Common use of Defence of Third Party Claim Clause in Contracts

Defence of Third Party Claim. 8.5.1 If any Claim is instituted or asserted by a third party against the Indemnified Party (which, in the case of Purchaser, includes the Corporation and the SPV after Closing) (each a “Third Party Claim”), then the Indemnifying Party has the right, after receipt of the Indemnified Party's Indemnification Notice under Section 8.4 and upon giving notice to the Indemnified Party within not more than fifteen (15) days of such receipt (or sooner if the nature of the Third Party Claim so requires and if so specified in the Indemnification Notice), to defend the Third Party Claim at its own cost and expense with counsel of its own selection, provided that: (a) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense, provided, however, that the Indemnifying Party reimburses to the Indemnified Party all defence costs and expenses of the Indemnified Party before the date the Indemnifying Party validly exercises its right to defend the Third Party Claim; (b) the Third Party Claim seeks only monetary damages and does not seek any injunctive or other relief against the Indemnified Party; (c) the Indemnifying Party unconditionally acknowledges in writing that it will indemnify and hold the Indemnified Party harmless with respect to the Third Party Claim; and (d) legal counsel chosen by the Indemnifying Party is satisfactory to the Indemnified Party, acting reasonably. The Indemnifying Party shall pay all amounts payable pursuant to a Third Party Claim in accordance with the terms of the settlement or final non-appealable judgment. The Indemnifying Party shall pay the relevant Governmental Entity the amount, if any, necessary to assert the rights of the Indemnified Party to object to a Third Party Claim that relates to Taxes or Tax attributes of the Indemnified Party. 8.5.2 The Indemnifying Party will not be permitted to compromise and settle or to cause a compromise and settlement of any Third Party Claim without the prior written consent of the Indemnified Party, unless: (a) the terms of the compromise and settlement require only the payment of money and do not require the Indemnified Party to admit any wrongdoing, take or refrain from taking any action, acknowledge any rights of the third Person making the Third Party Claim or waive any rights that the Indemnified Party may have against such third Person making the Third Party Claim; and (b) the Indemnified Party receives, as part of the compromise and settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or liabilities it may have with respect to the Third Party Claim. 8.5.3 If the Indemnifying Party fails to give notice of its intention to participate in the Third Party Claim in accordance with Section 8.5.1, then the Indemnifying Party will be deemed to have waived its right to participate in the Third Party Claim and the Indemnified Party will have the right (but not the obligation) to undertake the defence of the Third Party Claim and compromise and settle the Third Party Claim on behalf, for the account and at the risk and expense of the Indemnifying Party. 8.5.4 The Indemnified Party shall, at the request of the Indemnifying Party, make available to the Indemnifying Party or its representatives on a timely basis all documents, records and other materials in the possession of the Indemnified Party, at the expense of the Indemnifying Party, reasonably required by the Indemnifying Party for its use in defending any Third Party Claim, the defence of which it has elected to participate in, and the Indemnified Party shall otherwise cooperate on a timely basis with the Indemnifying Party in the defence of such Claim. 8.5.5 Notwithstanding the other provisions of this Section 8.5, if (i) the Indemnified Party determines in good faith that there is a reasonable probability that a Third Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or (ii) in cases where the Indemnifying Party is also party to the Third Party Claim, the Indemnified Party determines in good faith that joint representation would not be appropriate, then the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such Third Party Claim.

Defence of Third Party Claim. 8.5.1 (a) If any Claim is legal proceeding shall be instituted or any claim or demand shall be asserted by a third party against the Indemnified Party (which, in the case of Purchaser, includes shall include the Corporation and the SPV after ClosingCorporation) (each a “"Third Party Claim”"), then the Indemnifying Party has shall have the right, after receipt of the Indemnified Party's Indemnification Notice under Section 8.4 8.6 and upon giving notice to the Indemnified Party within not more than fifteen (15) 15 days of such receipt (or sooner if the nature of the Third Party Claim so requires and if so specified in the Indemnification Notice)receipt, to defend the Third Party Claim at its own cost and expense with counsel of its own selection, provided that: (ai) the Indemnified Party has shall at all times have the right to fully participate in the defence at its own cost and expense, expense (provided, however, that the Indemnifying Party reimburses to the Indemnified Party all defence costs and expenses of the Indemnified Party before prior to the date the Indemnifying Party validly exercises its right to defend the Third Party ClaimClaim shall be reimbursed by the Indemnifying Party to the Indemnified Party); (bii) the Third Party Claim seeks only monetary damages and does not seek any injunctive or other relief against the Indemnified Party; (ciii) the Indemnifying Party unconditionally acknowledges in writing that it will its obligations to indemnify and hold the Indemnified Party harmless with respect to the Third Party Claim; and (div) legal counsel chosen by the Indemnifying Party is satisfactory to the Indemnified Party, acting reasonably. The . (v) if the amount of the Third Party Claim is greater than the value of the Escrowed Shares then being held under the Escrow Agreement inclusive of reasonably estimated interest and costs, and such Third Party Claim is not subject to the limitations provided in Section 8.4, then the Indemnifying Party shall pay all deliver a letter of credit, surety bond or similar security in form and substance satisfactory to the Indemnified Party, acting reasonably, in the amount by which such Third Party Claim exceeds the outstanding balance of the value of the Escrowed Shares then being held under the Escrow Agreement as security for the payment of amounts payable by the Indemnifying Party to the Indemnified Party pursuant hereto. Amounts payable by the Indemnifying Party pursuant to a Third Party Claim shall be paid in accordance with the terms of the settlement or final non-appealable judgment. . (b) The Indemnifying Party shall pay the relevant Governmental Entity the amount, if any, necessary to assert the rights of the Indemnified Party to object to a Third Party Claim that relates to Taxes or Tax attributes of the Indemnified Party. 8.5.2 The Indemnifying Party will not be permitted to compromise and settle or to cause a compromise and settlement of any Third Party Claim without the prior written consent of the Indemnified Party, unless: (ai) the terms of the compromise and settlement require only the payment of money and do not require the Indemnified Party to admit any wrongdoing, take or refrain from taking any action, acknowledge any rights of the third Person making the Third Party Claim or waive any rights that the Indemnified Party may have against such third Person making the Third Party Claim; and (bii) the Indemnified Party receives, as part of the compromise and settlement, a legally binding and enforceable unconditional satisfaction or release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or liabilities it may have with respect to the Third Party Claim. 8.5.3 (c) Notwithstanding Section 8.7(b), the Indemnifying Party shall not be permitted to compromise and settle or to cause a compromise and settlement of any Third Party Claim relating to Taxes without the prior written consent of the Indemnified Party if such compromise and settlement may have an impact upon Taxes for any period ending after the Closing Date. (d) If the Indemnifying Party fails to give notice of its intention to participate in the Third Party Claim in accordance with Section 8.5.18.7(a), then the Indemnifying Party will shall be deemed to have waived its right to participate in the Third Party Claim and the Indemnified Party will shall have the right (but not the obligation) to undertake the defence of the Third Party Claim and compromise and settle the Third Party Claim on behalf, for the account and at the risk and expense of the Indemnifying Party. 8.5.4 (e) If the Indemnifying Party participates in the defence of a Third Party Claim, then the Indemnified Party will use its reasonable efforts to make available to the Indemnifying Party those employees whose assistance, testimony or presence is necessary to assist the Indemnifying Party in evaluating and participating in the defence of any such claims. (f) The Indemnified Party shall, at the request of the Indemnifying Party, make available to the Indemnifying Party or its representatives on a timely basis all documents, records and other materials in the possession of the Indemnified Party, at the expense of the Indemnifying Party, reasonably required by the Indemnifying Party for its use in defending any Third Party Claim, the defence of which it has elected to participate in, and the Indemnified Party shall otherwise cooperate on a timely basis with the Indemnifying Party in the defence of such Claimclaim. 8.5.5 Notwithstanding (g) The Indemnifying Party's right to defend any Third Party Claim in respect of any Tax or other liability enforceable by Lien against the other provisions property of this Section 8.5, if (i) or any amount receivable by the Indemnified Party determines in good faith that there is a reasonable probability that a Third Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or (ii) in cases where shall only apply after payment by the Indemnifying Party is also party to the Third Party Claimapplicable Governmental Entity or other Person of the amount due in respect thereof. (h) Notwithstanding anything to the contrary, the Indemnified Party determines in good faith that joint representation would not be appropriateobligations of the Vendors, then Ramtron and Purchaser, as the Indemnified Party maycase may be, by notice under this Section 8.7 are subject to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such Third Party Claimtime limitations and limitation on damages set forth in Sections 8.3 and 8.4.

Defence of Third Party Claim. 8.5.1 If any Claim is instituted or asserted by a third party against the Indemnified Party (which, in the case of Purchaser, includes the Corporation and the SPV after Closing1) (each a “Third Party Claim”), then the Indemnifying Party has the right, after After receipt of the Indemnified Party's ’s Indemnification Notice under pursuant to Section 8.4 8.7(1) relating to a Third Party Claim and upon giving notice to the Indemnified Party within not more than fifteen (15) 30 days of such receipt (or sooner if the nature of the Third Party Claim so requires and if so specified in the Indemnification Notice), the Indemnifying Party has the right to defend the Third Party Claim at its own cost and expense with counsel of its own selection, provided that: (a) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense, expense (provided, however, that the Indemnifying Party reimburses to the Indemnified Party all defence costs and expenses of the Indemnified Party before the date the Indemnifying Party validly exercises its right to defend the Third Party Claim); (b) the Third Party Claim does not relate to Taxes or Tax attributes of the Indemnified Party; (c) the Third Party Claim is not likely to create a precedent materially adverse to the interests of the Indemnified Party; (d) the Third Party Claim seeks only monetary damages and does not seek any injunctive or other relief against the Indemnified Party; (ce) the Indemnifying Party unconditionally acknowledges in writing that it will indemnify and hold the Indemnified Party harmless with respect to the Third Party Claim; and (df) legal counsel chosen by the Indemnifying Party is satisfactory to the Indemnified Party, acting reasonably. The Indemnifying Party shall pay all amounts payable pursuant to a Third Party Claim in accordance with the terms of the settlement or final non-appealable judgment. The Indemnifying . (2) From the time the Indemnified Party receives notice of the Third Party Claim, the Indemnified Person shall pay the relevant Governmental Entity the amount, if any, necessary use reasonable efforts to assert protect their rights and the rights of the Indemnified Indemnifying Party to object to a in respect of such Third Party Claim that relates to Taxes or Tax attributes of the Indemnified PartyClaim. 8.5.2 (3) The Indemnifying Party will not be permitted to compromise and settle or to cause a compromise and settlement of any Third Party Claim without the prior written consent of the Indemnified PartyParty (which shall not be unreasonably withheld, conditioned or delayed), unless: (a) the terms of the compromise and settlement require only the payment of money and do not require the Indemnified Party to admit any wrongdoing, take or refrain from taking any action, acknowledge any rights of the third Person making the Third Party Claim or waive any rights that the Indemnified Party may have against such third Person making the Third Party Claim; and (b) the Indemnified Party receives, as part of the compromise and settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or liabilities it may have with respect to the Third Party Claim. 8.5.3 (4) If the Indemnifying Party fails to give notice of its intention to participate in the Third Party Claim in accordance with Section 8.5.18.9(1), then the Indemnifying Party will be deemed to have waived its right to participate in the Third Party Claim and the Indemnified Party will have the right (but not the obligation) to undertake the defence of the Third Party Claim and compromise and settle the Third Party Claim on behalf, for the account and at the risk and expense of the Indemnifying Party. 8.5.4 (5) If the Indemnifying Party participates in the defence of a Third Party Claim, then the Indemnified Party shall use its commercially reasonable efforts to make available to the Indemnifying Party those employees whose assistance, testimony or presence is necessary to assist the Indemnifying Party in evaluating and participating in the defence of such claim. (6) The Indemnified Party shall, at the request of the Indemnifying Party, make available to the Indemnifying Party or its representatives on a timely basis all documents, records and other materials in the possession of the Indemnified Party, at the expense of the Indemnifying Party, reasonably required by the Indemnifying Party for its use in defending any Third Party Claim, the defence of which it has elected to participate in, and the Indemnified Party shall otherwise cooperate on a timely basis with the Indemnifying Party in the defence of such Claimclaim. 8.5.5 (7) Notwithstanding the other provisions of this Section 8.5foregoing, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such Third Party Claim, if (i) the Indemnified Party determines determines, with advice from counsel and in good faith faith, that there is a reasonable probability that a Third Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or ; (ii) in cases where the Indemnifying Party is also party to the Third Party Claim, the Indemnified Party determines determines, with advice from counsel and in good faith faith, that joint representation would not be appropriate; or (iii) the Third Party Claim seeks Damages of an amount which is less than the threshold amount provided for in 8.4(1)(a). Notwithstanding the foregoing sentence, then the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, Party will not be bound by any determination resulting from any compromise or settle such Third Party Claimsettlement effected without its prior written consent (which may not be unreasonably withheld).

Defence of Third Party Claim. 8.5.1 If any (A) From and after the delivery of a Claim is instituted or asserted by a third party against Notice hereunder, the Indemnified Party (which, in the case of Purchaser, includes the Corporation and the SPV after Closing) (each a “Third Party Claim”), then the Indemnifying Party has the right, after receipt of the Indemnified Party's Indemnification Notice under Section 8.4 and upon giving notice to the Indemnified Party within not more than fifteen (15) days of such receipt (or sooner if the nature of the Third Party Claim so requires and if so specified in the Indemnification Notice), to defend the Third Party Claim at its own cost and expense with counsel of its own selection, provided that: (a) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense, provided, however, that the Indemnifying Party reimburses to the Indemnified Party all defence costs and expenses of the Indemnified Party before the date the Indemnifying Party validly exercises its right to defend the Third Party Claim; (b) the Third Party Claim seeks only monetary damages and does not seek any injunctive or other relief against the Indemnified Party; (c) the Indemnifying Party unconditionally acknowledges in writing that it will indemnify and hold the Indemnified Party harmless with respect to the Third Party Claim; and (d) legal counsel chosen by the Indemnifying Party is satisfactory to the Indemnified Party, acting reasonably. The Indemnifying Party Seller shall pay all amounts payable pursuant to a Third Party Claim in accordance with the terms of the settlement or final non-appealable judgment. The Indemnifying Party shall pay the relevant Governmental Entity the amount, if any, necessary to assert the rights of the Indemnified Party to object to a Third Party Claim that relates to Taxes or Tax attributes of the Indemnified Party. 8.5.2 The Indemnifying Party will not be permitted to compromise and settle or to cause a compromise and settlement of any Third Party Claim without the prior written consent of the Indemnified Party, unless: (a) the terms of the compromise and settlement require only the payment of money and do not require the Indemnified Party to admit any wrongdoing, take or refrain from taking any action, acknowledge any rights of the third Person making the Third Party Claim or waive any rights that the Indemnified Party may have against such third Person making the Third Party Claim; and (b) the Indemnified Party receives, as part of the compromise and settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or liabilities it may have with respect to the Third Party Claim. 8.5.3 If the Indemnifying Party fails to give notice of its intention to participate in the Third Party Claim in accordance with Section 8.5.1, then the Indemnifying Party will be deemed to have waived its right to participate in the Third Party Claim and the Indemnified Party will have the right (but not the obligation) to undertake control the defence of such Third Party Claim and to retain (at its expense) counsel of its choice, reasonably acceptable to the Buyer, to represent the Company so long as the Seller has admitted its liability in writing to the Buyer in respect of the Buyer’s Claim against the Seller in respect of the Third Party Claim Claim. Subject to the admission of liability aforesaid, if the Seller exercises its right to control the said defence, then the Buyer shall take (and compromise shall procure that the Company takes) such actions as the Seller shall consider reasonably necessary or appropriate under the circumstances to cooperate with the Seller and settle the its counsel in defending such Third Party Claim on behalf(including procuring that the Company (x) grants to the Seller all necessary powers to represent the Company in connection with such Third Party Claim, for (y) insofar as reasonable, furnishes to the account Seller all necessary information and at documentation concerning the risk Company and expense such Third Party Claim, and (z) follows any reasonable instructions of the Indemnifying PartySeller issued in connection with the defence of such Third Party Claim), and shall refrain (and shall procure that the Company refrains) from taking any action likely to jeopardize or interfere with the defence of such claim. The Buyer may assist, at its expense, in the defence of any Third Party Claim with counsel of its choice, reasonably acceptable to the Seller. The Seller shall keep the Buyer reasonably informed of the development of the underlying claim. 8.5.4 The Indemnified Party shall, at (B) In the request event that the Seller (x) shall not assume control of the Indemnifying Partydefence of a Third Party Claim with reasonable promptness after written notice to such effect by the Buyer, make available or (y) shall notify the Buyer of its intention not to the Indemnifying Party or its representatives on a timely basis all documents, records and other materials in the possession assume control of the Indemnified Party, at the expense defence of the Indemnifying Party, reasonably required by the Indemnifying Party for its use in defending any a Third Party Claim, the Buyer shall conduct (or shall procure that the Company conducts) the defence of which it has elected such Third Party Claim (subject to participate insubsection (iv) below) in good faith and using all reasonable means and defences available to it. The Seller may assist, and the Indemnified Party shall otherwise cooperate on a timely basis with the Indemnifying Party at its expense, in the defence of such Claim. 8.5.5 Notwithstanding the other provisions of this Section 8.5, if (i) the Indemnified Party determines in good faith that there is a reasonable probability that a any Third Party Claim may adversely affect it or with counsel of its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreementchoice, or (ii) in cases where the Indemnifying Party is also party reasonably acceptable to the Third Party Claim, Buyer. The Buyer shall keep the Indemnified Party determines in good faith that joint representation would not be appropriate, then Seller reasonably informed of the Indemnified Party may, by notice to development of the Indemnifying Party, assume the exclusive right to defend, compromise or settle such Third Party Claimunderlying claim.

Defence of Third Party Claim. 8.5.1 If any Claim is instituted or asserted by a third party against the Indemnified Party (which, in the case of Purchaser, includes the Corporation and the SPV after Closinga) (each a “Third Party Claim”), then the Indemnifying Party has the right, after After receipt of the Indemnified Party's Indemnification Notice under pursuant to Section 8.4 6.10(a) relating to a Third Party Claim and upon giving notice to the Indemnified Party within not more than fifteen (15) 15 days of such receipt (or sooner if the nature of the Third Party Claim so requires and if so specified in the Indemnification Notice), the Indemnifying Party has the right to defend the Third Party Claim at its own cost and expense with counsel of its own selection, provided that: (ai) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense, expense (provided, however, that the Indemnifying Party reimburses to the Indemnified Party all reasonable defence costs and expenses of incurred by the Indemnified Party before the date the Indemnifying Party validly exercises its right to defend the Third Party Claim); (bii) the Third Party Claim does not relate to Taxes or Tax attributes of the Indemnified Party; (iii) the Third Party Claim does not relate to a Contract that, in the opinion of Purchaser, is material to the business of the Corporation or Purchaser; (iv) the Third Party Claim seeks only monetary damages and does not seek any injunctive or other relief against the Indemnified Party; (cv) the Indemnifying Party unconditionally acknowledges in writing that it will indemnify and hold the Indemnified Party harmless with respect to the Third Party Claim; and (dvi) legal counsel chosen by the Indemnifying Party is satisfactory to the Indemnified Party, acting reasonably. The Indemnifying Party shall pay all amounts payable pursuant to a Third Party Claim in accordance with the terms of the settlement or final non-appealable judgment. The Indemnifying Party shall pay the relevant Governmental Entity the amount, if any, necessary to assert the rights of the Indemnified Party to object to a Third Party Claim that relates to Taxes or Tax attributes of the Indemnified Party. 8.5.2 (b) The Indemnifying Party will not be permitted to compromise and settle or to cause a compromise and settlement of any Third Party Claim without the prior written consent of the Indemnified PartyParty acting reasonably, unless: (ai) the terms of the compromise and settlement require only the payment of money and do not require the Indemnified Party to admit any wrongdoing, take or refrain from taking any action, acknowledge any rights of the third Person making the Third Party Claim or waive any rights that the Indemnified Party may have against such third Person making the Third Party Claim; and (bii) the Indemnified Party receives, as part of the compromise and settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or liabilities it may have with respect to the Third Party Claim. 8.5.3 (c) If the Indemnifying Party fails to give notice of its intention to participate in the Third Party Claim in accordance with Section 8.5.16.12(a), then the Indemnifying Party will be deemed to have waived its right to participate in the Third Party Claim and the Indemnified Party will have the right (but not the obligation) to undertake the defence of the Third Party Claim and compromise and settle the Third Party Claim on behalf, for the account and at the risk and expense of the Indemnifying Party. 8.5.4 (d) If the Indemnifying Party participates in the defence of a Third Party Claim, then the Indemnified Party will use its commercially reasonable efforts to make available to the Indemnifying Party those employees whose assistance, testimony or presence is necessary to assist the Indemnifying Party in evaluating and participating in the defence of such claim. (e) The Indemnified Party shall, at the request of the Indemnifying Party, make available to the Indemnifying Party or its representatives on a timely basis all documents, records and other materials in the possession of the Indemnified Party, at the expense of the Indemnifying Party, reasonably required by the Indemnifying Party for its use in defending any Third Party Claim, the defence of which it has elected to participate in, and the Indemnified Party shall otherwise cooperate on a timely basis with the Indemnifying Party in the defence of such Claimclaim. 8.5.5 (f) Notwithstanding the other provisions of this Section 8.5foregoing, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such Third Party Claim, if (i) the Indemnified Party determines in good faith that there is a reasonable probability that a Third Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or ; (ii) in cases where the Indemnifying Party is also party to the Third Party Claim, the Indemnified Party determines in good faith that joint representation would not be appropriate. Notwithstanding the foregoing sentence, then the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, Party will not be bound by any determination resulting from any compromise or settle such Third Party Claimsettlement effected in accordance with this Section 6.12(f) without its prior written consent (which may not be unreasonably withheld).