diligence and in good faith the "Indemnitor") promptly after defense of any claim against such party, whether or not the Indemnifying Party shall be joined therein, and the Indemnified Person shall cooperate with the Indemnifying Party learns in such defense. The Indemnified Person may elect to participate through separate counsel in the defense of any such claim, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (a) there exists a material conflict of interest between the Indemnifying Party and such Indemnified Person in the conduct of the existence defense of such claim or proceeding; provided, however, that (b) the Indemnifying Party did not employ counsel to assume the defense of such claim within a reasonable time after notice of the commencement thereof or (c) the Indemnified Party's failure Person reasonably concludes and specifically notifies the Indemnifying Party that there may be specific defenses available to give the Indemnitor prompt notice shall not bar the Indemnified Party's right it which are different from or additional to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable those available to the Indemnified Indemnifying Party. In each of such cases the Indemnifying Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result settlement of such claim or proceeding and then the reasonable fees and periodically thereafter provides expenses of counsel engaged by the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party Person shall be free to dispose of the matter, at the expense of the IndemnitorIndemnifying Party. Indemnifying Party shall give prompt written notice to Indemnified Person of any proposed settlement of an indemnified claim. Indemnifying Party may not, without Indemnified Person's prior written consent, settle or compromise any claim or consent to the entry of any judgment regarding which indemnification is being sought hereunder unless such settlement, compromise or consent (i) includes an unconditional release of Indemnified Person from all liability arising out of such claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Indemnified Person, and (iii) does not contain any equitable order, judgment or term (other than the fact of payment or the amount of such payment) that in any way in which manner affects, restrains or interferes with the business of Indemnified Party deems to be in Person or any of its best interestAffiliates.
Appears in 2 contracts
Samples: Engineering, Procurement and Construction Agreement, Engineering, Procurement and Construction Agreement
Conduct of Proceedings. If any Indemnified Person becomes aware of any third party claim against any of the Group Companies or proceeding covered by the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof successors to the other party whole or any part of their businesses (including any notification of a Tax audit) after Completion and if this claim is, in the "Indemnitor") promptly after the Indemnified Party learns of the existence reasonable opinion of such claim or proceeding; providedIndemnified Person, however, that the Indemnified Party's failure likely to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have Persons the right to employ counsel reasonably acceptable make a Claim against the Guarantor :
(A) the Indemnified Person shall give notice to the Indemnified Party to defend against any such Guarantor of this third party claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof Business Days of the Purchaser becoming aware of such third party claim;
(B) the Guarantor may within a period of ten (10) Business Days from the Indemnified Party date of receipt of the notice mentioned in paragraph (a) above or such shorter time specified without delay, in the notice as event of urgent proceedings or Tax proceedings, provide the circumstances Purchaser with the name of the matter may dictate)representative responsible for assisting, on behalf of the Guarantor and at the Guarantor ‘ cost, in the negotiations or hearings relating to such third party claim;
(C) the Purchaser shall, and shall procure that the Group Companies or the successors to the whole or any part of their businesses shall, cooperate with this representative and provide all assistance to enable the representative to assess the third party claim in question;
(D) notwithstanding the appointment of a representative by the Guarantor, the Indemnified Party Person shall assume the defence of such third party claim and shall be free to dispose take any action that it shall deem appropriate for best defending the interests of the matterIndemnified Person and in particular instigating, at continuing or ceasing any arbitration or court proceedings, or reaching a settlement. The Purchaser shall, and shall procure that the expense Group Companies (or the successors to the whole or any part of their businesses) shall inform the Guarantor of any material changes in circumstances of any such proceedings and shall provide the Guarantor with all information reasonably requested by it in relation thereto. The Purchaser undertakes not to establish nor communicate regarding such third party claims without obtaining the prior agreement of the Indemnitor, in any way in which Guarantor on the Indemnified Party deems proposed defence to be in its best interestsuch claim.
Appears in 1 contract
Conduct of Proceedings. If Grantor fails to defend any claim such condemnation or proceeding covered by expropriation proceedings to Lender’s satisfaction, Lender may undertake the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of the existence defense of such claim a proceeding for and on behalf of Grantor. To this end, Grantor irrevocably appoints Lender as Grantor’s agent and attorney-in-fact, such agency being coupled with an interest, to bring, defend, adjudicate, settle, or proceedingotherwise compromise such condemnation or expropriation claims; providedit being understood, however, that that, unless one or more Events of Default (other than the Indemnified Party's failure condemnation or expropriation of the Property) then exists under this Mortgage, Lender will not agree to give the Indemnitor prompt notice any final settlement or compromise of any such condemnation or expropriation claim without Grantor’s prior approval, which approval shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceedingbe unreasonably withheld. The Indemnitor Application of Net Proceeds. Lender shall have the right to employ counsel reasonably acceptable receive all proceeds derived or to be derived from the Indemnified Party to defend against condemnation, expropriation, confiscation, eminent domain, inverse condemnation, or any permanent or temporary requisition or taking of the Property, or any part or parts of the Property (“condemnation proceeds”). In the event that Grantor should receive any such claim or proceedingcondemnation proceeds, Grantor agrees to immediately turn over and to pay such proceeds to Lender. All condemnation proceeds, which are received by, or which are payable to compromiseeither Grantor or Lender, settle shall be applied, at Lender’s sole option and discretion, and in such manner as Lender may determine (after payment of all reasonable costs, expenses and attorneys’ fees necessarily paid or otherwise dispose incurred by Grantor and/or Lender), for the purpose of: (a) replacing or restoring the condemned, expropriated, confiscated, or taken Property; or (b) reducing the then outstanding balance of the sameIndebtedness, if together with interest thereon, with such payments being applied in the Indemnitor deems it advisable to do so, all at manner provided in this Mortgage. Lender’s receipt of such condemnation proceeds and the expense application of the Indemnitor; such proceeds as provided that the Indemnitor in this Mortgage shall not have affect the right to control the defense lien of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interestthis Mortgage.
Appears in 1 contract
Samples: Mortgage (Highwater Ethanol LLC)
Conduct of Proceedings. If Each Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate any claim claim, action, suit or proceeding covered by any third party alleged or asserted against it arising out of any matter in respect of which it is entitled to be indemnified hereunder and the foregoing agreements to indemnify reasonable costs and hold harmless shall arise, the party who seeks indemnification expenses thereof (the "Indemnified Party"including reasonable attorneys’ fees and expert witness fees) shall give be subject to the said indemnity; provided that the Indemnifying Party shall be entitled, at its option, to assume and control the defense of such claim, action, suit or proceeding at its expense upon its giving written notice thereof to the other party (Indemnified Person, and such Indemnifying Party shall conduct with due diligence and in good faith the "Indemnitor") promptly after defense of any claim against such party, whether or not the Indemnifying Party shall be joined therein, and the Indemnified Party learns shall cooperate with the Indemnifying Party in such defense. The Indemnifying Party shall have charge and direction of the existence defense and settlement of such claim or proceedingclaim; provided, however, that without relieving the Indemnified Indemnifying Party of its obligations hereunder or impairing the Indemnifying Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the ’s right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify settlement thereof, the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor may elect to satisfy any such liabilities. The parties will fully cooperate participate through separate counsel in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If claim, but the Indemnitor fails to acknowledge in writing its obligation to defend against or settle fees and expenses of such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party counsel shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the such Indemnified Party deems to be unless (a) the employment of counsel by such Indemnified Party shall have reasonably concluded that there exists a material conflict of interest between the Indemnifying Party and such Indemnified Party in its best interest.the conduct of the defense of such claim or
Appears in 1 contract
Samples: Wind Energy Project Agreement
Conduct of Proceedings. If (a) In the event that any claim person or entity not a party to this Agreement (including a governmental authority) shall levy an assessment or commence or file or threaten to commence or file any lawsuit or proceeding, which pending or threatened lawsuit or proceeding covered by the foregoing agreements or assessment may result in any Losses subject to indemnify and hold harmless shall ariseindemnification under this Agreement (collectively, the party who seeks indemnification ("PROCEEDINGS"), then the "Indemnified Party") shall give written notice thereof to the other indemnified party (the "IndemnitorINDEMNIFIED PARTY") promptly after the Indemnified Party learns of the existence shall provide written notice of such claim Proceeding to the indemnifying party (the "INDEMNIFYING PARTY") as soon as is reasonably practicable but in any event within thirty (30) days after discovery or proceeding; receipt of such Proceeding (provided, however, that failure to notify within such time period shall not rescind or revoke the Indemnified Indemnifying Party's failure obligation to give indemnify but shall only reduce the Indemnitor prompt notice shall not bar amount of the Indemnified Party's right indemnification to indemnification unless the extent that the Indemnifying Party is damaged by such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. delay).
(b) The Indemnitor Indemnifying Party shall have the right option, at its own cost and expense (which cost and expense shall not be credited against or recoverable from the Deferred Payment and shall have no impact or effect whatsoever upon the maximum indemnity amounts provided in Section 11.4), to employ participate in or assume control of the defense of such Proceedings (including, without limitation, monitoring and conducting all discussions and negotiations with any insurance carrier) by retaining counsel for and reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if . If the Indemnitor deems it advisable Indemnifying Party elects to do so, all at the expense assume control of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation Proceedings, the Indemnifying Party shall give prompt written notice to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding election and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence shall have the right to participate in the defense of such assessment or such pending or threatened Proceeding or proceeding at its own expense.
(c) If the Indemnifying Party does not, within thirty (30) days of its receipt of the ability of written notice specified in subsection (b) above, notify the Indemnitor to satisfy any such liabilities. The parties Indemnified Party that it will fully cooperate assume control or otherwise participate in any such action, and shall make available to each other any books or records useful for the defense of any such claim Proceeding or proceeding. If thereafter ceases so to do, the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such claim.
(or such shorter time specified in d) In the notice as event that the circumstances defense is tendered to the Indemnifying Party and the Indemnifying Party assumes control of the matter may dictate)defense, the Indemnified Party shall be free cooperate and assist the Indemnifying Party in defending any such Proceeding.
(i) If the Indemnifying Party receives a monetary settlement offer (the terms of which provide only for a monetary settlement in exchange for a complete release and dismissal with prejudice of any Proceeding) that such party desires to dispose of accept, it shall request the matter, at the expense of the Indemnitor, in any way in which Indemnified Party's consent. If the Indemnified Party deems has failed to consent to such settlement within thirty (30) days of its receipt of the settlement offer (or such shorter period as is provided in the settlement offer), the Indemnifying Party shall have the right to pay the amount of settlement to the Indemnified Party, in which event the Indemnifying Party shall be relieved of any further liability or obligation arising out of such claim and the Indemnified Party shall be entitled to proceed with the defense of such claim.
(ii) If the Indemnifying Party receives a settlement offer, the terms of which provide for performance or compliance other than or in addition to a monetary payment in exchange for a complete release and dismissal with prejudice as referenced above, such settlement shall only be accepted with the Indemnified Party's consent.
(f) In effecting the settlement of any Proceeding, each party shall at all times act in good faith and shall consult with the other. In addition, each party shall take and shall cause its best interestAffiliates to take all reasonable steps to mitigate their Losses upon and after becoming aware of any event which could reasonably be expected to give rise to any Losses.
Appears in 1 contract
Conduct of Proceedings. If any claim or proceeding covered ---------------------- by the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of the existence of such claim or proceeding; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have , (i) take control of the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any defense and investigation of such claim or proceeding, or (ii) employ and engage attorneys of its own choice (subject to compromisethe approval of the indemnified party, settle or otherwise dispose of such approval not to be unreasonably withheld) to handle and defend the same, if the Indemnitor deems it advisable to do so, all at the expense indemnifying party's sole cost, risk and expense, and (iii) compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the IndemnitorIndemnified Party; provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest. All payments made pursuant to Section 11.1 of this Agreement or pursuant to any other claim for indemnification hereunder shall be treated as an adjustment to the Purchase Price.
Appears in 1 contract
Samples: Stock Purchase Agreement (United Defense Industries Inc)
Conduct of Proceedings. (a) In the event that an Indemnitee seeks indemnification pursuant to the terms hereof, the Indemnitee shall give written notice as soon as reasonably practicable, and in any event within 15 days, after an officer of Indemnitee obtains actual knowledge of the event giving rise to such Indemnitee’s claim for indemnification to the Indemnitor specifying in reasonable detail the facts constituting the basis for such claim, the amount, to the extent known, of the claim asserted and, to the extent known as of such time, the amount of Damages sought in connection with such claim; provided, however, that the right of a person to be indemnified hereunder shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnitor is actually prejudiced as a result of such failure. If the Indemnitor disputes its liability with respect to any such claim, the Indemnitor and the Indemnitee shall proceed to negotiate a resolution of such dispute and, if not resolved through negotiations within 20 days, such dispute shall, subject to the terms of this Agreement, be resolved by litigation in an appropriate court of competent jurisdiction. Subject to the terms hereof, the Indemnitor shall pay (by wire transfer in immediately available funds) the amount of any valid claim not more than 30 days after the amount of Damages with respect to any claims for indemnification has been agreed upon or finally judicially determined.
(b) If any claim third party claim, action, suit or proceeding covered by the foregoing agreements to indemnify and hold harmless (a “Third Party Proceeding”) shall arise, the party who seeks indemnification (the "Indemnified Party") Indemnitee shall give written notice thereof to the other party (the "Indemnitor") promptly Indemnitor as soon as reasonably practicable, and in any event within 15 days, after the Indemnified Party learns an officer of Indemnitee obtains actual knowledge of the existence of such claim or proceedingThird Party Proceeding; provided, however, that the Indemnified Party's Indemnitee’s failure to give the Indemnitor prompt provide such notice shall not bar affect the Indemnified Party's Indemnitee’s right to indemnification unless an Indemnitor is actually prejudiced as a result of such failure has materially prejudiced failure. The Indemnitee shall thereupon give the Indemnitor reasonable access to the books and records of the Indemnitee which evidence or support such claim or the act, omission or occurrence giving rise to such claim and the right, upon prior notice during normal business hours, to interview any employee, agent or other Representative of the Indemnitee related thereto. If the Indemnitor disputes its liability with respect to any such claim, the Indemnitor and the Indemnitee shall proceed to negotiate a resolution of such dispute and, if not resolved through negotiations within 20 days, such dispute shall, subject to the terms of this Agreement, be resolved by litigation in an appropriate court of competent jurisdiction. Thereafter, the Indemnitee shall deliver to the Indemnitor's ability , promptly following the Indemnitee’s receipt thereof, copies of all notices and documents (including court documents) received by the Indemnitee relating to defend the claim or proceedingThird Party Proceeding. The Except as otherwise set forth in this Section 8.4(b), the Indemnitor shall have the right to at any time assume the defense of a Third Party Proceeding and, in connection therewith, employ counsel reasonably acceptable to the Indemnified Party Indemnitee (it being acknowledged that O’Melveny & Mxxxx LLP and Debevoise & Pxxxxxxx LLP are reasonably acceptable for the purposes of this Section 8.4(b)) to defend against any such claim or proceedingThird Party Proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; . Unless and until the Indemnitor has provided that notice to the Indemnitee of its election to assume any defense of any Third Party Proceeding, the Indemnitee shall have the right, at its option, to assume and control the defense of the Third Party Proceeding, in which case the Indemnitor shall be liable for the reasonable fees and expenses of one (1) outside counsel (and not any fees and expenses allocated to internal counsel) employed by the Indemnitee (which outside counsel shall be reasonably acceptable to the Indemnitor, it being acknowledged and agreed that O’Melveny & Mxxxx LLP and Debevoise & Pxxxxxxx LLP are reasonably acceptable for such purposes). Notwithstanding anything to the contrary contained in this Section 8.4, in connection with any Third Party Proceeding in which (x) there is a claim for injunctive relief or a claim other than for monetary damages or (y) there are specific defenses available to the Indemnitee which are different from or additional to those available to the Indemnitor and which would be materially adverse to the Indemnitor (as reasonably agreed by the Indemnitor and the Indemnitee), then the Indemnitee shall have the right to control assume and direct the defense of such Third Party Proceeding. In such an event, the Indemnitor shall be liable only for the reasonable fees and expenses of one (1) outside counsel (and not any fees and expenses allocated to internal counsel) employed by the Indemnitee (which outside counsel shall be reasonably acceptable to the Indemnitor, it being acknowledged and agreed that O’Melveny & Mxxxx LLP and Debevoise & Pxxxxxxx LLP are reasonably acceptable for such claim or proceeding unless it has acknowledged purposes). In the event that (i) counsel selected by the Indemnitee shall be unable to represent the Indemnitee in writing its obligation a Third Party Proceeding due to indemnify the Indemnified Party fully an actual conflict of interest under applicable standards of professional responsibility requiring such counsel to withdraw from all liabilities incurred as a result representation of such claim or proceeding Indemnitee and (ii) the Indemnitor, after notice of such conflict, has not timely substituted such counsel with counsel of its choosing reasonably acceptable to the Indemnitee not so conflicted, then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence Indemnitee shall, upon satisfaction of the ability foregoing conditions, have the right to select separate counsel of the Indemnitor its choosing not so conflicted to satisfy any such liabilities. The parties will fully cooperate participate in any such action, and shall make available to each other any books or records useful for the defense of such action on its behalf, at the expense of the Indemnitor; provided, however, that in no case shall Indemnitor be responsible for the reasonable fees and expenses of more than one (1) outside counsel (and not any fees and expenses allocated to internal counsel), which counsel shall be reasonably acceptable to the Indemnitor (it being acknowledged and agreed that O’Melveny & Mxxxx LLP and Debevoise & Pxxxxxxx LLP are reasonably acceptable for such claim or proceedingpurposes). If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding Proceeding within twenty thirty (2030) days after receiving notice thereof from the Indemnified Party Indemnitee (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Indemnitee shall have the right to undertake the defense and settlement of any such Third Party shall be free to dispose of the matterProceeding, at the expense Indemnitor’s expense; provided, however, that (i) if the Indemnitee assumes the defense of any such Third Party Proceeding, the Indemnitee shall not settle such Third Party Proceeding prior to final judgment thereon or forego any appeal with respect thereto without the prior written consent of the Indemnitor (which consent may not be unreasonably withheld) and (ii) the Indemnitor may participate in (but not control) the defense of such action, with its own counsel at its own expense; provided, however, that the Indemnitor shall at no time be liable for the reasonable fees and expenses of more than one (1) outside counsel (and shall at no time be liable for any fees or expenses of internal counsel) employed by the Indemnitee (which outside counsel shall be reasonably acceptable to the Indemnitor, in any way in which the Indemnified Party deems it being acknowledged and agreed that O’Melveny & Mxxxx LLP and Debevoise & Pxxxxxxx LLP shall be deemed to be in its best interestreasonably acceptable for the purposes of this Section 8.4(b)).
Appears in 1 contract
Samples: Merger Agreement (Doane Pet Care Co)
Conduct of Proceedings. If (a) In the event that any claim Person not a Party to this Agreement (including a Governmental Authority) shall levy an assessment or commence or file or threaten to commence or file any lawsuit or proceeding, which pending or threatened lawsuit or proceeding covered by or assessment may result in any Losses subject to indemnification under this Agreement (each, a “Third Party Claim”), then the foregoing agreements to indemnify and hold harmless shall arisePurchaser Indemnitee or the Seller Indemnitee, as the party who seeks indemnification case may be (the "“Indemnified Party"”) shall give provide written notice thereof (“Notice of Claim”) of such Third Party Claim to the other indemnifying party (the "Indemnitor"“Indemnifying Party”) promptly as soon as is reasonably practicable but in any event within thirty (30) days after the Indemnified Party learns discovery or receipt of the existence notice of such claim or proceeding; Proceeding (provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice notify within such time period shall not bar rescind or revoke the Indemnified Indemnifying Party's right ’s obligation to indemnify but shall only reduce the amount of the indemnification unless to the extent that the Indemnifying Party is damaged by such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. delay).
(b) The Indemnitor Indemnifying Party shall have the right option, at its own cost and expense, to employ assume the defense of such Third Party Claim by retaining counsel for and reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or the same (“Third Party Defense”). If the Indemnifying Party elects to compromise, settle or otherwise dispose assume control of the samedefense of any Third Party Claim, if the Indemnitor deems it advisable Indemnifying Party shall give prompt written notice to do so, all at the expense Indemnified Party of such election and the Indemnitor; provided that the Indemnitor Indemnified Party shall not have the right to control participate in the defense of such assessment or such pending or threatened Proceeding at its own expense. The Indemnifying Party will not be entitled to assume the Third Party Defense to the extent that: (i) the Third Party Claim seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief; or (ii) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation.
(c) In the event that the defense of any such claim or proceeding unless it has acknowledged in writing its obligation Third Party Claim is tendered to indemnify the Indemnified Indemnifying Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Indemnifying Party with reasonably sufficient evidence assumes control of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Third Party (or such shorter time specified in the notice as the circumstances of the matter may dictate)Defense, the Indemnified Party shall be free cooperate and assist the Indemnifying Party in conducting such Third Party Defense. If the Indemnifying Party assumes the defense of any Third Party Claim, it will take all steps necessary in the defense, prosecution, or settlement of such claim and will hold all Indemnified Parties harmless from and against all Losses caused by or arising out of such Third Party Claim. The Indemnifying Party will not consent to dispose the entry of any judgment or enter into any settlement except with the written consent of the matterIndemnified Party; provided that the consent of the Indemnified Party shall not be required if all of the following conditions are met: (i) the terms of the judgment or proposed settlement include as an unconditional term thereof the giving to the Indemnified Parties by the third party of a release of the Indemnified Parties from all liability in respect of such Third Party Claim, (ii) there is no finding or admission of (A) any violation of Law by the Indemnified Parties (or any Affiliate thereof), (B) any violation of the rights of any Person and (C) no effect on any other action or claims of a similar nature that may be made against the Indemnified Parties (or any Affiliate thereof), and (iii) the sole form of relief is monetary damages which are paid in full by the Indemnifying Party. The Indemnifying Party shall conduct the defense of the Third Party Claim actively and diligently, and the Indemnified Party will provide reasonable cooperation in the defense of the Third Party Claim. So long as the Indemnifying Party is reasonably conducting the Third Party Defense in good faith, the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such Third Party Claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement (such consent not to be unreasonably withheld or delayed). If the Indemnifying Party is not reasonably conducting the Third Party Defense in good faith, the Indemnified Party shall have the right to consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party and the Indemnifying Party shall reimburse the Indemnitee promptly for all Losses incurred in connection with such judgment or settlement.
(d) In the event that (i) an Indemnified Party gives Notice of Claim to the Indemnifying Party and the Indemnifying Party fails or elects not to assume a Third Party Defense which the Indemnifying Party had the right to assume under this Section 9.4 or (ii) the Indemnifying Party is not entitled to assume the Third Party Defense pursuant to this Section 9.4, the Indemnified Party shall have the right, with counsel of its choice, to defend, conduct and control the Third Party Defense, at the sole cost and expense of the IndemnitorIndemnifying Party. In each case, in any way in which the Indemnified Party deems shall conduct the Third Party Defense actively and diligently, and the Indemnifying Party will provide reasonable cooperation in the Third Party Defense. The Indemnified Party shall have the right to consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim on such terms as it may deem appropriate; provided, however, that the amount of any settlement made or entry of any judgment consented to by the Indemnified Party without the consent of the Indemnifying Party shall not be determinative of the validity of the claim, except with the consent of the Indemnifying Party (not to be unreasonably withheld or delayed). If the Indemnifying Party does not elect to assume a Third Party Defense which it has the right to assume hereunder, the Indemnified Party shall have no obligation to do so.
(e) Each party to this Agreement shall use its commercially reasonable efforts to cooperate and to cause its employees to cooperate with and assist the Indemnified Party or the Indemnifying Party, as the case may be, in connection with any Third Party Defense, including attending conferences, discovery proceedings, hearings, trials and appeals and furnishing records, information and testimony, as may reasonably be requested; provided that each party shall use its best interest.efforts, in respect of any Third Party Claim of which it has assumed the defense, to preserve the confidentiality of all confidential information and the attorney-client and work-product privileges
Appears in 1 contract
Samples: Asset Purchase Agreement (AgEagle Aerial Systems Inc.)
Conduct of Proceedings. If Each Party and each other indemnitee shall have the right, but not the obligation, to contest, defend and litigate any claim claim, action, suit or proceeding covered by any third party alleged or asserted against it arising out of any matter in respect of which it is entitled to be indemnified hereunder and the foregoing agreements to indemnify reasonable costs and hold harmless shall arise, the party who seeks indemnification expenses thereof (the "Indemnified Party"including reasonable attorneys’ fees and expert witness fees) shall give be subject to the said indemnity; provided that the indemnifying Party shall be entitled, at its option, to assume and control the defense of such claim, action, suit or proceeding at its expense upon its giving written notice thereof to the other party (Indemnified Person. The Indemnified Person shall provide reasonable assistance to the "Indemnitor") promptly after Indemnifying Party, at the Indemnifying Party’s expense, in connection with such claim, action, suit or proceeding. Upon such assumption, the Indemnifying Party shall reimburse the Indemnified Person for the reasonable costs and expenses previously incurred by it prior to the assumption of such defense by the Indemnifying Party. The Indemnifying Party learns shall keep the Indemnified Person informed as to the status and progress of such claim, action, suit or proceeding. Except as set forth in paragraph (c) below, in the event the Indemnifying Party assumes the control of the existence defense, the Indemnifying Party will not be liable to the Indemnified Person under this Article for any legal fees or expenses subsequently incurred by the Indemnified Person in connection with such defense. The Indemnifying Party shall control the settlement of such claim or proceedingall claims over which it has assumed the defense; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice Indemnifying Party shall not bar agree to or conclude any settlement that affects the Indemnified Party's right to indemnification unless such failure has materially prejudiced Person without the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to prior written approval of the Indemnified Party to defend against any such claim or proceedingPerson, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor (whose said approval shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictatebe unreasonably withheld), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.
Appears in 1 contract
Samples: Turnkey Engineering, Procurement and Construction Agreement (Sunpower Corp)
Conduct of Proceedings. If any claim or proceeding covered by the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of the existence of such claim or proceeding; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless except to the extent that such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense compromise, settle, or dispose of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding set forth herein and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.make
Appears in 1 contract
Samples: Asset Purchase Agreement (Chancellor Media Corp of Los Angeles)
Conduct of Proceedings. 6.2.1 If any claim action or proceeding covered by is brought against any of the foregoing agreements to indemnify and hold harmless shall ariseIndemnified Parties in respect of which indemnity may be sought under Clause 6.1 (Right of Indemnification) of this Agreement from the Issuer or the Guarantor, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns must promptly notify the Issuer and the Guarantor of the existence claim in writing.
6.2.2 Subject to Clause 6.2.4 below and no Potential Issuer Event of Default, or Issuer Event of Default having occurred, the Issuer will have the option to assume the defence of any action or proceeding brought against an Indemnified Party, with legal advisers satisfactory to the Indemnified Party (acting reasonably) so long as such claim or proceeding; providedIndemnified Party is satisfied (acting reasonably) that any such action by the Issuer shall not be prejudicial to such Indemnified Party.
6.2.3 The Issuer and/or Guarantor shall not, however, that without the prior written consent of the Indemnified Party's failure , settle or compromise, or consent to give the Indemnitor prompt notice entry of judgment with respect to, any action or proceeding to which this Clause 6.2 relates unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of the matters which are the subject to such action or proceeding.
6.2.4 If the named parties to any action or proceeding include both the Indemnified Party and the Issuer (or either of them) and the Indemnified Party has been advised by counsel that there may be one or more legal defences available to it which are different from or additional to those available to the Issuer, the Issuer shall not bar have the right to assume the defence of that action or proceeding on behalf of such Indemnified Party and the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor Party shall have the right to employ separate counsel reasonably acceptable to at the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose cost of the same, if Issuer and to participate in the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense defence of any such claim action or proceeding unless it has acknowledged in writing its obligation brought against it.
6.2.5 The Issuer undertakes to indemnify the Indemnified Party fully from all liabilities incurred Parties against any loss or liability which any of them incur as a result consequence of such claim the settlement of any action or proceeding effected:
(a) with the prior written consent of the Issuer (which consent must not be unreasonably withheld);
(b) in circumstances where the Issuer has been given notice of the action or proceeding and then has declined the option to defend such action or proceeding under Clause 6.2.2 above; or
(c) if the circumstances set out in Clause 6.2.4 above exist and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence Issuer has been given notice of the ability proceedings and of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for advice of counsel regarding the defense availability of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty separate defences (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictatedescribed at Clause 6.2.4 above), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.
Appears in 1 contract
Samples: Reimbursement and Indemnity Agreement (Midamerican Energy Holdings Co /New/)
Conduct of Proceedings. If any claim or proceeding covered by the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of the existence of such claim or proceeding; providedPROVIDED, howeverHOWEVER, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided PROVIDED that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.
Appears in 1 contract
Conduct of Proceedings. If any claim or proceeding covered by the foregoing agreements to indemnify and hold harmless shall arisearise (by receipt of notice of any such claim or proceeding prior to the expiration of the periods set forth in SECTION 13.2), the party who seeks indemnification (the "Indemnified PartyINDEMNIFIED PARTY") shall give written notice thereof to the other party (the "IndemnitorINDEMNITOR", which, in the case of Principal Holders, shall be the Holder Representative) promptly after the Indemnified Party learns of the existence of such claim or proceeding; providedPROVIDED, howeverHOWEVER, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided PROVIDED that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty thirty (2030) calendar days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, reasonably and in any way in which the Indemnified Party deems to be in its best interest; provided, however, that during such thirty (30) day notice period, the Indemnified Party shall have the right to take any actions it deems appropriate to preserve its rights and avoid prejudicing its defenses with regard to such claim or proceeding; PROVIDED, FURTHER, that if Indemnitor and Indemnified Party agree in advance that both Indemnitor and Indemnified Party would both share liability with respect to a claim or proceeding, the Indemnitor and Indemnified Party shall agree on a joint defense of such claim or proceeding without the requirement for an advance acknowledgement in writing of Indemnitor's obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding.
Appears in 1 contract
Conduct of Proceedings. If (a) In the event that any claim Person not a party to this Agreement (including a governmental authority) shall levy an assessment or commence or file or threaten to commence or file any lawsuit or proceeding, which pending or threatened lawsuit or proceeding covered by or assessment may result in any Losses subject to indemnification under this Agreement (each, a “Proceeding”), then the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other indemnified party (the "Indemnitor"“Indemnified Party”) promptly after the Indemnified Party learns of the existence shall provide written notice of such claim Proceeding to the indemnifying party (the “Indemnifying Party”) as soon as is reasonably practicable but in any event within thirty (30) days after discovery or proceeding; receipt of notice of such Proceeding (provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice notify within such time period shall not bar rescind or revoke the Indemnified Indemnifying Party's right ’s obligation to indemnify but shall only reduce the amount of the indemnification unless to the extent that the Indemnifying Party is damaged by such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. delay).
(b) The Indemnitor Indemnifying Party shall have the right option, at its own cost and expense, to employ assume the defense of any such Proceeding by retaining counsel for and reasonably acceptable to the Indemnified Party to defend against the same. If the Indemnifying Party elects to assume control of the defense of any such claim or proceeding, or to compromise, settle or otherwise dispose the assumption of control of the same, if defense by the Indemnitor deems it advisable Indemnifying Party shall mean the Indemnifying Party recognizes its obligations to do so, all at indemnify the expense Indemnified Party. The Indemnifying Party shall give prompt written notice to the Indemnified Party of such election and the Indemnitor; provided that the Indemnitor Indemnified Party shall not have the right to control participate in the defense of such assessment or such pending or threatened Proceeding at its own expense.
(c) In the event that the defense of any such claim or proceeding unless it has acknowledged in writing its obligation Proceeding is tendered to indemnify the Indemnified Indemnifying Party fully from all liabilities incurred as a result and the Indemnifying Party assumes control of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate)defense, the Indemnified Party shall be free cooperate and assist the Indemnifying Party in conducting such defense.
(d) If the Indemnifying Party receives a monetary settlement offer (the terms of which provide only for a monetary settlement in exchange for a complete release and dismissal with prejudice) with respect to dispose of any Proceeding that such party desires to accept, it shall request the matter, at the expense of the Indemnitor, in any way in which Indemnified Party’s consent. If the Indemnified Party deems has failed to consent to such settlement within ten (10) Business Days of its receipt of the settlement offer (or such shorter period as is provided in the settlement offer), the Indemnifying Party shall have the right to pay the amount of settlement to the Indemnified Party, in which event the Indemnifying Party shall be in its best interestrelieved of any further liability or obligation arising out of such Proceeding and the Indemnified Party shall be entitled to proceed with the defense of such Proceeding.
Appears in 1 contract
Samples: Asset Purchase Agreement (Powersecure International, Inc.)
Conduct of Proceedings. If (a) In the event that any claim claims or proceeding covered demand in respect of which any Indemnified Party would be entitled to indemnification hereunder is asserted against such Indemnified Party by the foregoing agreements to indemnify and hold harmless shall arisea third party, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of shall with reasonable promptness notify the existence Indemnifying Party and the Holder Representative of such claim or proceeding; demand, specifying the nature of and specific basis for such claims or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand, the "Claim Notice"), provided, however, that the Indemnified Party's failure to give the Indemnitor prompt provide timely notice shall not bar affect the indemnification hereunder except to the extent the Indemnifying Party shall have been prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any losses incurred during the period in which the Indemnified Party's right Party failed to indemnification unless give such failure has materially prejudiced notice.
(b) The Indemnifying Party shall have thirty (30) days from the Indemnitor's ability personal delivery or mailing of the Claim Notice (the "Notice Period") to notify the Indemnified Party hereunder with respect to such claim or demand whether or not it desires to defend the Indemnfied Party against such claim or proceedingdemand. The Indemnitor In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the right (but not the obligation) to defend by all appropriate proceedings (including the right to employ counsel reasonably acceptable to the Indemnified Party Party), which proceedings shall be promptly settled or prosecuted by it to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify a final conclusion. If the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor desires to satisfy participate in, but not control, any such liabilities. The parties will fully cooperate in any such action, defense or settlement it may do so at its sole cost and shall make available to each other any books or records useful for the defense of any such claim or proceedingexpense. If requested by the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate)Indemnifying Party, the Indemnified Party shall agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party elects to contest, or, if appropriate and related to the claim in question, in making any counterclaim against any Person. No claim may be free to dispose settled without the consent of the matterIndemnifying Party, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to consent shall not be in its best interestunreasonably withheld.
Appears in 1 contract
Samples: Merger Agreement (Federal Data Corp)
Conduct of Proceedings. 8.1 If any claim is made by a third party against the Company or proceeding covered by the foregoing agreements to indemnify and hold harmless shall arisePurchaser in respect of which the Seller may have a liability under any of the Transaction Documents, excluding the Environmental Deed, the Purchaser shall promptly notify the Seller and where such third party who seeks indemnification (is not a customer, supplier or other person who, at the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of the existence of such claim or proceeding; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend time the claim or proceeding. The Indemnitor is made, has a continuing commercial relationship with the Business:-
(A) the Seller shall have the right to employ counsel reasonably acceptable right, upon notice to the Indemnified Party Purchaser, to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense conduct of all litigation or other proceedings in respect of any such claim and in that connection the Purchaser, or, as applicable, the Company shall give or proceeding unless it has acknowledged cause to be given to the Seller all such assistance as the Seller may reasonably require in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of disputing any such claim and conducting proceedings and shall instruct such solicitors or proceeding. If other professional advisers as the Indemnitor fails Seller may nominate to acknowledge act on behalf of the Purchaser but in writing its obligation accordance with the instructions of the Seller PROVIDED THAT the Seller shall, if required by the Purchaser, make an announcement or give such notification to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified parties engaged in the notice proceedings as the circumstances Purchaser may reasonably require, to the effect that the Seller has conduct of the matter may dictate)Proceedings on behalf of the Purchaser, or, as applicable, the Indemnified Party Company;
(B) the Seller shall be free to dispose keep the Purchaser fully informed of the matterconduct of any proceedings of which it has conduct, but otherwise shall have no obligations to consult the Purchaser on any matter in relation to such proceedings; and where the Seller takes over the conduct of any proceedings pursuant to the provisions of sub-paragraph 8.1.(A) above, the Seller shall indemnify and keep the Purchaser indemnified in respect of the liabilities which are the subject of those proceedings
8.2 If any claim is made against the Purchaser in respect of which the Seller may have a liability under any of the Transaction Documents, excluding the Environmental Deed, the Purchaser shall promptly notify the Seller and where the third party is a customer, supplier or other person who, at the expense time the claim is made, has a continuing commercial relationship with the Business:-
(A) the Purchaser shall retain conduct (unless it elects not to, in which case the provisions of paragraph 8.1 above shall apply) of all proceedings provided always that the Purchaser complies with the provisions of (B) and (C) below;
(B) the Purchaser shall keep the Seller fully informed of the Indemnitorconduct of any proceedings of which it has conduct, shall consult the Seller on any matter which is or likely to be material in relation to any way proceedings and shall take account of all reasonable requirements of the Seller in relation to these; and
(C) the Purchaser shall not make any admission, settlement or comprise of the claim which is the Indemnified Party deems subject of proceedings nor agree to any matter in the conduct of proceedings which may affect the amount of the liability in connection with such claim without the prior approval of Seller, such approval not to be in its best interestunreasonably withheld or delayed.
Appears in 1 contract
Conduct of Proceedings. (a) If any claim claim, action, suit or proceeding arising from any claim of a third-party or otherwise covered by the foregoing agreements to indemnify and hold harmless (a "Proceeding") shall arise, the party who seeks seeking indemnification pursuant to this Article IX (the "Indemnified Party") shall shall, within the relevant limitation period provided for in Section 9.1 above, give written notice thereof to the other party Holder Representative, on behalf of the Holders, or the Acquiror, as applicable (the "Indemnitor") ), describing in reasonable detail the facts and circumstances with respect to the subject matter of such proceeding promptly after the Indemnified Party learns of the existence of such claim Proceeding and shall include (if then known) the amount or proceedingthe method of computation of the amount of such claim; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt and/or proper notice shall not bar limit the Indemnified Party's right to indemnification unless except to the extent that such failure has materially prejudiced the Indemnitor's ability to defend the Proceeding.
(b) In any Proceeding involving a claim or proceeding. The brought by a third party, the Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceedingProceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the IndemnitorAcquiror or the Holders, as applicable; provided that that, (i) the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged acknowledges in writing its its, or in the case of the Holder Representative, the Holders', obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result with respect to such matter; (ii) the Indemnitor shall not, except with the consent of such claim the Indemnified Party, settle, or proceeding and then and periodically thereafter provides consent to entry of any judgment in any Proceeding, without obtaining an unconditional release of the Indemnified Party with reasonably sufficient evidence from all damages in respect of the ability claims underlying such Proceeding; (iii) the Indemnified Party may participate in such settlement or defense through counsel chosen by such Indemnified Party and paid at its own expense and (iv) if in the opinion of counsel for such Indemnified Party, there is a reasonable likelihood of a conflict of interest between the Indemnitor and the Indemnified Party, the Acquiror or the Holders, as applicable, shall be responsible for reasonable fees and expenses of one counsel to satisfy any such liabilitiesIndemnified Party in connection with such defense. The parties will fully cooperate in any such action, and shall shall, to the extent not inconsistent with the preservation of attorney-client or work product privileges, make available to each other any books or records useful for the defense of any such claim or proceedingProceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate)Proceeding, the Indemnified Party shall be free have the right to dispose undertake the defense and settlement of the matterany such Proceeding, at the expense of the IndemnitorAcquiror's or Holders' expense, in any way in which as applicable expense; provided that, if the Indemnified Party deems assumes the defense of any such Proceeding, the Indemnified Party shall not settle such Proceeding prior to final judgment thereon or forego any appeal with respect thereto without the prior written consent of the Indemnitor (which consent may not be in its best interestunreasonably withheld).
Appears in 1 contract
Samples: Merger Agreement (Usa Interactive)
Conduct of Proceedings. 10.1 If the Buyer becomes aware of any third party claim or proceeding covered (a “third party claim”) which might lead to a relevant claim being made the Buyer shall procure that notice thereof is promptly given to the Seller and (subject to the Buyer being indemnified to its reasonable satisfaction by the foregoing agreements to indemnify Seller against all reasonable out-of-pocket costs and hold harmless shall arise, expenses incurred by the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of the existence of such claim or proceeding; provided, however, Buyer consequently arising and provided that the Indemnified Party's any failure to give the Indemnitor prompt such notice shall not bar affect the Indemnified Party's right rights of the Buyer except to indemnification unless such failure has the extent that the Seller is materially prejudiced by such failure) the Indemnitor's ability Buyer:
(a) shall not make any admission of liability, agreement or compromise with any person, body or authority in relation to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such third party claim or proceeding, or to compromise, settle or otherwise dispose without prior consultation with and the prior agreement of the same, if Seller (such consent not to be unreasonably withheld or delayed); and
(b) shall take such action as the Indemnitor deems it advisable to do so, all Seller may request (but at the expense of the IndemnitorSeller) to avoid, dispute, resist, appeal, compromise or defend such third party claim which will give rise to a relevant claim. (Subject to being given an indemnity by the Seller which is reasonably acceptable to the Buyer in all circumstances) take such action as the Seller reasonably requires (at the Seller’s expense) in relation to the relevant claim (as applicable) and permit the Seller to conduct the relevant proceedings.
10.2 If the Seller takes on or takes over the conduct of proceedings and/or negotiations pursuant to paragraph 10.1:
(a) it shall keep the Buyer reasonably informed of proposed meetings with any relevant third party (reasonable shall, for the purposes of this paragraph 10.2, mean providing the Buyer not less than 2 Business Days written notice informing it that such a meeting is to occur and such notice shall include the location, date and time of such meeting), allow an observer appointed on behalf of the Buyer to attend such meetings and advise the Buyer of the outcome of meetings and discussions to which any such observer was not a party or at which he was not present; provided that and
(b) where, in relation to a claim to which this clause 10 applies, the Indemnitor Seller is able to secure a settlement a relevant third party, it shall not have notify the right Buyer in writing and the Buyer shall be under no obligation to control agree to such settlement unless (subject to the defense provisions in this schedule) the Buyer is to be paid the full amount of such settlement to which it is entitled pursuant to this agreement (in which event the Seller shall be released from all liability in respect of the relevant claim).
10.3 The provisions of this paragraph 10 shall apply mutatis mutandis where the Buyer becomes aware of any such potential claim which it may have against a third party in connection with any relevant claim or proceeding unless it has acknowledged potential relevant claim.
10.4 Nothing in writing its this paragraph 10 shall impose any obligation on the Buyer to indemnify do anything which would be detrimental to the Indemnified Party fully from all liabilities incurred as a result of such claim reputation or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence goodwill of the ability Buyer (either alone or in connection with the Business), acting in good faith and in the reasonable judgment of the Indemnitor Buyer.
10.5 The Seller agrees to satisfy any such liabilities. The parties will fully cooperate in any such action, keep information and/or documents given to it pursuant to paragraph 10 confidential and shall make available only to each other any books or records useful use it for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances purpose of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, relevant claim in any way in which the Indemnified Party deems to be in its best interestquestion.
Appears in 1 contract
Samples: Purchase Agreement (Ediets Com Inc)
Conduct of Proceedings. If any claim or proceeding covered by the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified PartyINDEMNIFIED PARTY") shall give written notice thereof to the other party (the "IndemnitorINDEMNITOR") promptly after the Indemnified Party learns of the existence of such claim or proceeding; providedPROVIDED, howeverHOWEVER, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitorlndemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense of any such claim or provided that the Indemnitor shall not have the right to control proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides has provided the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.
Appears in 1 contract
Conduct of Proceedings. If any Indemnified Person becomes aware of any third party claim or proceeding covered by against the foregoing agreements to indemnify and hold harmless shall arisePurchaser, the party who seeks indemnification (Company or the "Indemnified Party") shall give written notice thereof successor to the other party (the "Indemnitor") promptly after the Indemnified Party learns whole or any part of the existence Company’s business (including any notification of a Tax audit) after Completion and if this claim is, in the opinion of such claim or proceeding; providedIndemnified Person, however, that the Indemnified Party's failure likely to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have Persons the right to employ counsel reasonably acceptable make a Claim against the Individual Sellers:
(A) the Indemnified Person shall promptly give notice to the Indemnified Party to defend against Sellers’ Representative of this third party claim, provided that any delay in making such a claim or proceeding, or to compromise, settle or otherwise dispose shall reduce the Indemnification Liability only by the extent of the same, if damage effectively suffered by the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred Individual Sellers as a result of such claim delay;
(B) the Sellers’ Representative may within a period of 30 days from the date of receipt of the notice mentioned in paragraph (a) above or proceeding sooner, in the event of urgent proceedings or Tax proceedings, provide the Purchaser with the name of the representative responsible for attending, on behalf of the Sellers’ Representative and then and periodically thereafter provides at the Sellers’ Representative’s cost, the proceedings relating to such third party claim, provided that the Sellers’ Representative undertakes to indemnify the Indemnified Party Person against any losses, costs, damages and expenses resulting therefrom. The Indemnified Person shall consult with reasonably sufficient evidence any such representative to the extent commercially reasonable and to the extent such consultation would not jeopardize the Indemnified Persons rights with respect to maintenance of the ability attorney/client privilege or otherwise. Any failure to consult shall reduce the Indemnification Liability only by the extent of the Indemnitor to satisfy damage effectively suffered by the Individual Sellers as a result of such failure;
(C) notwithstanding the appointment of a representative by the Sellers or any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense provision of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate)this Agreement, the Indemnified Party Person shall be entitled to assume the defence of such third party claim and shall be free to dispose of the matter, at the expense of the Indemnitor, in take any way in which the Indemnified Party action that it deems to be in its best interestthe interest of the Indemnified Person (including instigating, continuing or ceasing any arbitration or court proceedings, or reaching a settlement).
Appears in 1 contract
Samples: Share Purchase Agreement (Silicon Laboratories Inc)
Conduct of Proceedings. If (i) Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim or proceeding covered by in respect thereof is to be made against the foregoing agreements to indemnify indemnifying party hereunder, promptly notify the indemnifying party in writing thereof. In case any such action shall be brought against any indemnified party and hold harmless it shall arisenotify the indemnifying party of the commencement thereof, the indemnifying party who seeks indemnification (the "Indemnified Party") shall give written notice thereof be entitled to participate in and, to the other extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party, and, after notice from the indemnifying party (to such indemnified party of its election to assume and undertake the "Indemnitor") promptly after defense thereof, the Indemnified Party learns of the existence of such claim or proceeding; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice indemnifying party shall not bar be liable to such indemnified party under this Section for any legal or other expenses incurred by such indemnified party in connection with the Indemnified Party's right to indemnification unless such failure has materially prejudiced defense thereof.
(ii) Notwithstanding the Indemnitor's ability to defend the claim or proceeding. The Indemnitor foregoing, any indemnified party shall have the right to retain its own counsel in any such action, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless: (1) the indemnifying party has agreed in writing to pay such fees and expenses; (2) the indemnifying party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably acceptable satisfactory to the Indemnified Party to defend against such indemnified party in any such claim Proceeding; or proceeding(3) the named parties to any such Proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, or and such indemnified party shall have been advised by counsel in writing that a conflict of interest is likely to compromise, settle or otherwise dispose of exist if the samesame counsel were to represent such indemnified party and the indemnifying party (in which case, if such indemnified party notifies the Indemnitor deems indemnifying party in writing that it advisable elects to do so, all employ separate counsel at the expense of the Indemnitor; provided that indemnifying party, the Indemnitor indemnifying party shall not have the right to control assume the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence thereof on behalf of the ability of the Indemnitor to satisfy any indemnified party and such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party additional counsel shall be free to dispose of the matter, at the expense of the Indemnitorindemnifying party). The indemnifying party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending Proceeding in respect of which any way indemnified party is a party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Proceeding.
(iii) All fees and expenses of the indemnified party (including reasonable fees and expenses to the extent incurred in which connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the indemnified party when it is finally judicially determined that such Indemnified Party deems is entitled to be in its best interestindemnification hereunder.
Appears in 1 contract
Conduct of Proceedings. If any claim or proceeding covered by ---------------------- the foregoing agreements to indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns of the existence of such claim or proceeding; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.
Appears in 1 contract
Samples: Asset Purchase Agreement (Beasley Broadcast Group Inc)
Conduct of Proceedings. 6.2.1 If any claim action or proceeding covered by is brought against any of the foregoing agreements to indemnify and hold harmless shall ariseIndemnified Parties in respect of which indemnity may be sought under Clause 6.1 (Right of Indemnification) of this Agreement from the Issuer, the party who seeks indemnification (the "Indemnified Party") shall give written notice thereof to the other party (the "Indemnitor") promptly after the Indemnified Party learns must promptly notify the Issuer of the existence claim in writing.
6.2.2 Subject to Clause 6.2.4 below and no Potential Issuer Event of Default, or Issuer Event of Default having occurred, the Issuer will have the option to assume the defence of any action or proceeding brought against an Indemnified Party, with legal advisers satisfactory to the Indemnified Party (acting reasonably) so long as such claim or proceeding; providedIndemnified Party is satisfied (acting reasonably) that any such action by the Issuer shall not be prejudicial to such Indemnified Party.
6.2.3 The Issuer shall not, however, that without the prior written consent of the Indemnified Party's failure , settle or compromise, or consent to give the Indemnitor prompt notice entry of judgment with respect to, any action or proceeding to which this Clause 6.2 relates unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of the matters which are the subject to such action or proceeding.
6.2.4 If the named parties to any action or proceeding include both the Indemnified Party and the Issuer (or either of them) and the Indemnified Party has been advised by counsel that there may be one or more legal defences available to it which are different from or additional to those available to the Issuer, the Issuer shall not bar have the right to assume the defence of that action or proceeding on behalf of such Indemnified Party and the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor Party shall have the right to employ separate counsel reasonably acceptable to at the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose cost of the same, if Issuer and to participate in the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor shall not have the right to control the defense defence of any such claim action or proceeding unless it has acknowledged in writing its obligation brought against it.
6.2.5 The Issuer undertakes to indemnify the Indemnified Party fully from all liabilities incurred Parties against any loss or liability which any of them incur as a result consequence of such claim the settlement of any action or proceeding effected:
(a) with the prior written consent of the Issuer (which consent must not be unreasonably withheld);
(b) in circumstances where the Issuer has been given notice of the action or proceeding and then has declined the option to defend such action or proceeding under Clause 6.2.2 above; or
(c) if the circumstances set out in Clause 6.2.4 above exist and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence Issuer has been given notice of the ability proceedings and of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for advice of counsel regarding the defense availability of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty separate defences (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictatedescribed at Clause 6.2.4 above), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.
Appears in 1 contract
Conduct of Proceedings. If Each Party and each other Indemnified Person shall have the right, but not the obligation, to contest, defend and litigate any claim claim, action, suit or proceeding covered by alleged or asserted against it arising out of any matter in respect of which it is entitled to be indemnified hereunder, and the foregoing agreements to indemnify reasonable costs and hold harmless shall arise, the party who seeks indemnification expenses thereof (the "Indemnified Party"including reasonable attorneys’ fees and expert witness fees) shall give be subject to the said indemnity; provided that the Indemnifying Party shall be entitled, at its option, to assume and control the defense of such claim, action, suit or proceeding at its expense upon its giving written notice thereof to the other party (Indemnified Person, and such Indemnifying Party shall conduct with due diligence and in good faith the "Indemnitor") promptly after defense of any claim against such Indemnified Person, whether or not the Indemnifying Party shall be joined therein, and the Indemnified Person shall cooperate with the Indemnifying Party learns in such defense. The Indemnifying Party shall have charge and direction of the existence defense and settlement of such claim or proceedingclaim; provided, however, that without relieving the Indemnifying Party of its obligations hereunder or impairing the Indemnifying Party’s right to control the defense or settlement thereof, the Indemnified Party's failure Person may elect to give participate through separate counsel in the Indemnitor prompt notice shall not bar the Indemnified Party's right to indemnification unless such failure has materially prejudiced the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against defense of any such claim or proceedingclaim, or to compromise, settle or otherwise dispose but the fees and expenses of the same, if the Indemnitor deems it advisable to do so, all such counsel shall be at the expense of such Indemnified Person unless (a) there exists a material conflict of interest between the Indemnitor; provided Indemnifying Party and such Indemnified Person in the conduct of the defense of such claim, (b) the Indemnifying Party did not employ counsel to assume the defense of such claim within a reasonable time after notice of the commencement thereof or (c) the Indemnified Person reasonably concludes and specifically notifies the Indemnifying Party that there may be specific defenses available to it that are different from or additional to those available to the Indemnitor Indemnifying Party. In each such case, the Indemnifying Party shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result settlement of such claim or proceeding and then the reasonable fees and periodically thereafter provides expenses of counsel engaged by the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party Person shall be free to dispose of the matter, at the expense of the Indemnitor, in Indemnifying Party. The amount of any way in which indemnity payment made under Section 12.1 shall be reduced by the amount of all insurance proceeds received by the Indemnified Party deems Person in respect of the event giving rise to be in its best interestthe right of indemnity under Section 12.1.
Appears in 1 contract
Samples: Commercial Scale Demonstration Agreement (Heliogen, Inc.)
Conduct of Proceedings. If Each Party and each other indemnitee shall have the right, but not the obligation, to contest, defend and litigate any claim claim, action, suit or proceeding covered by any third party alleged or asserted against it arising out of any matter in respect of which it is entitled to be indemnified hereunder and the foregoing agreements to indemnify reasonable costs and hold harmless shall arise, the party who seeks indemnification expenses thereof (the "Indemnified Party"including reasonable attorneys fees and expert witness fees) shall give be subject to the said indemnity; provided that the indemnifying Party shall be entitled, at its option, to assume and control the defense of such claim, action, suit or proceeding at its expense upon its giving written notice thereof to the other party indemnified Person. The indemnified Person shall provide reasonable assistance to the indemnifying Party, at the indemnifying Party's expense, in connection with such claim, action, suit or proceeding. Upon such assumption, the indemnifying Party shall reimburse the indemnified Person for the reasonable costs and expenses previously incurred by it prior to the assumption of such defense by the indemnifying Party. The indemnifying Party shall keep the indemnified Person informed as to the status and progress of such claim, action, suit or proceeding. Except as set forth in paragraph (c) below, in the "Indemnitor") promptly after event the Indemnified indemnifying Party learns assumes the control of the existence defense, the indemnifying Party will not be liable to the indemnified Person under this Article for any legal fees or expenses subsequently incurred by the indemnified Person in connection with such defense. The indemnifying Party shall control the settlement of such claim or proceedingall claims over which it has assumed the defense; provided, however, that the Indemnified Party's failure to give the Indemnitor prompt notice indemnifying Party shall not bar agree to or conclude any settlement that affects the Indemnified Party's right to indemnification unless such failure has materially prejudiced indemnified Person without the Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall have the right to employ counsel reasonably acceptable to the Indemnified Party to defend against any such claim or proceeding, or to compromise, settle or otherwise dispose prior written approval of the sameindemnified Person, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor (whose said approval shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictatebe unreasonably withheld), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.
Appears in 1 contract
Samples: Turnkey Engineering, Procurement and Construction Agreement (Panda Global Holdings Inc)
